What Does It Mean When a Defendant Is Enjoined by the Court from Making “Indirect Contact” with the Plaintiff?

Posted on September 2, 2016


“If the writing does not request or direct a third party to contact you vicariously, and or request a third party to forward any communication to you, there is no indirect contact. Essentially, the restrained party is not prevented from communicating about you, but rather communicating with you… [emphases added].”

—California attorney Timothy Miranda

Mr. Miranda, who identifies himself as a domestic violence lawyer, puts it succinctly and correctly.

Indirect contact” is often prohibited on civil injunctions, and this prohibition is typically expressed this way: “no third-party contact.” This doesn’t mean the “restrained party” on a restraining order is prohibited from talking about the plaintiff with anyone (or the world at large); it means she can’t communicate with the plaintiff, either directly (e.g., by phone, email, text, or in person) or through another.

An example of violating a “no third-party contact” prohibition would be asking a mutual friend to convey a message from you to the “protected party” or so-called “victim.” (Worth parenthetical mention is that some courts may interpret attorney-mediated contact to be a violation, so grave care should be exercised even in that instance. A respondent to this blog reported he was jailed for merely asking his attorney to communicate a message. The attorney didn’t fulfill the request. The man was incarcerated, anyway, for his intent to indirectly contact the plaintiff, his ex-wife.)

Washington attorney Derek Michael Smith elucidates the distinction between lawful speech to a third party and unlawful “indirect contact” with a plaintiff on a restraining order.

That’s the clean-and-tidy stuff. Motives for restraining orders are often other than they appear, however. Often, preventing a defendant from talking about him or her is a plaintiff’s (ulterior) motive for petitioning a restraining order from the court, and it’s all too easy for a plaintiff to persuade a trial judge that speech about him or her to others is “harassment.”

Moreover, it’s not uncommon for plaintiffs to want a defendant jailed on any pretext. Spite and malice are not atypically (among) the reasons plaintiffs seek court injunctions in the first place.

Speech about someone that isn’t false or threatening is protected by the First Amendment, even if that person has a restraining order against you. S/he may object to that speech, but if it isn’t directed to him or her, no legal grounds exist for calling it harassment. Coercive, objectionable, and even emotionally upsetting speech about someone is protected. Opinions about and truthful criticism of others that don’t threaten and aren’t directed to them is not “harassment.” Such criticism may defame—saying someone “stinks” is hardly likely to burnish his or her reputation much—but legal liability for defamation requires that a statement be untrue, not merely unwanted, unpleasant, or unseemly.

That said, I’ve been prosecuted three times this year based exclusively on my writing about the plaintiffs (and all three actions were coordinated by the same people). Two of the procedures exposed me to immediate jail time (16 months total), and none of them was summarily dismissed for lacking meritorious grounds.

Writing about someone is easily represented today as “cyberstalking,” “harassment,” “threat,” etc. These words are nebulously defined and provoke knee-jerk reactions from prosecutors and trial judges. All a plaintiff need do is claim speech is “frightening” or “invasive.” No judge is likely to read and assess the speech, and police and judicial bias in favor of complainants who allege “fear” has been conditioned by billions of dollars over the past 20 years under the Violence Against Women Act (VAWA). Responses by agents of the justice system are all but automatic.

Too, it’s well-established that the law is two decades out of step with the times. To trial judges, the Internet is still newfangled and suspect.

As Judge Roger Titus clarified in U.S. v. Cassidy, the Internet is just an electronic “bulletin board” that someone may elect to look at or not. Publications on a blog, for instance, do not “contact” people, even if they’re indexed by Google. If someone you talk about on Facebook or Twitter chooses to read what you’ve said, that’s a decision s/he is responsible for not you. (An exception is “tagging” a comment in Facebook, which does cause the comment to appear in the tagged person’s Timeline. There’s a case of a New York woman’s being held in contempt of court for tagging her ex-boyfriend, who had a restraining order against her. She called him “sad” and “stupid,” so the guy tearfully ran to the courthouse and cried foul. Even such a case as this has been excepted. See, for example, David v. Textor, in which the Florida District Court of Appeals ruled that “where comments are made on an electronic medium to be read by others, they cannot be said to be directed to a particular person.” )

It’s the rare state trial judge who’s as enlightened as Judge Titus, though, and who knows to consider one-to-many speech on a website differently from one-to-one, interpersonal “contact.”

In my most recent superior court trial, for instance, it was alleged that I had “indirectly contacted” the plaintiffs by Google Alerts and by my use of keyword meta tags on this site. One of the plaintiffs requested that Google inform him of my posts. Google’s emails to him were represented as “contacts” from me. The claim is absurd, but there you go. Similarly, the keywords beneath posts here that catalog their topics were said to “contact” anyone whose name appeared among them. I wish I could say such arguments are met with derisive scoffs, but the judge in the case took notes. “Meta tags” were new to him—and sounded sinister enough.

This nonsense works. (A police detective told me in January that he believed I had “caused a contact” with one of the plaintiffs merely by using her name online or inspiring someone else to comment on her conduct.)

Probably a judge would not consider writing someone’s name on a bathroom stall a “contact,” but because the Internet is a public medium that anyone can access with a computer and a few key strokes, the distinction between speech and contact becomes muddled.

It’s further obscured by snivels and protestations of grievous violation by vindictive and attention-seeking plaintiffs, which trigger preconditioned judicial impulses.

Unless a defendant “gets in touch” with the plaintiff, it is NOT “contact.”

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*See also the dictionary.