Tag prior restraint

Another Way False Testimony Is Concealed: The Unconstitutional “Prior Restraint”

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Courts are properly authorized to sanction acts of defamation—publicly lying about someone—but they’re not authorized to prohibit truthful speech or opinion (even if it’s negative), and they’re not authorized to prohibit speech acts before they’ve even been committed. An order of the court that prohibits future speech is called a prior restraint, and it’s unconstitutional (see the First Amendment).

With civil harassment orders, things get knotty. A prior restraint may not be expressed; it may be implicit.

Cornell, prior restraintWhen a “protective order” is in effect, it prohibits speech to someone but not speech about that person, per se, as law professors Aaron Caplan and Eugene Volokh have emphasized. A court, however, may conclude that speech about someone (any speech about that person) is “harassment,” and it may label that speech a violation of the “protective order,” and rule that a defendant be remanded to jail.

Several people have reported on this site that they were jailed or had orders of the court extended because of publications online or, in one case, for posting flyers about an accuser’s conduct. Many have reported, too, that the basis of the “protective order” against them was speech about a person (in one recently shared account, a woman complained on a county bulletin board about her neighbors’ shabby treatment of their dog).

So you have instances where people are issued restraining orders for lawfully exercising their First Amendment privilege to free speech, and you have instances where people who’ve been issued restraining orders are sanctioned for lawfully exercising their First Amendment privilege to free speech.

Trial judges aren’t First Amendment authorities and may not have graduated from college, let alone have law degrees. Furthermore, protecting the free speech of people they’ve labeled abusers is hardly an urgent concern of theirs.

Here’s what a prior restraint looks like:

Arizona prior restraint order, First Amendment law

Orders like this don’t expressly forbid criticism of the government. They forbid criticism of people who exploited a process of government. This, by extension, forbids criticism of the government.

This order was issued against me in 2013 when I was sued for libel and harassment in the Superior Court of Arizona by a married woman who had falsely accused me to the police and several judges years prior. She was someone I scarcely knew who had hung around outside of my house at night (what that might suggest to you is what it should suggest to you). Her original claims to the court (2006) were to obtain an injunction to prohibit me from communicating her conduct to anyone, and her claims to the court in 2013 were to obtain an injunction to prohibit me from communicating her conduct to anyone.

The motive for both prosecutions was the same: cover-up. (Try to imagine what it is to fight false accusations for seven years, daily, while everything around you erodes, and then have some trial judge offhandedly tell you you’re lying and should be gagged. The judge had plainly made up his mind how he would rule before ever setting foot in court. The trial nevertheless dragged out from March to October. Today I avoid using the road where I rented the private mailbox to which the judge’s arbitrary conclusions and fiats were mailed, so nauseous is the association.)

Some of my accuser’s testimony is here, and the contradictoriness of her claims, as well as the motive for them, will be evident from no words other than her own. Does it matter that her misrepresentations are self-evident? No. Does it matter that they ridicule process of law and mock the court? No.

All that matters is that those who’ve been misrepresented are silenced to preserve the image of propriety.

Copyright © 2015 RestrainingOrderAbuse.com

Accusation of “Whatever”: How We’ve Forgotten What Restraining Orders Were For

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In an offhand response to a comment yesterday, I remarked that restraining orders weren’t meant to provide people with a sense of security; they were meant to secure people from danger.

There’s a distinction, as I also remarked, and it’s been forgotten.

So entrenched an institution of law and so commonplace has the “restraining order” become that people assume that a foreboding or a feeling of unease or apprehension is grounds to petition one (and judicial performance in no way discourages this assumption and may reward it).

I’m even asked, earnestly, “Can I get a restraining order if she called me a bitch?”

My response, though it inclines toward skepticism, is nevertheless, “Who knows?” If a judge says, “Sure,” then the answer is, “Sure.” Whatever the judge says goes. Judicial latitude in these matters is boundless. Statutes may explicitly license the trial court to do “as it sees fit” or “as it deems appropriate.”

By this standard, people are removed from their homes. By this standard, people are denied jobs. By this standard, people are entered into public registries and prohibited from working with or around children and ever seeing their own.

This is how I lost my day-to-day stability to be a normal, reasonable, and gainfully employed person in the community’s eyes [comment submitted four hours ago].

What’s been forgotten is that the motive justification for an unarguably tendentious, superficial, and baggy procedure was real and immediate danger. Restraining orders were conceived as a quick fix to a problem that was both rampant and, more urgently, ignored 35 years ago. That problem was domestic battery.

Today, restraining orders are a quick fix to a new rampant problem: accusation of “whatever.”

Allegations of domestic violence are not today discounted by authorities, as they might have been in the 1970s and 80s, nor is making them scorned by the public as “talking out of church.” Sympathy is all but universal.

Not only, then, is the motive justification for an unarguably tendentious, superficial, and baggy procedure a relic of the past, but violence may not even be alleged in a majority of petitions.

I’ve been in close correspondence with a man who’s challenging the constitutionality of a restraining order against him that exerts “prior restraint.” He’s forbidden to talk about someone online—not temporarily but for all time. He’s been restrained, in other words, for speech acts he hasn’t committed.

In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place. There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional [Cornell University Law School Legal Information Institute].

He’s appealing the trial court’s injunction on First Amendment grounds, and constitutional law is on his side.

Consider, though, that any number of restraining orders are issued on a similar basis. People are restrained not for acts that injured someone but for acts that possibly, perhaps, conceivably could indicate a potential intention to injure someone.

In criminal cases, judges have no reluctance about sternly pronouncing: “Speculation has no place in a courtroom.” Speculation, however, is the heart and soul of civil restraining order cases. Judges may “infer fear” based on the alleged actions of a defendant, and on this tenuously speculative basis, form a ruling whose consequences may exercise a profoundly negative influence on that person’s life.

In other words, people are punished not for things they’ve done, per se, but for things someone feels (or intimates) they might do.

The purpose of restraining orders was not to provide complainants of fear with a sense of security; the purpose of restraining orders was to secure complainants of injury from further harm.

Harm isn’t speculative. It leaves very visible traces.

Copyright © 2015 RestrainingOrderAbuse.com

*Since this post was published it has reportedly become possible for Minnesotans to apply for restraining orders online to prohibit, among other things, “repeated incidents of unwanted…gestures” (cf. the First Amendment).