How far does the First Amendment go?
November 21, 2020 3:04 AM   Subscribe

I know a person who has schizophrenic tendencies and also a number of restraining orders/stalking charges. He has been prohibited by court order from making any mention of the persons who have requested these orders on social media or his website. I'm curious about the legal basis for this. While I sympathize with the victims, I wonder about the implications for the first amendment. Obviously, YANHL.
posted by matkline to Law & Government (11 answers total) 1 user marked this as a favorite
A specific legal phrase that might aid your research is "prior restraint."
posted by saladin at 4:24 AM on November 21, 2020 [2 favorites]

There's not enough context to know for sure, but I wonder if these order is about preventing libel, which does have significant case law.
posted by AlexiaSky at 4:40 AM on November 21, 2020 [2 favorites]

Or harassment? Like how your right to free speech does not extend to a right to follow me around and verbally abuse me. Speech that causes harm can be limited.
posted by mskyle at 4:46 AM on November 21, 2020 [19 favorites]

The old saw is, "Your right to swing your fist ends at my nose."
posted by tmdonahue at 4:57 AM on November 21, 2020

Were this a naked prior restraint it would face a very high bar to be constitutional.

However, the bar is far lower if it is a punishment for past misconduct or a condition of leniency for past misconduct - a probation, parole or adjournment contemplating dismissal. I wouldn’t be surprised if that was the case here.
posted by MattD at 5:08 AM on November 21, 2020 [9 favorites]

My answer was short above , but there are all kinds of ways that law says this speech is not allowed. There is libel, there is NDAs , there's laws in the books in multiple sources about inappropriate language, there's laws on harassment, there's laws about threats, there laws about speaking in public about ongoing court proceedings. First amendment rights are really about the expression of ideas, about religion, about press, about assembly. Big things in which the goverment can exert significant control over political discourse when it is limited on the state or federal level. It does not cover talking about what you think about other people, it does not cover repetitive harmful behavior, it doesn't cover lot of small individual actions.
posted by AlexiaSky at 5:14 AM on November 21, 2020 [13 favorites]

I am not a lawyer, but at the point when a restraining order enters the picture then a court has determined somebody has done something very wrong, and possibly criminal. Since you mention "stalking charges" in your question, I'm guessing this person has been charged with and sentenced for a crime that resulted in a restraining order or orders that define or limit their behavior, possibly in exchange for not serving time in jail/prison.

Rights are not absolute - you don't have an absolute right to freedom if you've committed a crime, you can be imprisoned. Likewise, speech: you don't have an absolute right to say anything you want, at any time, without consequence. The state has to show good reasons for curtailing someone's speech, especially if we're talking about prior restraint of speech vs. consequences for speech that has caused harm.

But it sounds like this person has caused harm through their actions and the court has found that specifically restricting their ability to use social media / his website is reasonable given their prior actions that have caused harm to the victims to prevent further / ongoing harm. This is less about prior restraint of speech, I'm guessing, than recognizing that this person has abused these tools in the past and further use of these tools is likely to cause further harm.

Your concern for the First Amendment is misplaced here. The First Amendment is supposed to protect speech from the government censoring or prohibiting types of speech, etc. so that people have the ability to engage in political speech, religious freedoms, and so forth. It is not meant to protect a stalker's ability to harass their victims.

Would you find a restraining order a threat to free speech if it said the target cannot, say, stand on a street corner handing out pamphlets that mention the people that have been stalked?

A court could abuse restraining orders, I suppose, by using a restraining order to prohibit criticism of the judge or government -- but in this case it seems that the person subject to the restraining order did, in fact, harass people and a court decided that it justified prohibiting their future interactions with those people.
posted by jzb at 5:19 AM on November 21, 2020 [11 favorites]

The OP's concern for the First Amendment is not misplaced here. OP raises a legitimate question, because a judge is a state actor.

I agree that "rights are not absolute." Due process requires that procedural protections be used before certain rights can be limited, and this presumably was done in the course of hearings held by the court, with notice to the defendant and an opportunity to be heard. The order is probably based on past conduct by the defendant that was perceived as a threat to the person(s) requesting the orders. The court has to balance the undeniable right to free speech with the risk of harm to the complaining parties.

We frequently hear this misformulation: "The First Amendment is intended to protect" only political speech, religious speech, etc. It is much broader. A state legislature has no power or authority to ban, for example, science fiction, romance novels, or poems that don't follow metered lines.
posted by yclipse at 5:34 AM on November 21, 2020 [5 favorites]

However, the bar is far lower if it is a punishment for past misconduct or a condition of leniency for past misconduct - a probation, parole or adjournment contemplating dismissal. I wouldn’t be surprised if that was the case here.

What you describe is a fairly routine condition of bond (i.e., pretrial non-incarceration) once criminal charges have been filed (by the police or a lay warrant) such as stalking, harassment, violation of restraining orders, etc. These orders are often continued through adjudication, be it after trial or as part of a plea bargain.
posted by likeatoaster at 5:49 AM on November 21, 2020

Near my home town in Southern California in the 80s there was a case where this happened and was protected by the First Amendment. A guy was putting up signs in various places accusing local politicians of all kinds of things. An
appeals court decided the First Amendment protected the guy's right to put up these signs, stressing the importance of the right to political speech. I imagine it could be different if he had been going after private citizens.
posted by johngoren at 7:00 AM on November 21, 2020

This law review article may help: Aaron H. Caplan, Free Speech and Civil Harassment Orders, 64 HASTINGS L.J. 781 (2013). Here's the abstract:

Every year, U.S. courts entertain hundreds of thousands of petitions for civil harassment orders, i.e., injunctions issued upon the request of any person against any other person in response to words or behavior deemed harassing. Definitions of “harassment” vary widely, but an often-used statutory formula defines it as “a course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” Civil harassment statutes can protect the safety, privacy, and autonomy of victims, but when courts declare that speech is harassing, or issue injunctions against future speech on grounds that it would harass, they may violate constitutional rules against vagueness, overbreadth, and prior restraint. Unfortunately, civil harassment litigation includes structural features that cause courts to systematically underestimate the free speech dangers.

This Article proposes methods to interpret and apply civil harassment statutes that will avoid most serious free speech problems. The key is to define harassment as unconsented contact or surveillance that endangers safety and privacy. The long-established tort and criminal law concepts of battery, assault, threats, trespass, and intrusion into seclusion lie at the core of this definition. Conduct resembling outrage (intentional infliction of emotional distress) lies at the periphery. Speech about the victim directed to other listeners (especially defamation and malicious prosecution) falls outside the definition altogether. By focusing on the nature of the contact between the parties, rather than on the content of one party’s allegedly harassing speech, courts will be better able to apply civil harassment statutes in a constitutionally acceptable manner.
posted by mnumberger at 8:50 AM on December 2, 2020

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