A gag order or suppression order is a formal directive which forbids people from discussing something publicly. In other words, the gag order is a form of censorship in which intimidation and threats are used to control information being disseminated to the public.
Below is an article regarding how the legal system is misusing harassment restraining orders to restrict free speech, which is what is being done in my case. MA’AM, YOU’RE GOING TO HAVE TO SHUT YOUR PIE HOLE!
‘You are also ordered not to post any further information about the [plaintiff]’
As many readers of this blog know, I’ve long been interested in how criminal harassment laws and restraining order laws have been morphing from restricting unwanted speech to people into restricting speech about people.
Such laws have traditionally covered unwanted phone calls, unwanted letters, unwanted attempts at face-to-face conversation and the like: again, speech to a particular person. Courts have generally upheld such restrictions on speech, and in many instances, plausibly so. As the Supreme Court held in 1970 in upholding a statute that let people block continued unwanted mailings into their homes, “no one has a right to press even ‘good’ ideas on an unwilling recipient.”
But in recent years, courts and prosecutors have increasingly used these laws to cover statements said to the public at large about particular people. Speakers have been prosecuted for posting repeated offensive messages or distributing offensive flyers about people (including about political and religious figures). Courts have issued orders barring speakers from saying anything about a person and ordering speakers to take down existing posts about that person. I wrote a law journal article about this two years ago, “One-To-One Speech vs. One-To-Many Speech, Criminal Harassment Laws, and “Cyberstalking,” 107 Nw. U. L. Rev. 731 (2013); I’ve also filed friend-of-the-court briefs on the subject in six different cases (in Georgia, Massachusetts, New Jersey, New York, Washington, and Wisconsin) and last year had the pleasure of arguing on behalf of amici in one such case, Chan v. Ellis — this March, the Georgia Supreme Court reversed the speech-restrictive order in that case.
Friday, I filed a friend-of-the-court brief in another such case, Van Valkerburg v. Gjoni, now pending in Massachusetts appellate court. The brief is on behalf of Prof. Aaron Caplan (author of “Free Speech and Civil Harassment Orders,” 64 Hastings L.J. 781 (2013), and one of the amici in Chan v. Ellis) and me; Daniel Lyne and Ted Folkman of Murphy & King (and, in Ted’s case, of Letters Blogatory: The Blog of International Judicial Assistance) were kind enough to agree to be our pro bono counsel, for which I’m very grateful. (For our nonlawyer readers, a “friend-of-the-court brief” simply means a brief by people or entities that aren’t the plaintiff or the defendant or some other party to the litigation, and who thus have no direct stake in the case but just want to argue in favor of what they think is the correct result. It doesn’t mean that the brief was invited by the court, though occasionally courts do indeed expressly invite the filing of such briefs.)
In Van Valkerburg, a Massachusetts trial court issued an order providing that Gjoni is
Ordered not to post any further information about the [plaintiff] or
her personal life on line or to encourage “hate mobs”
That order, we argue, is a clear violation of the First Amendment, for reasons we explain in the brief, which I’m also quoting below. A court can’t order someone to just stop saying anything about a person. Certain narrow categories of speech about people are constitutionally unprotected (such as true threats of violence, speech that is intended to and likely to incite people to imminent criminal conduct, and possibly certain kinds of speech that reveals highly private information). But this order goes vastly beyond any such narrow First Amendment exceptions.
Now the story behind this case is considerably higher-profile than the ones I’ve written about before: The post that led to the order is at the heart of the so-called “Gamergate” controversy, which some readers might be acquainted with. Eron Gjoni was briefly romantically involved with Chelsea Van Valkenburg, a computer game developer who used the pen name Zoe Quinn, and who I am told has recently changed her name legally to Zoe Quinn. (The case was entered into the court system under the name Van Valkerburg rather than Van Valkenburg or Quinn, so the briefs use Van Valkerburg.) After they broke up, Gjoni wrote a series of blog posts about Van Valkenburg, in which he accused her — whether or not accurately — of mistreating him in various ways during his relationship. This post in turn led to various accusations about supposed misdeeds in the video gaming industry, and various threats of violence against Van Valkenburg by people who have apparently taken Gjoni’s side.
Naturally, there are many possible legal actions that might be contemplated here. If Gjoni made false factual assertions about Van Valkenburg, she could sue him for libel or under the “false light” tort. If he said things about her that were highly personal and not viewed by courts as of legitimate public concern, she could sue him under the “disclosure of private facts” tort, though that doctrine is quite narrow and complex (for many reasons, including some you can see from Part II of the brief).
Certainly, people who send death threats could be prosecuted for that, though of course it’s often hard to track them down, or even to get the police and prosecutors interested in the matter. In principle, if it can be shown that some statement was intended to and likely to incite people to imminent criminal conduct — i.e., conduct within the next few hours or maybe days, rather than at some unspecified time in the future — that could be punished as well, though that’s an extremely narrow First Amendment exception. (The Supreme Court has struggled since the 1910s with the question of when speech can be restricted because it may lead some of its readers to commit crimes; this ultimately led to the development of the incitement exception, which I just paraphrased, and which the Court set forth and elaborated in Brandenburg v. Ohio (1969), Hess v. Indiana(1973), and NAACP v. Claiborne Hardware Co. (1982).) Such criminal and civil liability might be constitutional, under the right circumstances, since there are indeed some narrow exceptions to First Amendment protection into which this liability could fit.
Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and an intensive editing workshop at UCLA School of Law, where he has also often taught copyright law, criminal law, tort law, and a seminar on firearms regulation policy.