If a Judge Has Unlawfully Ordered You Never to Speak or Write ABOUT Someone, Matthew Chan Wants to Tell Your Story

Posted on November 15, 2015


“A civil harassment order creates a new crime that can only be committed by the respondent. Actions that would otherwise be lawful—such as attending a school sporting event or placing a telephone call—become potentially criminal. Even if no criminal prosecution follows, other less extreme but nonetheless perilous legal consequences exist. The issuance of a past harassment order can be a factor in favor of issuing a new order. A judge in an unrelated criminal proceeding would be allowed to consider the existence of an earlier harassment order as an indicator of dangerousness, potentially affecting decisions on bail or sentencing.”

—Law Prof. Aaron Caplan

First Amendment advocate Matthew Chan quotes this passage from “Free Speech and Civil Harassment Orders” by Aaron Caplan, professor of law at Loyola Law School and former staff attorney for the American Civil Liberties Union (ACLU), in one of several commentaries Mr. Chan has posted recently about a New Jersey man, Bruce Aristeo, who was issued an “indefinite temporary restraining order” and then jailed for six months on a $75,000 bond for “violating” the order by airing videos on YouTube that were critical of his accuser.

Bruce Aristeo, Jody Raines, indefinite temporary restraining order, New Jersey, Camden County NJ, First Amendment, free speech, prior restraint

This is a still from “Day of Reckoning – Band Aid Justice,” a video by New Jerseyite Bruce Aristeo, who was issued an “indefinite temporary restraining order” and then jailed for six months for allegedly violating it by airing satirical commentaries on YouTube.

Mr. Aristeo’s example provides a case study in the “perilous legal consequences” to which Prof. Caplan refers in the epigraph. Because Mr. Aristeo was under a court injunction when he published YouTube videos about his accuser, Jody Raines, the act was handily represented as a violation of the order, one that caused her to experience “emotional distress.”

Consequently, Mr. Aristeo was packed off to jail. (In New Jersey, if a complainant alleges “emotional distress,” this means s/he is a “victim” of “stalking.” No threat or physical harm is required to satisfy the statute.)

As the previous post on this site sought to explain, a court can prohibit one person from committing speech acts directed to another person (like phone calls, texts, and emails), but it can’t constitutionally forbid speech acts about a Cornell_PRperson. The court can sanction someone for defaming another, that is, for publicly lying about him or her, or for explicitly threatening him or her, but a court-ordered prohibition against speech about a person, speech that is either truthful or merely opinion and isn’t explicitly threatening, is in unlawful contravention of the First Amendment.

Such a prohibition is called a “prior restraint,” because it criminalizes speech before it has even occurred.

Mr. Chan was issued a prior restraint in 2013. In March of this year, the restraining order against him was overturned by the Georgia Supreme Court on constitutional grounds. Prof. Caplan, quoted above, and UCLA Law Prof. Eugene Volokh submitted an amicus brief to the court in support of Mr. Chan’s appeal. In it, the two constitutional law authorities explain the to someone/about someone distinction between the lawful and unlawful exercise of judicial power. Mr. Chan’s is one of several cases mentioned in a recent Washington Post article by Prof. Volokh that elaborates and reemphasizes the distinction.

Mr. Chan has expressed his wish to collect and post “prior restraint orders as I get them for everyone to see.” He says, “When I get about 8 to 10 of these things on display, I think it will trigger some outrage in the tech blog community.”

Anyone who’s been issued an order of the court indefinitely prohibiting him or her from speaking about someone is encouraged to share the details of his or her case with Mr. Chan through his website Defiantly.net.

Copyright © 2015 RestrainingOrderAbuse.com

*In one of his exposés about Bruce Aristeo’s case, Mr. Chan includes a transcript of an exchange between the judge, the female prosecutor, and Mr. Aristeo’s public defender that’s very telling. The judge had not seen the YouTube videos that were the “reason” for his ordering Mr. Aristeo to be jailed (and histrionically nominated a “flight risk”), and the judge confesses his ignorance of the Internet. He also betrays an unfounded belief that the videos could be harbingers of impending homicide. To put this belief in perspective, Mr. Aristeo’s accuser, who has a YouTube Channel, had responded to the videos by posting one of her own that tauntingly suggests she has castrated Mr. Aristeo and is feeding his testicles to her dog (a significant commentary on the sincerity of her alleged “emotional distress”). She, of course, was not censured by the court, and the video, “Smiles for Ruger,” can still be found on YouTube.

Bruce Aristeo, Jody Raines