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Restraining Orders as Strategic Lawsuits Against Public Participation (SLAPPs)

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Not a day goes by when a search engine query doesn’t lead someone to this blog because s/he wants to know whether speech on Facebook can be prohibited by the court.

Lawfully…maybe. If someone sends communications TO someone else after the someone else has repeatedly requested that s/he be left alone, this can be labeled “harassment,” and a judge can “properly” issue an injunction forbidding further contact.

If, however, a person merely makes remarks ABOUT another person (even a so-called “private figure”) or otherwise expresses his or her view on something, that’s his or her constitutional right (see the First Amendment). Americans are guaranteed the freedom to criticize one another, as well as their government, and judges have no business poking their noses in…which doesn’t mean they won’t if invited. A person merely making remarks ABOUT someone can still be sued. Anyone can be, whether on meritorious grounds or frivolous or vexatious ones.

Enter the “SLAPP,” or, Strategic Lawsuit Against Public Participation.

Lawsuits whose motive is to silence critical speech by intimidation are SLAPPs. They typically allege that an opinion is “defamatory.” There can be no defamation in opinion, but that doesn’t matter.

SLAPPs work because being sued is stressful and expensive. Only about half of states have anti-SLAPP laws on their books and their content varies significantly, as well as do targets’ means to hire attorneys and prosecute a defense. (For just this reason, a federal “Speak Free Act” has been proposed.)

Making matters worse, how SLAPPs are used, particularly when they take the form of restraining order petitions, is by alleging a constellation of offenses that may be utterly false but can nevertheless be very persuasive.

The writer of this post is the defendant in three such litigations right now. The complainants don’t like what I’ve reported or opined about them. They haven’t, though, alleged that I’ve been unkind in my characterizations; they’ve claimed they’re afraid for their lives, that they’ve been harassed, that they’ve been defamed, that they’ve been stalked, that they’ve been sexually aggressed against…that kind of thing. The more frenzied of the two women who are prosecuting me—a woman who emailed me four years ago calling herself an “avid reader” of the blog and calling the other woman who’s prosecuting me a “sociopath”—today says she’s packing a gun. (I’ve seen this person once in 10 years: I consented to join her for coffee, and afterwards she hugged me.)

You see how it works: You make your allegations lurid to distract from your real motive, which is to shut somebody up who’s making you look bad (because you are bad).

Commenters on this blog have reported having restraining orders petitioned against them because the plaintiff owed them money or because they had knowledge of the plaintiff’s commission of a criminal act, like drug abuse, tax evasion, or violence, including rape.

In instances like this, restraining orders are SLAPPs. They’re meant to make sure the defendant is gagged and subdued.

As SLAPPs is just another way restraining orders are abused.

Copyright © 2016 RestrainingOrderAbuse.com

First Amendment Rights from Beyond the Grave: Defense of a Suicide’s Publication of His Final Words by the Randazza Legal Group

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“I couldn’t flee and I could not fight. I was never going to be allowed to heal or recover. I wish I were better at articulating the psychological and emotional trauma I experienced. I could fill a book with all the lies and mysterious rulings of the Court. Never have I experienced this kind of pain. I asked for help, but good men did nothing and evil prevailed.”

—Chris Mackney (1968–2013)

An emailed riposte from Las Vegas attorney Marc Randazza was introduced to my attention this week. It was an answer to a move by the “estranged wife” of a man who committed suicide in 2013 to have the man’s suicide note removed from the blog A Voice for Men.

The genesis of this dispute appears to be that Mr. Christopher Hines Machnij a/k/a Christopher Hines Mackney and his estranged wife were in an acrimonious relationship. Due to the strains of that relationship, Mr. Mackney started a blog in order to express his thoughts about his treatment in the family law system. This culminated in a suicide note, which he published to his blog from Washington, D.C., on December 29, 2013, and then he committed suicide on December 29, 2013. His writing and his suicide note were admittedly unflattering to your client. Your client then petitioned a Virginia state court to grant her some ambiguous (and questionable) intellectual property rights to the blog’s contents, which she is using to attempt to purge Mr. Mackney’s expression from every corner possible. One of those corners is my client’s blog.

