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Q: I have been served with a restraining order in my county for comments that I posted to a Web site. The plantiff’s justification is that I have engaged in a course of action against her. Nowhere in the posts is her name mentioned specifically, I make no plans to do her physical harm, but make it very clear that I do not like her. I never directly contact her. Wouldn’t I be protected under the First Amendment as what I did was not criminal? Thank you for your insight.
A: You are right that the first amendment is implicated in determining whether a statement or series of statements is a “true threat.” Courts will look at all of the surrounding statements and circumstances. In general, courts seek to determine whether the person making the allegedly threatening statement, under the circumstances in which it is made, specifically intended that the statement be taken as a threat, even where there was no intent of actually carrying out the threat.
For a person to be prosecuted, the statement, under the circumstances, has to be “unequivocal, unconditional, immmediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, [to] thereby cause[] that person reasonably to be in sustained fear for his or her own safety or his or her immedate family’s safety”. Penal Code section 422. You may be interested in a recent California Supreme Court case interpreting those provisions, In Re George t. 33 Cal.4th 620 (2004).
However, under Code of Civil Procedure section 527.6, a person can get a restraining order against someone for “harrassment,” which is a “knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harrasses the person and that serves no legitimate purpose.”
As you have described your postings, it is difficult to tell whether in fact they would form a legitimate basis for a restraining order against you. The other important First Amendment question would be whether the restraining order is forbidding you from making those statements, or merely prohibiting you from approaching that person. If the restraining order is aimed at your behavior rather than your speech (and I acknowledge that the line is not always easy to draw), it may not raise any First Amendment issues.