The California Appellate Law Podcast

Eugene Volokh on Restraining Orders and the First Amendment

December 19, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 113
The California Appellate Law Podcast
Eugene Volokh on Restraining Orders and the First Amendment
Show Notes Transcript

Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberbullying,” “hate speech,” etc.—especially when no physical violence threatened or happening. The result is that many restraining orders not only prevent the subject from speaking TO the plaintiff, but from speaking ABOUT the plaintiff, and last INDEFINITELY.

Here are the key issues to spot the next time a client calls you about a restraining order or injunction that affects free speech:

  • Raise First Amendment challenges, and get familiar with the precedent by reading Prof. Volokh’s articles.
  • Look to see if the restraining order merely prohibits speaking to the plaintiff, or goes further and prohibits speaking ABOUT the plaintiff. That’s a big difference that implicates the First Amendment.
  • If the subject of a restraining order is facing contempt, consider raising the unconstitutionality of the order as a collateral bar. An unconstitutional order cannot be a basis for contempt, and unconstitutionality is never waived.

Prof. Eugene Volokh’s biography, LinkedIn profile, and X/Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at

Other items discussed in the episode:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:18  
I am Jeff Lewis.

Tim Kowal  0:19  
And I'm Tim Kowal both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we tried to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast useful, we are grateful if you recommended it to a colleague.

Jeff Lewis  0:33  
Right before we jump into this week's interview, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that's developed AI back tools to help lawyers practice more efficiently since 2013. Casetaxt relied upon by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext's launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use all while maintaining security and privacy listeners of our podcast enjoy a special discount on take casetext basic research and That's

Tim Kowal  1:12  
Well, Jeff, we are both very excited to welcome our guest today Professor Eugene Volokh. Eugene Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law where he specializes in the First Amendment starting in May of 2024. He will be a senior fellow at the Hoover Institution at Stanford. Eugene Volokh has also argued over 35 appellate cases throughout the country, including in California, He's filed briefs in over 150 cases. Many of these cases have involved challenges to harassment restraining orders, which we'll be talking about today. Eugene is also the author of one to one speech versus one to many speech, criminal harassment laws and cyber stalking, and overbroad injunctions against speech, especially in libel and harassment cases, which we're excited to talk about today that was published last year in the Harvard Journal of Law and Public Policy. Professor Volokh has written over 100 law review articles and his work has been cited in over 300 court cases, including in many of Jeff Lewis's cases. So, Professor Volokh, welcome to the podcast,

Eugene Volokh  2:13  
a great pleasure to be on now.

Tim Kowal  2:14 
Eugene, tell us a little more about your work on the First Amendment and what kinds of cases catch your eye to write about, and maybe to participate in submit briefs in? Well,

Eugene Volokh  2:24  
I've written about a lot of fields in the First Amendment. I've written about criminal harassment cases, I've written about the very different area of workplace harassment law, I've written about so called Crime facilitating speech, I've written about speech restrictions imposed on parents in child custody cases, I've written about internet speech attempts to regulate social media platforms, pretty much every area of free speech law that's out there. And I've, I've filed briefs in a lot of those areas. And I've argued in a lot of different kinds of First Amendment cases in various courts all over the country. You know, part of it is because I've been teaching this first amendment amicus brief clinic that I started up about 10 years ago, and I have 12 students a year and we take 12 cases, and I need filled her docket. So sometimes just a case comes my way. And I thought, oh, it'd be fun for students to work on it. And sometimes something comes my way and say, Oh, this is an area that I've actually been doing extensive writing about. And I'd like to actually litigate the issue in order to bring the arguments before the courts, criminal harassment cases. And the civil harassment restraining order cases are like that. I wrote this article, my first article on it in 2013. And since then, I've filed briefs in well over a dozen cases, I'm sure and are argued in some in some courts, I think, most recently, the DC court of appeal the highest court in the DC court system, not the federal side, like the DC Circuit, but kind of the the analog of state supreme court for DC, specifically about harassment restraining orders, and was based in part on the articles that I've written. And

