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

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“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. 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 RestrainingOrderAbuse.com

22 thoughts on “Talking Back to Restraining Orders Online: What the First Amendment Says Is Okay”

  2. you-are-also-ordered

    By UCLA Law Prof. Eugene Volokh August 24, 2015:

    As many readers of this blog know, I’ve long been interested in how criminal harassment laws and restraining order laws have been morphing from restricting unwanted speech to people into restricting speech about people.

    Such laws have traditionally covered unwanted phone calls, unwanted letters, unwanted attempts at face-to-face conversation and the like: again, speech to a particular person. Courts have generally upheld such restrictions on speech, and in many instances, plausibly so. […]

    But in recent years, courts and prosecutors have increasingly used these laws to cover statements said to the public at large about particular people. Speakers have been prosecuted for posting repeated offensive messages or distributing offensive flyers about people (including about political and religious figures). Courts have issued orders barring speakers from saying anything about a person and ordering speakers to take down existing posts about that person. […]

    A court can’t order someone to just stop saying anything about a person.

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  3. The problem is and is never addressed is that when somebody falsely accuses you of something you didn’t do, you need to sue them for defamation/slander/libel. You are not permitted to use any statements made to Court but that can be valuable information outside of court. OK… Get the protective order on me. If I win the defamation suit then I end up with your house, your car and everything else you own. I wish I would have known that when my ex-wife lied to get a protective order on me.

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    3. Actually, it isn’t quite so easy or inexpensive to file a defamation lawsuit. As with most lawsuits, it is a fight and there are no guarantees of a win. You might be telling the truth to aggravate and inconvenience your accuser with a defamation lawsuit but it doesn’t mean it is so easily won. Or if you win, it could end up being pyrrhic victory.

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    4. This doesn’t make any sense. With few exceptions, words in a lawsuit cannot be the subject of an action for defamation or libel. Neither can testimony in court. It has immunity.

      And as Matt Chan says defamation lawsuits are not big producers of money. Not here in the USA anyway.

      On the other hand, if someone has lied about you in court, you should definitely take your case to the court of public opinion and write about it on the internet.

      Record every lie and bring it in.

      I have a libel lawsuit pending against the plaintiff and her attorney who sued me for a bogus restraining order. But what they did and said was too deceitful and too malicious to overlook. I filed the complaint for libel on my own. I doubt I could find a lawyer willing to represent me. You can read the lawsuit here
      https://groups.google.com/forum/#!topic/alt.appalachian/Z05-jfY8gHg

      and at my blog, buncyblawg.com. The two libelists have both filed responses, and so I will be scanning their garbage in soon.

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  4. Still think talking to someone is ok, especially on subjects they aren’t happy to discuss. Otherwise there is no way to call someone on bad behavior, whether they are a public figure, without being called a stalker. I’ve said it earlier but limiting someone who is not threatening another from talking to them is a gold mine for people acting badly to shut others up and humiliate them.

    http://www.breitbart.com/big-journalism/2015/03/05/politico-circles-wagons-accuses-tmz-of-stalking-hillary/

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    1. Anyone can do what they want to do. There are many ways of achieving your goals without actually directly communicating TO anyone. I’ve not had any desire whatsoever to communicate to my accuser or anyone I am unhappy with. It is almost always more effective to complain ABOUT a person than to them. This advice goes beyond restraining order issues. It is one of my life axioms to deal with people who are uncooperative, unreasonable, and just being turds in customer service. The ability to write and complaint ABOUT someone is a very powerful tool to influencing others.

      Most knuckleheads don’t care what YOU have to say to them because they are predisposed to ignoring and disliking anyone that complains directly to them. But it is amazing the results you can get by writing ABOUT them.

      The people who piss me off, I could give two shits whether they care about what I think. However, what I do care is getting the OUTCOME I want. Getting the outcome I want is best gotten from someone predisposed to caring about ME, not the person being inconvenienced.

