indirect contact | TALKING BACK to restraining orders

It’s surreal to sit in a courtroom knowing you’re the only one aside from the plaintiffs who knows the truth of the matter and that almost everyone else’s impressions are completely wrong. I had this experience (not for the first time) in July. The court staff, for example, thought it remarkable that the plaintiffs in a tort case (a civil trial) were represented by a criminal attorney. Did this mean, they wondered aloud, that the attorney was changing what kind of law he practiced?

I knew the answer: No. There was nothing remarkable about the plaintiffs’ choice to me. The job of a criminal attorney is to pelt judges and jurors with alternative (including screwball) theories to make those judges and jurors scratch their chins and think hmmm. His or her job is to divert scrutiny and blame from his or her client(s).

In the case in which I was recently the defendant, the plaintiffs’ criminal attorney was there to obfuscate, distract, and confuse. The primary question addressed during what was a several-hour procedure was whether I had “contacted” (and thus “harassed”) the plaintiffs by writing ABOUT them.

The plaintiffs’ attorney said I had contacted third parties about the plaintiffs (“literally hundreds”!), that Google Alerts (created by one of the plaintiffs) had emailed them with notices about my online speech, and that I had used the plaintiffs’ names in HTML meta tags (keywords associated with the content of my online speech—see, for instance, the bottom of this post). All of these were alleged to constitute “contact” with the plaintiffs.

(HTML lexical tags were especially emphasized, and the plaintiffs’ criminal attorney called an expert witness, also a criminal attorney, to talk about them. They were alleged to have some kind of spooky—and very sinister—potency: WooOooo-ooo-ooo-ooo-ooo. In fact, Google doesn’t pay any attention to them at all, and they’re completely passive: They just catalog topics that particular posts are about and interconnect those topics within a site.)

For the first time in over 10 years of being prosecuted by the same monsters, I had an attorney, so I didn’t say a word.

If I had addressed the court, however, this is what I would have told the judge: “Your Honor, you can clear up this question of ‘contact’ in 10 seconds by asking the plaintiffs how they learned about anything I’ve ever written. If their answer is not one of the following, there has been no ‘contact’:

‘The defendant confronted us.’
‘The defendant emailed us.’
‘The defendant called us.’
‘The defendant texted us.’
‘The defendant Skyped us.’
‘The defendant sent us a letter.’
‘The defendant asked an intermediary to convey a message to us for him.’”

The plaintiffs didn’t even allege that I had contacted them directly, so only option 7 was available. Did I ask a third party to contact the plaintiffs (e.g., “Kindly tell them they’re going to burn in hell and that they should lay in a store of asbestos diapers now”)? No, nor was it alleged I did. Did I ask Google Alerts to email the plaintiffs? No, nor was it alleged I did. Do HTML tags send emails, make phone calls, or write letters? No, nor was it alleged they do.

That simple.

*Speech ABOUT people, for instance, or legislation or products or institutions (including critical speech)—whether posted on the Internet (“The guy’s a soulless pig!”), megaphoned in the town square (“Obamacare stinks!”), or tacked to a bulletin board (“Monsanto is destroying the planet!”)—is speech protected by the First Amendment, and it does not “contact” its targets. Speech can’t contact; it can only be listened to or ignored. “Google indexed his blog post, and I clicked on the link and read it”: NOT contact. “A friend saw what she wrote and told me about it”: NOT contact. “He used my name”: NOT contact. “She published what I said in court”: NOT contact. “He told my boss I’m a liar”: NOT contact. “She said my [product or service] was unreliable”: NOT contact. Knowledge that criticized parties might read what a person writes in a blog or on Twitter, for example (or on a review site), doesn’t mean the author “intended” for the criticized parties to read it…even if s/he knows they monitor his or her every action.

“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.”

*See also the dictionary.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag indirect contact

How to Determine if a Defendant Has “Contacted” a Plaintiff in Violation of an Injunction: A Tutorial for Trial Judges (Whose Knowledge of Constitutional Law May Be Sketchy)

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