Tim Kowal  4:15  
the cases that you that you choose to take up when you say you got an amicus clinic, and you've got to take on 12 cases and select 12 cases. How do you choose those cases? Are they you know, if they've reached if they're if they're wending their way up toward the higher court? Are they hot button cases? Or are they cases that you're spotting issues that that are represent splits of authority or shifts in the law? What are you looking for in these cases, the

Eugene Volokh  4:39  
most important factor is timing. One of the problems of course, is that litigation calendar doesn't always match the academic calendar. So I need briefs that students can work on during the semester or now that I've shifted to you around your long clinic during either of the two semesters. With luck, not in the middle of exams with luck, not in the summer. So that's one thing A second factor is, is it something that I think is manageable for students, most First Amendment issues, especially when you file an amicus brief file an amicus brief, you don't need to deal with all of the various procedural stuff that goes on, most of those issues are going to be pretty manageable. Some things I stay away from, like some of the campaign finance schemes are just so complicated. So technical, I think it just be a little too much work for my students. Another factor is I like to have students have a mix of state and federal cases, preferably in various places. So all else being equal, if I've been doing a lot of federal cases with them, and something comes up and I don't know, the Mississippi Supreme Court. Well, that's a good one. And other factor is, sometimes I owe people, right, like somebody's helped me out in some past case. And then they email me say, Well, look, you know, do you suppose you could file an amicus brief in our case? Yeah, well, you know, be pretty churlish of me to say no, assuming that this is an interesting issue, given how much this person has helped me out, maybe being local counsel in a past case, you know, like all institutions, this is a my clinic is a human institution, and there are human factors involved. So and then by the time all of this is worked out, I usually have maybe about 1520 cases to choose from for the 12 slots. So try to come up with an interesting mix of issues for the students. But But by and large, we're pretty flexible, I do favor a little bit, the ones where I'm interested in as a scholar, just because I know that's something that will will help me kind of put out ideas that I think really we have a real marginal advantage with one other factor that comes up in some of these cases is sometimes we're supporting lawyers who are really good lawyers. And I know first amendment already, how much can we add through this friend of the court brief? And sometimes the answer is not a lot, I'd say, you know, not sure that this is worth worth trying to do. And maybe it's sort of a waste of the court's time to file a brief that basically just says we agree with you. On the other hand, if it's in a field that I've worked on, I could say, well, you know, I think I probably have something innovative to say

Tim Kowal  7:09  
here. Yeah. Now Now turning to free speech, we had Jeff caster on the on the podcast recently talking about his new book liar in a crowded theater. And he commented that the reaction to his book surprised him a little bit, because there are a lot of people, he was surprised that so many people were surprised that certain false speech could be protected under the First Amendment. And he thought that these were people who should know better that the First Amendment broadly protects all types of speech. I wonder what if you've had a similar reaction, thinking and writing and working in this space of First Amendment free speech? For for many, many years and decades? Do you think that that many people who want to know better are surprised that so many kinds of speech are are protected or should be protected?

