(1) A person shall not post a message through the use of any medium of communication, including the internet or a computer, computer program, computer system, or computer network, or other electronic medium of communication, without the victim’s consent, if all of the following apply:(a) The person knows or has reason to know that posting the message could cause 2 or more separate noncontinuous acts of unconsented contact with the victim.(b) Posting the message is intended to cause conduct that would make the victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.(c) Conduct arising from posting the message would cause a reasonable person to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.(d) Conduct arising from posting the message causes the victim to suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested….(6) This section does not prohibit constitutionally protected speech or activity….(8) As used in this section: …(g) “Emotional distress” means significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling….(j) “Unconsented contact” means any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. Unconsented contact includes any of the following: … (vi) Sending mail or electronic communications to the victim through the use of any medium, including the internet or a computer, computer program, computer system, or computer network….
But that doesn’t seem to be what the order actually says: It doesn’t ban “posting a message … [that violates] MCL 750.411s,” but rather bans “posting a message through the use of any medium of communication, … pursuant to MCL 750.411s.” Moreover, there are already separate boxes checked on the order for all those specific items from the statute, which I think would lead most targets to assume that the prohibition on “posting a message” is broader than that:
And in any event, I expect the order would at least be seen as covering repetition of the speech that triggered the order, which — according to Judge Matthews’s attachment to her petition for the restraining order — was the following (citations omitted):
5. Following the hearing, Respondent was sitting outside of Petitioner’s courtroom; the Respondent went on a tirade about what had occurred at the hearing and my ruling on the Motion. Respondent was making several threats about Petitioner, and other individual’s involved in the hearing, including:a. “They are all liars”;b. “We are going to take them down”;c. This was all planned out ahead of time. The Judge [Petitioner] had her mind made up as they were in chambers before this “with his [Plaintiff’s Counsel] hand up her skirt playing grab ass”:d. “We will take [Judge] Matthews [Petitioner] out. She has had it in for you from the start. She is only one step over a traffic cop. She will be in jail”;e. “We’ll take this to appeals and that will get [Judge] Matthews out of the way”;f. “Fuck those country club people; they all need to be gone. They think it’s better to die with a full bank account versus ethics and integrity”;g. “Fuck this county. I go away and fight for it and this is the shit I come back to”;h. “Fuck them all”;i. “We will get this to appeals and take them all down”;6. On or about February 20, 2014, Respondent — who uses the alias Malikem Rudd on Facebook, but can be easily identified through his profile pictures (one of which is of the Respondent with Ms. Streng) — repeatedly posted the following rant:a. “So, my Lady, Sharon files a motion in Court to enforce the Court’s order that her ex pay her alimony, for which he was 26 months in arrears. A 4 year felony in Michigan. MCL 750.165. The Court completely ignores her, won’t allow her to talk, and immediately turns to her ex’s attorney and asks: “What do you want?” The Attorney replies: “We want her to sell the marital home.” That she was awarded i…n the divorce! WTF!? The man is guilty of contempt and a felony! How did it get to the point of her having to sell her home? Anyway, the Court appoints a Receiver, the home is sold. Sharon is homeless, and, needless to say, a mental and emotional wreck. A few months later, her ex, via his attorney (Andy Rifkin by the way. A snake and a perjurer) files another motion asking that Sharon have to pay all his attorney fees throughout the case. $40k + and use her alimony to do so. Despite the clear mandates of Michigan statutory and common law, the Judge (Cheryl Matthews, Oakland County Circuit Court, up for re-election this next month) grants her ex’s motion. Ignores Sharon’s written motion, the law, equity and simple common sense and flicking decency. So Sharon has been systematically destroyed and rendered destitute by a rouge, dishonest Judge, and a shithole snake of an Attorney, and faces the real threat of losing her home (again!) this coming month. Her ex, KURT STRENG, is the owner of Cadillac Looseleaf Products in Troy, MI. Rich. Pampered. Powerful. Can afford powerful attorneys, memberships at prestigious tennis and hunting clubs. Lives in a huge house in Bloomfield Hills. It was previously litigated and proven that he told their children, among other things, that he was going to use his money, power and influence to financially, mentally and emotionally destroy Sharon. And he is doing so. I have watched this travesty for over a year now. Attended the Court hearings. A farce! A mockery! A FUCKING JOKE! Dishonest Judge. Filthy lawyer, and a piece of shit, wet rag ex husband. The most heartbreaking part of all this, though, is that she/we cannot seem to get anyone to listen, let alone do anything to stop these three oath breaking pieces of trash from systematically destroying her. So, I am asking you, my friends and family to protest this. Repost this until it is viral. Call and boycott Cadillac Looseleaf Products. 