Talking Back to Restraining Orders Online: What the First Amendment Says Is Okay

Posted on March 1, 2015


“If someone puts a restraining order on you, can you write about it online?”

—Google query that brought a visitor here recently

Here are some other search terms that led people to this site last week: “lying to obtain a restraining order,” “false cps reports perjury,” “fake rape restraining order,” “restraining order lie,” “falsely accused of molestation […],” “ex lied on order of protection,” “what happens when a bogus pfa is filed on a police officer[?],” “protection order fraud,” “old restraining order keeping me from coaching,” “ex-girlfriend lied about domestic violence and i lost my career.”

You see why people might be inspired to talk back.

I was introduced last year to how the constitutionally guaranteed right to free speech is qualified. In Chan v. Ellis, an appeal before the Georgia Supreme Court that was brought to my attention, First Amendment privileges are spelled out by two prominent authorities who offered opinions on the case, Profs. Eugene Volokh and Aaron Caplan (the latter a former staff attorney for the American Civil Liberties Union). Their amicus brief opposed the trial court’s issuance of a permanent protection order against Matthew Chan (the appellant) on the grounds that the order exerted an unconstitutional “prior restraint” on Mr. Chan’s lawfully writing about his accuser, Linda Ellis, a self-styled motivational speaker/writer whom Mr. Chan had criticized as a “copyright troll” (someone who threatens to sue people for unsanctioned use of his or her original material).

The First Amendment protects the right to speak about people, so long as the speech does not fall into an established First Amendment exception (such as those for defamation or for true threats). This includes the right to speak about private figures, especially when they do something that others see—rightly or wrongly—as unethical.

Succinctly, the First Amendment licenses a person to write about another, including critically, but not necessarily to write to him or her. In other words, you can say things about a person that s/he doesn’t necessarily want to hear; if you say those things to the person, you could be lawfully restrained by the court from continuing.

About a person is okay; to a person may not be.

Qualifiers are that what you say about someone publicly must be true (you can’t lie about someone, i.e., defame him or her), you must not infringe upon his or her privacy (e.g., by revealing his or her medical history), and you must not threaten him or her (i.e., don’t say, “I’m coming to kill you”).

Otherwise, the Constitution says you’re good.

Can a trial court judge, though, blow off the Constitution and come down on you for criticizing someone who obtained a restraining order against you (even by fraud)? Yes, s/he can. Rightly or wrongly, it happens, and lawful has nothing to do with it. Restraining order rulings and those peripheral to them are largely about spin.

(What do I mean by spin? Literally, words—actually expressed or merely alleged—can be represented to and by the court as “harassment,” which may satisfy a state’s statutory definition of “stalking,” which definition may imply sexual molestation. Alleged statements, then, may effectively implicate someone as a sex offender on public record. I wish I were kidding, but I emphatically am not. In a case I recently reviewed, the defendant was said to have committed harassment by “facial gestures.” This exemplifies spin.)

This writer’s thoughts are these:

  1. If you’re presently under a restraining order, exercise informed caution, because anything you say publicly that can be construed as “harassing” may well be interpreted that way by a lower tier judge (these guys are answerable to no one; they do what they want). These posts are about people who were issued restraining orders or show cause orders simply because they wrote about someone: “Restraining Orders and the First Amendment: A Female Blogger’s Successful Appeal of a Restraining Order That Labeled Her a ‘Cyber-Stalker’” and “The Use of Restraining Orders to Bully Women: Jenny’s Story.” Is a judge likely to throw you in jail for merely speaking about someone? No, but there’s no surefire guarantee. What’s strictly lawful and what’s possible are two different things.
  2. There are constitutional grounds to appeal a judgment against you for simply writing about someone. The questions to ask yourself are: How committed are you? Are you up for more court drama? The Constitution is on your side, but reversing a bad judgment requires appealing it to a higher court.
  3. If a restraining order against you has expired, and what you write isn’t false, invasive, or threatening, then you have a strong basis for opposing any further legal action taken against you so long as what you write is about your former accuser and not to him or her (or anyone associated with him or her).

I was sued for writing about someone, and I wasn’t trying to “tell my side”; I wanted to terminate a nasty hoax that had already consumed years of my life. I speculated about my accuser’s motives, and I used a lot of names. I also reported what I knew to be misconduct and applied to a distant family member of my accuser’s (a pastor) to help me effect a resolution. Had I only written in a blog and had I confined what I wrote to facts that couldn’t be represented as invasive or libelous, the court may not have found for my accuser, particularly if I’d had a lawyer to speak for me.

The point of this post is to inform you of your legal rights, and to assert that purveyors of the truth should never have to hide or censor themselves. This is the United States of America, not North Korea (as Matthew Chan, who’s mentioned above, is wont to remind). It is not the point of this post, however, to downplay the eagerness of the American court system to deny citizens their rights. If judges weren’t ready and willing to violate citizens’ constitutional entitlements, this blog wouldn’t exist in the first place.

Copyright © 2015

*See also Matthew Chan’s guest post on this subject and others of more recent vintage.