Eugene Volokh  7:57  
Well, I think it varies. It also depends which kinds of people. So there are three audiences for the kind of work that I do. A one is the public, especially with my blog posts, and occasional op, eds, and such. And there, it's true, many in the public aren't aware of the full scope of free speech protection. And I like to surprise them, because that's the real value to readers is if they learned something they didn't already know, that I'm writing. When I'm talking to other law professors, through my law review articles. By and large, they are aware that they're pretty broad scope for free speech protection. But there I do need to surprise them one criterion for a law review article, it's got to be novel, if it's if everybody already knows it. Or even if a few people already know it, if somebody else has written about it, I'm I shouldn't be, shouldn't be adding to that unless I have something really innovative to say. So they're often the surprise is that there's a problem out there. They be the law professors don't know about So to give an example, when I wrote this article, and overbroad injunctions in libel and harassment cases, the main value to it was to say, look, here, I've gathered basically a couple of 100 cases where courts are issuing injunctions prior restraints on speech that all of us recognize is protected. And yet courts are taking a different view that should be surprising to you about what's actually happening in the court system. To give another example, I wrote this article about about the law of pseudonymous litigation. When can people Sue as John Doe's or Jane DOE's? That's also a First Amendment issue, because there's a First Amendment right of access to court records, which presumptively precludes pseudonymity I think a lot of people were surprised that the area is so unsettled, that they probably thought you know, yeah, most of the time, you can't be a John Doe. But sometimes you can look at Roe v. Wade, for example, look at sexual people suing over suppose alleging that they were sexually assaulted. Well, it turns out that even on this isolated question of people suing alleging sexual assault cases are split, not quite 5050, but not far from it. I think a lot of people were surprised that this is an area that's so unsettled. And there's the third audience, which is judges. And one of my favorite lines is, law is the only discipline in which the phrase that's an original idea is a pejorative. Now, it's not so with a Academy, because again, in the academy, it's all about originality. But in court, what you're supposed to be saying to the court is, Your Honor, there's nothing at all novel about my argument, in fact, look at all of these courts that have recognized that, of course, this must be true, you know that I just would like you to apply this to this particular case. Now, of course, I'm overstating in some measure, and sometimes courts do say, wow, I've not thought of this before. But but this is something that is, even though surprising, it's clear, it's well supported by precedent. But I. But I do think that the way one writes a brief usually is to not say, Oh, I have something really innovative to tell you, but rather, here. Here's the precedent, and it just happens to lead to the result that I favor.

Tim Kowal  11:12 

You know,

Jeff Lewis  11:13  
Professor, let me let me ask you, is it a bit like screaming into the void or the wind, because in terms of your efforts to educate judges, because from my experience, as an appellate lawyer, who's asked to overturn or seek to overturn restraining orders, it seems like trial judges are more and more likely to grant overbroad restraining orders that chill speech about somebody as opposed to speech to somebody is it your experience that trial judges are getting better educated about the limits of the their ability to issue these restraining orders, by

Eugene Volokh  11:46 
always hesitate making or endorsing claims of things are changing, sometimes more common, something's less common, because in order to make that kind of claim, one has to first have a good sense of what is actually going on in the world today, not just in that couple of cases that come to my attention, even a couple of dozen, or maybe even a couple of 100 cases, but in the universe of all the cases out there. And then one has to have a sense of what it was like in the past. If it's getting worse or getting better, we need to know both. And I have very limited confidence in my ability to figure out what's actually happening in the system as a whole. And certainly in what was happening 510 years ago. One of the problems, of course, also is that we noticed the things where things are going wrong. If a judge declined stet enter a harassment restraining order saying this is constitutionally protected speech. I'm not gonna restrain it. Yeah. Well, that trial court decision is not going to appear generally speaking on Westlaw or Lexus, even if it does, it may just be a one line order denied. You could imagine somebody alerting me to this saying, Oh, this judge applied the First Amendment or this was so wrong, I should have gotten this restraining order. And I didn't, you could imagine that. But I think it's a little bit more likely, especially given what I've written that I'm going to learn about the unconstitutional restraining orders. That's perhaps and precisely because that is the man bites dog story, right? It may be that the dog bites man story, which is judges do the right thing and follow the law. Maybe that is dog bites man, it is something that happens 99% of the time, but we just don't notice it. We just don't pay attention. So I will say I've certainly seen enough cases out there where judges end up issuing harassment restraining orders purporting to ban future speech that is pretty clearly constitutionally protected, or to impose other limitations on someone based on their past constitutionally protected speech, is that I do think there's a problem there. What's the magnitude of the problem? What's the fraction of cases in which there's a problem? I have no way of knowing. But I do think there is enough of a problem out there that I think it's worth fighting. I will say there have been some appellate cases that have in recent years, done the right thing here, that is to say, made clear that there are First Amendment restraints on these kinds of orders and and apply those first amendment restraints. And, you know, my sense is that at least some judges will read the precedent or some lawyers will notice cite the precedent. And that will they'll follow the precedent, will all of them know not all of them because they may make mistakes or in a lot of these cases, there aren't lawyers. A lot of these cases are self represented litigants. Right? Right. A judge. You know, judge may do a bit of research, but may not be aware of some recent case. I'll tell you just to give an example. The Florida appellate courts have in recent years been quite good in issuing Kate a decision after decision saying, you know, this order was unconstitutional violated the First Amendment or just went beyond the permissible bounds of our states. statute by restricting this kind of speech so good for the Florida court court of appeal districts that they're saying this, but the very fact that I've had to say it multiple times mean, some judges aren't yet getting, getting the message. So I do think there's a problem out there. I do think it's worth fighting. I do think that over time, judges will get message more and more, but you know, it's a Human Institutions and Human make mistake, and that is to say, the judicial system and humans make mistakes.

