“Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.” – The Mourning Bride, Act III, Sc. VIII, by William Congreve
“The right to swing my fist ends where the other man’s nose begins.” – Justice Oliver Wendell Holmes
Your rights end where the rights of others begin is a maxim that posits you are free to exercise your rights until such exercise infringes upon the rights of others. It seems like a straight forward proposition, but like many seemingly straight forward propositions, sorting out the primacy of rights when they are equally valid yet conflicting is the basis of many a lawsuit. An interesting case from Minnesota provides an example that illustrates the balancing act between competing individual rights. The decision also provides a solution that while it may address the problem at bar may also be overreaching and a threat to the rights of all.
“Appellant Andrew John Arlotta and respondent Ann Marie Johnson had a romantic relationship from late 2008 to September 2009. After the relationship ended, Arlotta continued to contact Johnson against her wishes and Johnson obtained a temporary HRO [ed. – Harassment Restraining Order] against Arlotta on October 13, 2009. On December 22, Arlotta consented to entry of a six-month HRO that prohibited him from (1) committing any acts ‘intended to adversely affect [Johnson’s] safety, security, or privacy,’ (2) having ‘any contact’ with Johnson ‘in person, by work or home e-mail, by telephone, or by other means or persons,’ and (3) visiting Johnson’s Morgan Stanley ‘worksite.’ By its terms, the HRO expired on June 22, 2010.
Two days after entry of the 2009 HRO, Arlotta created an Internet blog titled, ‘Help Ann Johnson.’ The blog was written in the third-person and documented Arlotta’s ongoing relationship issues with Johnson. In the blog, Arlotta discussed personal information about Johnson, including her involvement in sexually and physically abusive relationships, and questioned the state of her mental health. Arlotta publicized and promoted the blog by sending electronic messages to Johnson’s relatives, friends, and others, and posting links to the blog on other websites. He used fake Facebook identities (‘Dana Russel’ and ‘Pekin Ilanis’) to post the blog to other Facebook users. As ‘Dana Russel,’ Arlotta contacted the father of Johnson’s child nine times between December 28, 2009, and January 27, 2010. Arlotta asked him to “stop by” the blog, telling him, ‘this involves your child,’ and claiming that ‘[c]hild & family services have been contacted.’ Arlotta also contacted Johnson’s grandmother telling her that Johnson ‘seems to have been abused,’ and ‘was either molested or abused as a child or witnessed domestic violence.’ As ‘Pekin Ilanis,’ Arlotta sent messages publicizing the blog to members of Johnson’s high school graduating class, a local television news anchor, and other organizations unrelated to Johnson. As a result, Johnson was contacted by friends, family, and others who expressed concern over Arlotta’s communications.
On August 22, 2010, Arlotta sent an e-mail to a Morgan Stanley employee asserting that Johnson was connected to ‘hardcore criminals’ and that she ‘could be bad for business.’ The e-mail included a link to the blog. The employee, believing the e-mail to be genuine, informed her supervisor, who met with Johnson to discuss the e-mail. No other action was taken by Johnson’s employer.
On September 10, Johnson petitioned for a new HRO. After an evidentiary hearing, the district court issued an HRO on March 28, 2011, that would ‘remain in effect until March 28, 2062.’ The HRO prohibits Arlotta from: (1) ‘[a]ny repeated, intrusive, or unwanted acts, words, or gestures that are intended to adversely affect [Johnson’s] safety, security, or privacy’; (2) ‘[a]ny contact, direct or indirect, with [Johnson] in person, by telephone, by email or by other means or persons; and (3) ‘[a]ny email or other electronic message contact with third-parties that contains any material concerning [Johnson] that affects or intends to adversely affect [her] safety, security, or privacy. The HRO also directs Arlotta to remove his blog from the Internet. This appeal follows.” MN. Court of Appeals A11-630, Johnson v. Arlotta [emphasis added].
The Minnesota Court of Appeals held that the district court properly determined that Arlotta engaged in harassment and violated the first HRO, the HRO is not an unconstitutional prior restraint, the HRO is not unconstitutionally vague, the availability of other legal redress does not preclude issuance of an HRO, and the district court erred in extending the HRO beyond 50 years. The Court of Appeals modified the judgement to a 50 year HRO and affirmed.
The legal logic for each component of the decision – and I invite all of you to read it – is sound; it is formal, concise and relies upon relevant precedent. The issue isn’t that the HRO was vague with the Court of Appeals holding that “Arlotta argues that the order is vague because it does not define his right to publish or identify the subject matters he may appropriately discuss. He also contends that the HRO does not adequately explain the prohibition against ’emailing to third-parties any material concerning [Johnson],’ arguing that it is unclear whether discussions ‘about this case’ with friends and family would violate the order. We disagree.
The HRO incorporates the language of the harassment statute, which we held is not unconstitutionally vague. See Dunham, 708 N.W.2d at 568 (stating that ‘[n]o reasonable person could inadvertently violate the statute because of an inability to determine what type of conduct is prohibited’). The HRO does not prohibit the communication of ‘any material’ related to Johnson or this case. Rather, it prohibits communications that are ‘intentionally calculated’ to harass Johnson or have the effect of harassment, directly or indirectly, as exemplified by Arlotta’s ‘Help Ann Johnson’ blog and his contact with people close to Johnson. The HRO cannot reasonably be read to bar Arlotta from engaging in discussions with his own friends and family about this case, or from publishing on interests or topics other than Johnson. Accordingly, we conclude that the HRO is sufficiently specific so that Arlotta need not ‘guess at its meaning.’ See Connally, 269 U.S. at 391, 46 S.Ct. at 127.”
The issue is that in ordering the whole blog deleted instead of defining to an even narrower scope the material(s) that needed to be deleted to conform to the intent of the original HRO, did the Court of Appeals create precedent privileging the right to be free from harassment over the right to free speech that could ultimately have a chilling effect on free speech? Keep in mind the truthfulness of the statements were never challenged, only the intent and effect of the statements in relation to the original HRO. This kind of legal logic could make things difficult for anyone with a restraining order against them to ever write a memoir or blog about why the RO was granted given the breadth of the remedy. When rights come into conflict, the resolution can sometimes have unintended consequences.
Do you think the court erred in its logic in this instance? Should Constitutionally enumerated rights trump legislatively created rights? Do you think the court erred in not providing an even more narrowly crafted remedy? Do you think this precedent could have unintended effects of chilling free speech? Was the duty to balance rights against each other and compelling state interests met here? Or did the balancing act miss the mark? What do you think?
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~Submitted by Gene Howington, Guest Blogger