[…]

It is our position that A Voice for Men’s republication of the suicide note is not copyright infringement, pursuant to 17 U.S.C. § 107. Accordingly, even if Mr. Mackney were to rise from the dead and insist upon the depublication of the suicide note, it is my client’s position that it has a right to continue publication of the letter.

Perusal of Mr. Randazza’s email, which is masterfully composed, is recommended to anyone invested in the right to redress perceived injustices by the public exercise of his or her voice.

Christopher Mackney

I’ve read Mr. Mackney’s “suicide note,” which is neither a manifesto of hate nor a farewell-cruel-world. It’s a supremely calm and sincere apology that’s all the more haunting for its quiet lucidity and resignation.

What Mr. Mackney describes in his final statement (dated four days after Christmas) will be familiar to anyone who’s endured something similar: the isolation, alienation, and paralysis; the mute indifference from anyone who could have intervened; the loss of identity, emotional decay, and financial ruin; and the hopelessness that comes from repeated confirmations that resistance is futile.

The consequences of the court’s intrusion into family and interpersonal matters—and the imposition of its judgment—are seldom viewed with the gravity they deserve.

Much of the debate of issues orbital to the events that prompted Mr. Mackney’s suicide occurs in the abstract. Commentators’ opinions (and they are legion) can rarely be seen to acknowledge the real-life strains and torments that real, live accused people suffer.

What is animating fodder for conversation to some, however, leads others to kill themselves.

Copyright © 2015 RestrainingOrderAbuse.com

*Among Mr. Mackney’s final words are an adjuration to stand up and speak out in defense of the abused (his blog resided at GoodMenDidNothing.com).

Restraining Orders and the First Amendment: A Female Blogger’s Successful Appeal of a Restraining Order That Labeled Her a “Cyber-Stalker”

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“The First Amendment is FIRST for a reason.”

—Larry Smith, former attorney and indomitable muckraker

A recent post on this blog revisited the case of Matthew Chan, author of ExtortionLetterInfo.com (ELI), whose appeal of a lifetime restraining order is presently under consideration by the Georgia Supreme Court. A verdict is anticipated within the coming month or months.

Criticisms are handily represented as acts of terrorism to the courts, whose officers have been conditioned to pander to accusers. Anyone is a potential target of facile accusations, which are made in mere moments. Retirees and vegetarian soccer moms, for whom the cost of attorney representation is often prohibitive, report being implicated as violent menaces and tyrants.

This post reports a successful appeal waged by North Carolinian Cindie Harman, who was issued a no-contact order for allegedly “cyber-stalking” a mother and her minor daughter by publicly criticizing them in a blog. Mrs. Harman named the adult plaintiff’s daughter a “bully” of other children and opined that her behavior was influenced by her mother’s conduct.

According to the Associated Press, the mother, who owns or owned an Asheville-area water services company, was “sentenced to nearly three years in prison for faking thousands of tests designed to ensure that drinking water is safe” in 2012 (and also faced “conspiracy charges”), had “plead guilty in 2010 to mail fraud,” and “paid a fine and did community service after pleading guilty to misconduct by a public official after she was charged with embezzling more than $10,000 from Marshal when she served as town clerk there.” Mrs. Harman’s accuser, whose husband is a former magistrate, controverts the popular notion that restraining order applicants are innocent lambs seeking protection from marauding predators.

Mrs. Harman prevailed in her restraining order appeal, but the vindication of her character and her judgment of her accuser’s character didn’t come without a steep price—and that’s excluding attorney fees.

According to the blogger quoted in the epigraph, Larry Smith, a friend of Mrs. Harman’s and fellow comrade-in-arms:

During the long time this case was pending, I had been talking to Cindie on the telephone, trying to reassure her that she would win her case in the NC Court of Appeals. She was very nervous, inconsolable, dyspeptic, upset about it.

Being accused of stalking, let alone being accused of stalking a child, isn’t funny. It’s the kind of thing that breaks a person.

To be charged with stalking in North Carolina signifies you’ve caused someone “to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.” (Note that the latter element of the statutory definition of stalking, “continued harassment,” is glaringly incongruous to the elements that precede it. The contrast between fear of “death [or] bodily injury” and fear of “continued harassment” underscores the slapdash, catch-all nature of stalking and related statutes that makes them not only objectionable but outrageous, and urges their legislative revision or repeal.)