      The whole point of a restraining order is to stop unwanted communications. Public figures vs. private figures have different standards. Also, when we are discussing paparazzi, headlines, press coverage, the term “stalking” takes on a much broader meaning that goes beyond the context of discussions on the ROA website.

      In the age of the Internet, there is plenty of power in having the ability to talking and complain ABOUT someone. That is why so many try to abuse the legal process to prevent others from publicly talking ABOUT them.

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    2. Totally. It’s not that talking to people is wrong; it’s just that claims of harassment in that case can’t be negated by invoking the First Amendment. Anybody can claim speech to him or her is harassing, the state is glad to agree—all they have to do is flash some texts or emails—and freedom of speech can’t be used as a defense.

      Restraining orders are wrong. Restraining orders are abused. The law, though, doesn’t do subtle. If you can’t rebuke a claim with a citation that invalidates it, the law says suck it.

      Sorry, Grant, I’ve been away from email, but I wanted to wish you good fortune with your literary endeavors. I saw your note before about self-publishing. I’ve heard some people are wildly successful at this. Perseverance is the essential. I’ll try to catch up with emails this weekend in case I’ve missed anything new you’ve reported. Look into Kickstarter and consider launching your own website and starting a Facebook page, etc., to motivate interest (and maybe some financial support).

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  5. Todd has written a nice overview in his own inimitable style. What I would like to add here is that CONTEXT matters. You are allowed to share your opinions by using qualifiers such as “IN my OPINION….” “It is my BELIEF that….” “I cannot PROVE it but my thought is…” Putting smiley faces and emoticons helping establish that you are not being literal or fully serious. Or I say I am a “cult leader” (notice the quotations that indicate it is a figure of speech.)

    Some common sense has to prevail here. You shouldn’t be afraid to call someone a “TURD”, “BUTTWIPE”, or any other similar language. Name-calling is allowed.

    There comes a point everyone needs to decide for themselves what they are willing to put with. Restraining orders start off as a civil matter. To reach the level where a prosecutor is willing to waste the government’s already shortage of resources to criminally go after an alleged perpetrator is generally pretty high.

    If you live in some backwoods town of 400 people, I suppose there is a possibility something “bad” could happen. But this is why we have the Internet, a brain, and have some level of understanding that a line has to be drawn somewhere.

    The concept of “personal empowerment” and “personal power” is not something that can easily be taught. It comes from life experiences and a particular mindset. To a large degree, it is also a state of mind. There is a reason why the saying “you can only help those people who are wiling to help themselves.”

    In the world of restraining orders where injustices are born from low-level courts, only YOU can decide how much you are willing to take and what rules you are going to follow. The speed limit is posted on roads and highways throughout the U.S. It is allegedly the governing instrument to control driving speeds. However, because we are not in North Korea *wink* cars made and sold in the U.S. give us the choice to EXCEED the speed limit. It can be a minor infraction to exceed the speed limit. Or you can be a CRIMINAL by taking that same car and you become reckless and kill or maim someone with that car.

    We are given these choices. The restraining order is a “warning” to you. It is not an ABSOLUTE instrument in most cases. There is latitude and wiggle room in most restraining orders.

    At the end of the day, I have chosen my path and response as does everyone else who faces a restraining order. Todd is on his own path and I have been watching him slowly blossom and regain his personal power. By my recent observations, Todd understands that working alone is not the way to go. He appears to be expanding his presence, his message, his identity, his knowledge, his expertise, his mindset, his resource network, etc.

    Everyone has to figure out how much a restraining order is going to define them. I believe the empowered way is for YOU to define the restraining order and restrict its “power” as much as possible. I could go on and on about the empowered mindset as that is what I believe and conduct my life. I also believe it is what attracts others to come into my sphere of influence. Something I’ve been wanting to write about is how to develop your own personal “gravitas”. Gravitas is gained and earned by developing and strengthening your sense of personal empowerment and inner confidence.

