Accusation of “Whatever”: How We’ve Forgotten What Restraining Orders Were For

Posted on February 1, 2015


In an offhand response to a comment yesterday, I remarked that restraining orders weren’t meant to provide people with a sense of security; they were meant to secure people from danger.

There’s a distinction, as I also remarked, and it’s been forgotten.

So entrenched an institution of law and so commonplace has the “restraining order” become that people assume that a foreboding or a feeling of unease or apprehension is grounds to petition one (and judicial performance in no way discourages this assumption and may reward it).

I’m even asked, earnestly, “Can I get a restraining order if she called me a bitch?”

My response, though it inclines toward skepticism, is nevertheless, “Who knows?” If a judge says, “Sure,” then the answer is, “Sure.” Whatever the judge says goes. Judicial latitude in these matters is boundless. Statutes may explicitly license the trial court to do “as it sees fit” or “as it deems appropriate.”

By this standard, people are removed from their homes. By this standard, people are denied jobs. By this standard, people are entered into public registries and prohibited from working with or around children and ever seeing their own.

This is how I lost my day-to-day stability to be a normal, reasonable, and gainfully employed person in the community’s eyes [comment submitted four hours ago].

What’s been forgotten is that the motive justification for an unarguably tendentious, superficial, and baggy procedure was real and immediate danger. Restraining orders were conceived as a quick fix to a problem that was both rampant and, more urgently, ignored 35 years ago. That problem was domestic battery.

Today, restraining orders are a quick fix to a new rampant problem: accusation of “whatever.”

Allegations of domestic violence are not today discounted by authorities, as they might have been in the 1970s and 80s, nor is making them scorned by the public as “talking out of church.” Sympathy is all but universal.

Not only, then, is the motive justification for an unarguably tendentious, superficial, and baggy procedure a relic of the past, but violence may not even be alleged in a majority of petitions.

I’ve been in close correspondence with a man who’s challenging the constitutionality of a restraining order against him that exerts “prior restraint.” He’s forbidden to talk about someone online—not temporarily but for all time. He’s been restrained, in other words, for speech acts he hasn’t committed.

In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place. There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional [Cornell University Law School Legal Information Institute].

He’s appealing the trial court’s injunction on First Amendment grounds, and constitutional law is on his side.

Consider, though, that any number of restraining orders are issued on a similar basis. People are restrained not for acts that injured someone but for acts that possibly, perhaps, conceivably could indicate a potential intention to injure someone.

In criminal cases, judges have no reluctance about sternly pronouncing: “Speculation has no place in a courtroom.” Speculation, however, is the heart and soul of civil restraining order cases. Judges may “infer fear” based on the alleged actions of a defendant, and on this tenuously speculative basis, form a ruling whose consequences may exercise a profoundly negative influence on that person’s life.

In other words, people are punished not for things they’ve done, per se, but for things someone feels (or intimates) they might do.

The purpose of restraining orders was not to provide complainants of fear with a sense of security; the purpose of restraining orders was to secure complainants of injury from further harm.

Harm isn’t speculative. It leaves very visible traces.

Copyright © 2015

*Since this post was published it has reportedly become possible for Minnesotans to apply for restraining orders online to prohibit, among other things, “repeated incidents of unwanted…gestures.”