The trial court that heard the restraining order case against Mrs. Harman, and whose backroom judgment was overturned by the North Carolina Court of Appeals, had ruled, “Defendant [Harman] has harassed plaintiffs within the meaning of [N.C. Gen. Stat. §] 50C-1(6) and (7) by knowingly publishing electronic or computerized transmissions directed at plaintiffs that torments, terrorizes, or terrifies plaintiffs and serves no legitimate purpose” (italics added).

Observe that even the court’s grammar was bad. The ruling should have read “transmissions…that torment, terrorize, or terrify.” Gaffes like this are hardly surprising considering how hastily and carelessly restraining order judgments are formed.

Mrs. Harman was said to have tormented, terrorized, or terrified the child plaintiff by referring to her as a “bully” (a “reason kids hate to go to school”) and tormented, terrorized, or terrified her mother by calling her a “crow,” an “idiot,” and a “wack” on a blog.

Terrifying indeed.

At the beginning of this year, Law Professor Jonathan Turley eagerly reported that the U.S. Court of Appeals for the Ninth Circuit ruled “Bloggers Have Same First Amendment Rights As Journalists” (cf. Robinson Meyer’s “U.S. Court: Bloggers Are Journalists,” published in The Atlantic, and “Reporters’ Privilege,” prepared by the Electronic Frontier Foundation). Judges in North Carolina seem not to have heard the news.

The decision came in a defamation lawsuit where the panel ordered a new trial in the case of Crystal L. Cox, a blogger from Eureka, Montana. Cox was sued for defamation by attorney Kevin Padrick and his company, Obsidian Finance Group LLC, after she wrote about what she viewed as fraud, corruption, money-laundering and other illegal activities.

The details may sound familiar.

In legal commentary presented in Chan v. Ellis, the appeal mentioned in the introduction to this post, Law Profs. Eugene Volokh and Aaron Caplan asserted to the Georgia Supreme Court:

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.

Restraining orders and criminal stalking law may properly restrict unwanted speech to a person. But they may not restrict unwanted speech about a person, again unless the speech falls within a First Amendment exception. The trial court’s order thus violates the First Amendment.

This may also sound familiar.

Cindie Harman ultimately won the case against her, a case that should never have been entertained by the court in the first place, but a victory that should have reassured her that freedom of speech in our country is a revered and inviolate privilege has had the opposite effect.

Reportedly consequent to receiving threats against her person and having several of her pets poisoned, Mrs. Harman has removed her blogs. Even her Twitter feed is now “protected” and no longer accessible to a general audience. Mrs. Harman lives in the sticks and says if she weren’t armed, she’d be afraid to be alone.

She has been terrorized into silence.

Copyright © 2014 RestrainingOrderAbuse.com

*The author of this blog, too, has had a lifetime injunction imposed upon him by the court for communication “about a person” (communication that alleged misconduct, including criminal, by a public official). His 2013 trial, which was conducted in the Superior Court of Arizona and in which he represented himself, concluded less than four months before the Ninth Circuit Court of Appeals’ ruling in Cox v. Obsidian Finance Group. He hasn’t subsequently received any threats but has been monitored. His accuser, a married woman he encountered standing outside of his house one day in 2005 (and many nights thereafter), is believed to be among the first to read anything posted here.

What’s Legal, What’s Iffy, and What’s Not: How to Talk about a “Restraining Ordeal” without Risking More of the Same Mistreatment

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Technically, freedom of speech is your Constitutional right. Technically, you can say anything, and if it’s true (and not a state secret), it’s not actionable. “Not actionable” means you can’t be sued for saying it (or shot). Technically, you can even say blatantly defamatory things if you’re defaming someone back to protect your own interests.

That’s technically.

Practically, however, is a different story. In lawsuits alleging libel (written defamation), the law presumes that the plaintiff has been defamed. The burden falls on the defendant to prove that his or her “libelous” statements are true and thus privileged or protected speech.

Click here to learn “How a Blogger Can Get Legal Protection from Libel and Slander.”

