what constitutes a speech restraint order?

edited September 2016


  • RestrainedByAngela (RBA),

    Thanks for the great question. Your question is exactly the type that needs to answered because there is lots of confusion regarding of what is and is not acceptable speech especially when it comes to online matters.

    First, the added language becomes problematic and may be subject to wrongful interpretation. Yes, law enforcement and judges do get it wrong otherwise there would not be entire legal papers on the subject by legal scholars and there would not be numerous appellate rulings regarding violations of free speech.

    As a general and practical advice, if someone doesn't want you to communicating with them anymore, then stop. Some people invite trouble because they feel the emotional need to communicate to the other person for whatever reason. That is one of the biggest reasons for getting a restraining order, to stop unwanted and uninvited communication. Trying to use smoke signals, morse code, or some friend to communicate a message invites trouble. What could be so important?

    There may be legitimate issues such as shared children but my guess is there is a provision for this.

    However, if you were talking ABOUT your case and sharing your opinions about Angela such as now in this online discussion, that is not even an indirect communication to her. Angela might be upset and even complain that we are talking about her and her case. But technically, you have not violated the order.

    A Prior restraint is forbidding you from ANY mentions about her, your case, etc. whatsoever. It has been held by many appellate cases that no court can forbid an individual from suspending all speech ABOUT another person or most subjects.

    In a more stickier situation, if you wrote an OPEN LETTER to Angela here, that might get you into trouble. I don't know the legalities but in GA (ruled by GA Supreme Court) an open letter is not considered "contacting" another person. As a practical matter, I would avoid open letters no matter the legalities of it. There is generally no reason for it.

    You can discuss your case and share your opinions about her without invoking a first-person style of writing. You can use private email, social media, or a discussion forum to discuss such matters.

    In all courts, CONTEXT is supposed to matter in all matters of speech. It means that a reviewer should look at the entire discussion, not just pick out one paragraph to prosecute you. And that is what can happen when someone takes a snippet or crop your remarks to make it look like you violated the order when you didn't. It shouldn't happen but it does happen to the detriment of the wrongfully accused.

    As far as I am concerned, there is a such a thing as trying to provoke trouble by going to the outer edges of an order even if you are technically allowed (such as the open letters example). If you have money and have good lawyers, then maybe that is fine.

    At the same time, I am definitely not advocating becoming a mole and going underground altogether. We have the Bill of Rights and the Constitution in the U.S. You cannot have some accuser holding an overbroad and wrongful power against you such as your ability to engage in public speech.

    For example, if Angela were to stumble onto our dialog about your case and she complained, you definitely need to aggressively defend your right to become educated in such matters by sharing the facts of your case. She cannot be allowed to forbid your open discussions especially since you are presumably trying to get smarter and know your rights.

    And this is why I love participating on discussion forums that is Google-indexed. I don't consider it a waste of time for me to type this long explanation because I know many others will benefit. But I would definitely not invest the time to type a private email reply.

    RBA, I thank you for taking the opportunity to engage and so I am able to publicly respond for the benefit of others. There are many who had a similar question but now there is an answer for many others to benefit.

    This is what is sorely needed, good information and discussion. Not just a forum with endless stories of "my life is ruined" testimonials. That helps no one unless it is part of a "what are we going to do about it" type of discussion. That is what I am all about.

    It is shitty to get a restraining order and there are many detriments but I generally don't subscribe to the "my entire life was ruined by a restraining order" narrative. While there are certainly real-world consequences, there are also far worse things that can happen to a person in life. In fact, I may write a separate commentary on that.
  • edited September 2016
  • You cannot be prosecuted for thinking about someone. What do you care whether you follow that or not? You can think all you want, just don't go near her or communicate with her again.

    There are some demands that are entirely unenforceable. People don't get to make unenforceable demands. People have certain choices in life. The ability to think about what you want is one of them.
  • The way I understand it, this is a Wisconsin RO so WI law applies. It's more difficult to fight these monsters because of the collateral bar rule which requires you to get the "civil" restraining order set aside before violating it because it is a judge-made "conviction," not a criminal conviction.

    The language you quote from the order: "No contact, direct or indirect including by electronic means or telephone" is overbroad. So be careful fighting it. I hope your appeals rights have not expired. You may be able to bring a collateral attack against the order, or an action in the originating court to dissolve the order, or at least the unconstitutional part of it. Saying something ABOUT someone on the net is protected by the First Amendment, as long as it is not blatantly libelous.

    MLK spent a month in the Birmingham jail for violating a facially invalid restraining order because he did not fight it in court before violating it, and SCOTUS used the collateral bar rule against him. Later SCOTUS declared the law used against King unconstitutional but that didn't help to free him from behind bars. Lawyers and judges are sneaky as snakes with this collateral bar BS.

    I hope you get some relief. From the facts you have recited, you deserve it.

    Matthew Chan, who has learned enough from his own experiences to be a lawyer in these cases, has given you excellent advice.
  • Hey Restrained by Angela,
    Be careful. Even "thinking" about her might get you in trouble. Get this, the guy who extended the one I am fighting actually said this of my statement in court. He said my response was "self centered". Apparently I was supposed to show more concern about her instead of myself. Which is dumb if you consider the point of the order is to NOT be thinking about her. Did he really think I should be still worried about her after 2+ years? But I was ruled against because I didn't think more of her.

    He also based his ruling on flyers that were disparaging to her which she claimed caused her fear. He called them "abusive" even though they were 2+ years old and the subject of a supposed violation of the order.
  • edited September 2016
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