Tim Kowal  15:27  
Well, it's interesting that that judges need to hear these things more than once. And and why should that be? And in most cases, you know, there's one precedent out there. And as long as it's the precedent is clear, and it's not, it's not convoluted or contradicted, undermined by other precedents, the judges will find them and follow them because they don't want to be overruled. But there are there must be another motivation. And another sense that that I need to protect the victim here. Right.

Eugene Volokh  15:53 
Right. I do think there are two things going on there. One is just there are all sorts of opportunities for error in the system. So you say as long as the decision is clear, or sometimes it's not that clear. Sometimes it says on these facts, this injunction was unconstitutional. But recognizing, of course, in some situations, it might be constitutional, let's say if there was a true threat of violence. Well, we might say that Well, that's pretty clear. It says you can't restrict constitutionally protected speech. But true threats are constitutionally unprotected. But it might be that lower court judges who don't know as much about First Amendment law might might not not recognize what's really going on here. And how broad the precedent ought to be read. You also say, you know, the judges find the cases, sometimes they don't find the cases. Sometimes the lawyers don't find to show it to them. Sometimes there are no lawyers. Sometimes when the judge looks, you know, the research may not be great. Part of the problem is a lot of these judges, they know a lot about restraining order law, but they don't know a lot about First Amendment law. So their first temptation is just to go along with the way everybody's been doing things in their courthouse in these kinds of cases, rather than looking for some new precedent that has that has recently come out. This having been said, I think you're quite right, that there is some pressure and its pressure that stems from human nature, it's pressure that stems from reasonable, understandable human instincts, even if it is not legally, legally, the results are not legally justifiable, some pressure to restrict certain kinds of speech. Part of it is I think, many judges not all judges, but many judges view themselves as kind of common sense problems. So yeah, they've got this dispute, it could be disputed between exes, or between family members, or neighbors or whoever else. And seems pretty clear that people are kind of losing a sense of proportion out there, if somebody's saying things that are really very offensive, or might endanger somebody's livelihood, or whatever else. And the sense is, you know, something ought to be done. Not something super serious, we're not going to throw someone in prison, generally speaking, at least unless they violate the order, we're not going to say you can't express certain big picture viewpoints, you can't speak out, for the Palestinians or for the Israelis or whatever else. It's just look, you know, it's just a small thing. Just stop talking about this person. You've said enough, start talking about this person. And I think it many people and some, including some people who wear robes, their reaction is, you know, isn't that the right solution, the sensible solution, the one that will keep the peace in the neighborhood? Now, of course, I think the judges should follow the law. And I think that should be their first first requirement is they should look very closely at the law and follow the law, and not just be common sense problem solvers. But, you know, I think there is a normal human adaptation to see the you know, what can I do to just make this thing which any reasonable person not focusing on the legal principles would say this is it's a bad situation, I'll make it go away. There's another thing. Maybe it's a special case of this. It's one of my favorite lines I found in the docket of, of a Wisconsin record of a trial court order. In Wisconsin, a lot of these things just appear in the docket sheet itself. And there is this dispute, I think, between between parents who are suing a woman who are suing the daughter, excuse me, who was was saying all sorts of things about them. And the line from the court, the court ordered the woman to cease posting any information about your parents on social media referencing indirectly or directly, either one of them clearly unconstitutional. I think this isn't limited to threats. This isn't limited even to libel it anything. You just have to stop talking about these people on social media. That can't be right. But well, but then the court added court informs the respondent that all the craziness described in these petitions needs to stop totally. I think this is the reaction that some judges have, say, you know, I'm the adult in the room, either compared to both parties, or at least compared to the defendant, the defendant is acting in a childish way, or maybe in a crazy way, maybe in a license, maybe even kind of in a in a mental illness sense. This is just This is just ridiculous. And if you were, if maybe the thought of the judge was, look, if you were talking rationally about things, if you were actually complaining about some kind of misconduct or something, of course, you'd, you'd be free to do that, because of free speech, because of the marketplace of ideas, search for truth. But you're just nuts. You're just obsessed with bad mouthing these, these plaintiffs in this case, your parents, all the craziness has got to stop totally. Yeah. Now there is no crazy speech exception to the First Amendment. That exactly to the extent that restrictions can be imposed on people who are mentally ill. And some can be, although I'm not sure on their speech that requires very particular and rightly demanding processes. But again, Human nature being what it is sometimes a judge by look, see this defendant who's just who's just if not literally insane, kind of speaking in a crazy way, and say, you know, I just want to make it stop. The plaintiffs are saying we just want to make it stop. And they're right.