Practically, also, if a defendant has been talking about a false restraining order that s/he was issued, the court may not even look at the defendant’s evidence but take it for granted that s/he’s just engaging in “further” harassment, which is certainly how the false accuser will represent his or her actions. That the defendant was in fact the victim of harassment and fraudulent allegations by the plaintiff won’t be perceived. This is particularly likely to be the case if the plaintiff is represented by an attorney, and the defendant isn’t.

What this means practically is that if you intend to talk about a restraining order you were falsely issued, you’ll want to do it with care.

I know of a woman who was very candid in a blog—even posting (she said) graphic genital photographs of her false accuser (sext messages, presumably)—and she successfully defended herself in court. Neither she nor her accuser was represented by an attorney. The judge ruled that the blog was her private space (the equivalent of an online diary). A different judge might have ruled otherwise, however, and the same judge might have ruled differently had an attorney argued for the plaintiff.

Since your name was dragged through the mud, and the stains are ones that can’t be washed off, both fairness and impulse will dictate that you not pull your punches (especially if you had everything you valued most stripped from you arbitrarily). To protect yourself from being subjected to another miscarriage of justice, though, it’s advisable that you refer to your false accuser in the third person (“he” or “she”) and identify him or her only generally. If you don’t out your accuser explicitly, the grounds for a libel suit are going to be pretty thin. It’s furthermore likely that a judge would actually review the substance of what you had to say rather than just ruling by reflex, and if your accuser demonstrably engaged in fraud, there’s a good probability s/he won’t want to invite further judicial attention to the matter.

Everything in law is a toss of the dice. If your accuser is batshit crazy, for example, there’s absolutely no reliably predicting what s/he may do. If that accuser is moreover well-heeled, s/he may be able to hire a team of heavy-hitting attorneys. And the fear inspired by uncertain consequences assuredly explains why so few complaints of restraining order abuse are publicized. The restraining order apparatus is finely tuned to intimidate its victims into silence, which is why it’s able to victimize citizens en masse and yet never excite mass protest.

The practical question becomes, if you don’t name your false accuser, what’s the point of telling your story? The question is a good one. Neutered of detail, it’s likely to accomplish little to assuage your sense of injustice or urge your false accuser to make amends. This is another reason why so little attention to restraining order injustices is successfully aroused.

An answer might be to tell your side or ventilate frustration. Catharsis, while hardly as valuable as justice, may restore to you a sense of equilibrium.

If this dubious prospect hardly seems worth the effort, there are other courses. Your story can be told (in synoptic form) on public petitions aimed at reforming the laws that enabled the abuses to which you were subjected. You could even tell your story on a petition of your own that you started, and you could do it anonymously if you wished.

Alternatively, particularly if the details of your ordeal were compelling, you could seek to tell your story in an online periodical, like the Huffington Post. Others have shared their courtroom sagas this way. Venue can give a story chops that in another medium might seem suspect (venue may also come with heavy-hitting attorneys of its own). Alternative to this alternative would be attracting the interest of a writer who works for such a venue. If your professional or collegiate credentials were such that they would elevate you from seeming like a crank and you had an interesting story, doing so might very well be in the realm of possibility.

If you choose to tell your story yourself, you should avoid ranting and name-calling, irrespective of the medium. Since you’ve already been labeled a crank by the system, anything you do that could cement that label probably will. I won’t tell you that I haven’t heard of someone being sued for criminal stalking based on such behavior, because I have. To be clear, though, this case involved the complainant’s naming his accuser in a wide variety of media and making an equally wide variety of allegations that were uncorroborated. I corresponded with this complainant’s accuser and was given the unmistakable impression that her allegations weren’t without merit and that her lawsuit was filed reluctantly. In other words, she was a good person. Unheard of in cases of actual restraining order abuse, this woman had tried to work things out privately with a man who was in the grip of alcoholism. Actual restraining order abusers have no such scruples and often have no scruples at all.

Since you’re reading this, chances are high that you are sane and sober, in spite of everything. And congratulations, because that may be saying a lot about your fortitude and resilience. Just take care in anything you say about your trials and tribulations not to sound otherwise.

Copyright © 2014 RestrainingOrderAbuse.com

*See also: “Talking Back to Restraining Orders Online: What the First Amendment Says Is Okay” (2015).