    Get educated and get empowered is my mantra in fighting restraining orders.

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    1. Sorry, Matthew, if you’ve emailed. I’ll catch up this weekend if I can. I was sick for a while (that flu lingered for a month or more) so I’ve been backlogged. I did put up a fundraiser, though, for what it may be worth.

      Those practical pointers (on framing and presenting statements) are awesome.

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      1. Possibly more motivating than anything else for pursuing a new trial is the thought that a lawyer might find cause to have this guy subpoenaed to testify again. I wanted to hear more from him, but the judge cut me off when I raised the question of honesty.

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        1. In your case, the best you can hope for is being eligible for an appeal. There is no “retrial”. An appeal is determining whether the underlying court erred in their findings, rulings, or legal procedure. In my view, the order is flagrantly overbroad and asking to be overturned.

          People need to understand that the more draconian and broader the order limiting speech, the more likely it will be overturned.

          That is one unintended consequence when an overzealous attorney thinks he can get away with writing an obnoxious, speech-crushing speech order. The other unintended consequence is it gets a lot of other 1st Amendment folks riled up (like me) especially when it comes to a website owner or blogger. Remember, “bloggers rights” are a big deal because you have the same privileges as traditional news media. Go check out the EFF on that.

          I directly benefited by the outrage of my supporters and friends who practically cyber-bullied me into filing a notice of appeal. They were so pissed that not only was I shut down, so was everyone else that participated on the Dash Poem Forum.

          You seriously need to consider posting the overbroad orders for everyone to see. I have posted a copy of the court orders you were subject to on Scribd.

          Anyone that has any background on 1st Amendment and online speech can plainly see that Judge Cornelio went way too fucking far in trying to appease “Tiffy” in his court orders.

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          1. The “Order to Show Cause” session was the most egregious order with its collective 13 bullet points. Each of the 13 bullet points need to be read to be fully appreciated.

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  6. You would be culpable in a sense if you did NOT denounce a bum restraining order, or a bum cyberstalking case. And online too, just as Prof. Eugene Volokh has said you have the right to do. Such as this man in Rhode Island who fought it out and finally won:

    http://www.firstamendmentcenter.org/r-i-teachers-union-official-guilty-of-cyberstalking-ex-lawmaker

    Google Leidecker and Gablinske. Leidecker kept fighting until he won.

    I dee double dare any of the crooked officials in my vicinity to try and silence me.

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    1. “Judge Susan E. McGuirl ruled that the emails sent by John A. Leidecker, an assistant executive director with the National Education Association of Rhode Island, mocking then-state Rep. Douglas W. Gablinske for his positions on bridge tolls, the school funding formula and contract issues were protected political speech under the First Amendment….”

      http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/10/21/court-reverses-union-official-john-leideckers-conviction-for-cyberstalking-r-i-state-representative-douglas-gablinske-via-absurd-e-mails/

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      1. The link you shared here by Eugene Volokh is a particularly good one (albeit very long). I will need to read it more carefully again. However, I saw many important points the Court correctly pointed out.

        On a different note, in my informal conversation with Oscar Michelen, he felt supporters were interested in my case not just because of the 1st Amendment issue by itself. It was the fact that the speech I made along with others on my website was in the context of discussing “copyright trolling”, a growing topic of interest. It wasn’t simply to single out the Dash Poet and slam on her for “no legitimate purpose”.

        Likewise, Todd’s angry and pointed remarks against “Tiffy” from 2011-2013 wasn’t for the sole purpose of “harassing” her. It was to tell everyone WHO was engaging, the type of person that engaged in such actions, their motivations,etc. to engage in restraining order abuse. Todd was also sharing his personal story and views of the impact of said abuse against himself and his career path. The point is, his comments regarding “Tiffy” were part of a much LARGER discussion and ugly/unfair legal phenomena.