248-288-9777 ext. 101. Kurt’s extension. Call and tell him that you know what he is doing to his ex wife and mother of his children. That you are boycotting his business. DO NOT VOTE FOR JUDGE CHERYL MATTHEWS if that is where you vote. Call the Judicial Tenure Commission on her and complain that she is knowingly allowing attornys to openly lie in court both verbally and in writing. That she is biased, in favor of the rich and powerful (who can afford her), and actively seeks to destroy the poor, needy and desperate. Call the Attorney Grievance Commission and complain about Andy Rifkin. That he is knowingly and intentionally lying in court both verbally and in writing in pursuit of his own personal gain, at the expense others. Please, do these things. You all claim to be so against corruption and the victimization of the poor and desperate, than prove it. Live up to what you claim to be and help this woman. I am a witness to this. She is being utterly destroyed. I am going to repost this over and over and over. I will see who is who on here. Who is real and who is fake. Thanx for reading.”7. Respondent’s Facebook page also contains several disturbing postings involving the use of guns, including:a. “Keep calm and reload. Aim. Shoot again.”b. “Ladies, if your guy doesn’t know how to shoot a gun you have a girlfriend.”c. “Freedom has a nice ring to it…and a bit of a recoil.”d. “Guns don’t kill people — gaping holes in vital organs kill people.”Petitioner is very concerned for her safety based on the erratic actions and statements listed above and is requesting the Court to grant her an Ex Parte Personal Protection Order against Respondent.
Now Heit’s speech may be rude and crude, and I can understand why someone who is the subject to such “tirade[s]” would be made uneasy by it. But Judge Matthews is a public servant, and an elected one at that. And — though the court order labeled these “repeated threats” — Heit’s statements are harsh condemnations of an elected official, coupled with calls to have her defeated at the ballot box, reversed on appeal and (though this is likely hyperbole) jailed. The item about Judge Matthews that might, out of context, be seen as threatening — “We are going to take them down” — appears to be, in context, a calling for taking down through elections or appeals, not through violence; and the Facebook postings seem to be general pro-gun-rights arguments unconnected to Judge Matthews, as you can see from the attachment.
How can this be a constitutionally permissible basis for restricting the critic’s speech (as well as for restricting the critic’s right to possess guns, another prohibition the order purports to impose)?
Unfortunately, Heit didn’t appear for the state court hearing on his challenge to the order, and his federal court lawsuit challenging the Michigan statute was thrown out in October. (I heard about the matter because that decision got posted online, and one of my Westlaw queries came across it.) I think the federal court decision is mistaken, for reasons I give in pp. 762-67 of my “One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731 (2013), but Heit didn’t appeal it.
And the failure to properly challenge the initial order, the loss in federal court and the failure to appeal are unsurprising, given that Heit doesn’t have a lawyer. As I’ve noted before, someone who is criminally prosecuted for his speech but can’t afford a lawyer would be entitled to a public defender, so long as any jail time is possible. But someone who is the target of a protective order doesn’t get a lawyer, since that’s a civil matter — and if the person then violates the order, and is prosecuted for criminal contempt of court, his criminal lawyer generally can’t argue the unconstitutionality of the order in that prosecution.
So yet another example, I think, of a pattern I’ve been blogging about for the past several days: trial courts ordering broad restrictions on people’s speech, even when that speech is likely to be constitutionally protected, in violation both of First Amendment substantive rules and of the longstanding procedural limits on “prior restraints” (which should include such restraining orders).
UPDATE: Commenter DomB13 reminds me that Judge Matthews is the judge who was reprimanded in a different case for saying to a witness was she was “completely full of it” and “full of it up to your eyeballs.”