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 RestrainingOrderAbuse.com
*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.”
TALKING BACK to restraining orders 
Joel Bond Gunch
February 11, 2015
The Supreme Court Justice with the salt-and-pepper mane is getting right to the marrow of the controversy. He knows in his big legal brain that the Georgia statute is either overbroad or applied in an overbroad fashion. It’s obvious by his buzzwords in the area of free speech what he’s getting at.
I have been here commenting earlier but just then had a chance to watch the film clips. I wasn’t able to tell for sure, but I suspect that that Justice happens to be the Chief Justice. He asks all the pertinent questions. My prediction again: a reversal and remand. There ought to be floggings for judges who use these meddlesome, authoritarian, despotic, unconstitutional laws to gag someone on the internet. But then I’m biased because I believe in the Bill of Rights.
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Moderator
February 12, 2015
I’m just licking a bug of my own, Larry. But I’ll try to get over to your blog and add some comments and catch up. I’ll have to look into the spam thing. Whatever filter I have works pretty well. Only a few get through a month (and they’re always preposterously obvious). I hope your lady is okay.
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Matthew S. Chan
February 12, 2015
They way it works is the Chief Justice is in the center. The more seniority a justice has, the closer to the center they are. The 3 most vocal justices were also the ones with the least seniority sitting at the far ends. However, they were likely the most savvy when it comes to online speech matters.
Regardless of seniority, the 3 Justices who did speak up and ask questions were very much in tune with our positions.
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James L. (Larry) Smith
February 4, 2015
If you wish to know in detail just how corrupt the appellate courts have gotten, that Orwell’s 1984 is here in its murkiest of darkness for those seeking access to constitutional justice before the appellate judges and justices, just read Prof. Erwin Chemerinsky’s latest book, THE CASE AGAINST THE SUPREME COURT.
It is not a case against scotus. It is an indictment.
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Matthew S. Chan
February 1, 2015
It has been interesting to watch another corner of the Internet regarding the issue of “revenge porn”. Principally, that issue is an invasion of sexual privacy of a visual nature and there are efforts to legislate and criminalize it. I am neither for or against legislation as I can see both sides of the issue. Like restraining orders, revenge porn gets its power from shame and embarrassment. What I do know is that it is one thing passing along private photos of themselves and their partners but it is another thing for a website to extort people for money to take the same photos down.
In the battle against revenge porn, the super feminists EXPANDED their goals to stopping “misogyny”, promoting “cyber civil rights” and extreme “feminist” views. Those people are quick to label and name-call those who prefer a more measured view and caution of violating the First Amendment as revenge porn “apologists” and “misogynists”.
Consequently, many in academic circles (law professors) have shunned themselves from sharing their opinion on the subject because they don’t want to be labeled as a “misogynist”. This required no restraining order at all. This only requires someone calling another person a “misogynist” if a male doesn’t wholeheartedly side with criminalizing it. This one tactic has scared the crap of many male law professors. Women who don’t jump on the criminalization bandwagon are called “traitors to feminism” and ostracized to a corner.
I bring this up because it ties in to the idea that restraining orders are frequently misused because someone’s feelings were hurt along the way by name-calling and critical language. They want to mix in the issue of cyber-bullying to the mix. All of this makes for MORE cases entering the court system to implement and enforce “prior restraint”. And because many local judges are not technology savvy, they believe the “Internet” is one “place” similar to the “telephone network”. Just because we all use the telephone network doesn’t mean we are all in a “shared space”.
Because so many restraining order abuses seem to have the component of communication and personal safety at hand, people need to understand the counter-argument. These short clips provide insight as to what some Georgia Justices thinking regarding stalking statutes and stalking protective orders that is much more fair and balanced than judges in LOCAL courts where runaway “justice” occurs.
Cite One Case From Any Appellate Court That Forbids Speaker from Public Speech About Another Person
Is it OK for Judge to Order Someone Not Talk or Write About Another Person?
Is it Stalking to Expose Information That May Embarrass or Damage Reputation?
Even with True Threats, Can Judge Ban All Speech From a Speaker About Another Person?
Does Police Power Extend to Prior Restraint on Protected Speech?
Does “Safety” Mean Safe from Physical Harm?
Is Safety a Threat of Physical Harm? Is Reputation Damage Sufficient in Stalking Statute?
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Moderator
February 2, 2015
That’s the power of shame and fear of alienation. Just as a restraining order would, the feared reaction of the feminists shuts people up. No one wants to be labeled. Even law professors cower. Basically to do or say anything but “Yes, mistress” is to be a “misogynist.”
Journalists cower under the feminist gaze, which they’ve internalized.
A president of Harvard was run out a few years ago because he “injudiciously” offered the opinion that men and women were constituted differently—and this was at a conference, if I’m remembering right, that invited views on gender. His denouncers were feminist scientists (the most neurotic kind)—and, in short order, feminist everybody.
I’ll have to download the vids to watch later, but it looks like the latter ones, at least, are of a panel of judges. I wish everyone had the opportunity to address such a panel. When judges must be accountable to one another, the sort of “backroom” and “rogue” justice so many complain of is a lot less likely to occur. Something Prof. Aaron Caplan emphasizes is how rarely restraining order rulings are ever appealed to such a panel (= no published opinions = injustice in a vacuum).
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