        For better or for worse, Todd has now been subjected to TWO successful abuses from the same accuser. Todd has a right to be angry at the legal system, “Tiffy”, and her little cohorts. Todd has a right to identify them and speak his OPINIONS about them. If Todd feels the need use the word VAGINA (a perfectly legitimate word) in conjunction with her name, he has a right to do this. Tabloids do it all day creating long sensationalistic headlines. Todd did nothing differently when he referred to “Tiffy’s vagina”. I can see where she might not approve. Because I can have a twisted sense of humor, I actually found what Todd wrote quite amusing. (Court Exhibit #2)

        https://www.scribd.com/doc/254664637/Tiffany-Bredfeldt-v-Greene-2013-03-07-Plaintiff-Exhibit-2

        Likewise, Todd had the right to openly share his complaint letter that he sent to the DHHS Inspector General. (Court Exhibit #1)

        https://www.scribd.com/doc/254664077/Tiffany-Bredfeldt-v-Greene-2013-03-07-Plaintiff-Exhibit-1

        I would like to remind everyone that Section 230 of the CDA is in effect here. Todd has not instructed me to share the posts he was forceably removed in 2013. He cannot be held responsible for posts I personally make. These posts are part of the Pima County Superior Court case record and were submitted as “evidence” of Todd’s supposed “wrong-doing”.

        I have freely chosen to illuminate most of the legitimate content that Todd was “ordered” to remove. In fact, I will be post more documents to Scribd as time permits. Anyone can find additional court documents of Todd’s case here: https://www.scribd.com/defiantly.net.

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    1. I don’t have convenient Internet access at home, so I only had a chance to take in what first meets the eye on a visit to the blog. Being neither an attorney nor a First Amendment expert, all I can offer are impressions. The blog makes some allegations of fact. Provided the facts are either true or simply the author’s opinion (which is protected), they would seem to be lawful. Clinical conclusions by a non-clinician could fall into a gray space, I suppose, but the blog seems to offer facts and allow the reader to draw (guided) conclusions for him- or herself. I didn’t notice any explicit clinical conclusions. Any facts represented as facts would have to be true and not falsified for them to escape characterization as “defamatory.” For example, to say someone has been convicted of driving under the influence would be defamatory if that person had never gotten any DUIs. Otherwise, provided the author is only expressing him- or herself in a non-confrontational way, there seems to be nothing legally objectionable about the blog. It’s essentially an online-diary-slash-commonplace-book that people can choose to visit or not.

      Am I addressing Mr., um, Balsack or Mr. Balser? My guess, based on the number of question marks, is the latter. If I’ve guessed rightly, I can’t divine the truth; I can, though, tell you that accusations to authorities and the courts are ruinous to the psyche; they’re paralytic. Whatever the truth of the matter, consider ironing all of this out rather than escalating the conflict. With mutual cooperation of the disputants, most legal strife can be effectively erased.

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  8. Speaking of judges, look at what this rampaging Ohio judge did. The USA is suffering a plague of marauding judges, police brutality, public officials who believe they have the divine right and power and duty to micro-manage your life, and rioting radfems and other special interests trying to quarantine the Bill of Rights so they can engage in tyranny and do as they please.

    http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/02/27/the-censorious-thuggery-of-ohio-judge-tim-grendell/

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    1. It gladdens my heart to see people begin finding good sources of information and opinion. Eugene Volokh’s Volokh Conspiracy is a good read especially when Eugene writes them himself.

      Ken White of Popehat.com (as referred within the blog post of Joel’s link) has a good grip on 1st Amendment and Free Speech.

      Another lawyer and legal blogger to follow is Marc Randazza based out of Nevada. I love Marc’s style. He is blunt, direct, and suffers no fools when it comes to matters of 1st Amendment and Section 230 CDA. The EFF.org is a big one for anyone who cares about digital/online/Internet liberties and freedom.

      Todd might want to consider putting a single page of “people/blogs to read” for people who are dealing with 1st Amendment / free speech issues such as he and I are. For that matter, I should do it for myself as well!

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