On July 24, Maine’s highest court, the Maine Supreme Judicial Court, ruled that certain facebook posts made by Richard Heffron III were not protected from prosecution by the First Amendment. He was convicted of violating a protection from abuse order as a result. He had been ordered to have no contact, direct or indirect, with his victim. Despite that order, he posted threatening and personal communications on Facebook where he knew that people who knew the victim would see them. The Court found that he knew and intended for his messages to get to his victim.
On the First Amendment issue, the Court held that courts do not violate a defendant’s First Amendment rights by issuing a protection order. While some speech is protected by the First Amendment from governmental limits, not all speech is. As the Court put it, speech that would cause another to fear bodily injury or suffer emotional distress is the kind of speech that a court can limit and regulate through protection from abuse orders. The First Amendment does not protect a person from the consequences of harassing communications. Here, the issue was really just whether Heffron violated the protection order; the existence of that protection from abuse order was itself valid under the First Amendment.
We have written before that some Facebook posts are in fact protected – we were talking about posts by employees who posted negative comments about their employers (not something we would recommend doing). (https://www.sta-law.com/2018/04/are-protests-protected-activity-under-the-national-labor-relations-act-maybe/) That protection can extend to some pretty obnoxious commentary but threatening and harassing language is in a different category. Employees are protected by Section 7 of the National Labor Relations Act’s protection of “concerted activity” for the purpose of “mutual aid or protection” to improve working conditions or terms of employment.
While many folks think that most all of what they say is protected by the First Amendment, the truth is that it is not. That constitutional right applies only to protection from action by a government entity. It does not apply in the private arena. And, as Maine’s highest court has just reminded us all, there is little protection for harassing and threatening speech in any arena. As a Defendant in a Protection Order, a party must be extremely cautious when posting on social media. While the Defendant in this case was very clear who he was referring to, even a veiled reference to a Plaintiff in a Protection Order could get someone in trouble. Likewise, Plaintiffs should be vigilant in reporting possible violations brought to his/her attention. Our advice? If you are involved in any legal dispute, just stay off social media.
This article is not legal advice but should be considered as general guidance in the area of family law. You can contact us at 207.784.3200. Skelton Taintor & Abbott is a full service law firm providing legal services to individuals, companies, and municipalities throughout Maine. It has been in operation since its founding in 1853.