Tim Kowal  21:19 
Do you get any sense in your research, that these kinds of restraining orders that all the craziness has to stop type of restraining orders are on the rise? In in? Well, again,

Eugene Volokh  21:30 
I am very hesitant to say on the rise, because I don't know what there were like 10 years ago, for all I know, maybe there were plenty of them. Maybe I'm just seeing more now or maybe even I saw a lot, then I just don't remember it? Well, yeah. All I can say is there are quite a few such examples. Some of them most of the outright seeming craziness. And sometimes, you know, this is something where I at least I don't see any real evidence of crazy. There was one example that is actually the first case that I if I recall correctly, that I actually argued along these lines, it was ultimately decided on state law grounds, not on First Amendment grounds. But I think the state law was rightly interpreted narrowly, in part because of First Amendment concerns. So the case is called chan V. Ellis. And it's in the Georgia Supreme Court. Here's what happened. Linda Ellis is a poet and she wrote this poem, about about grief and loss and kind of looking back on someone's on a on a dead loved one's life. And it struck a chord with people, people people appreciate in people than just reposted it on their on their web pages, sometimes in business, sometimes, in religious context, sometimes personal. She got upset about this, because she thought people were using her words, which they were, and she thought this was a copyright infringement, which may or may not have been so a lot depends on the use for commercial purposes or not difficult question, the legal doctrine, there's called fair use. The question is, when is it fair to make copies of another's work? interesting and difficult question. That's not what this case was ultimately, though, about, she was sending these demand letters, or we're sending demand letters to people saying pay me money, or I'll sue you for copyright infringement. And there was a website that Matthew chan ran, which basically was discuss this phenomenon of people sending demand letters over what over what they he and others connected with the site thought were very, very, not quite frivolous, but at least borderline cases of infringement, or maybe even clear cases of non infringement. And the theory was behind that many people who operate the site had was that basically this is a kind of low level extortion, not in literal sense. But people saying, essentially, pay me money, or I'll sue you. And that's going to, that's going to cost you a lot more, by way of legal fees, is actually the website was set up in response to some photo licensing companies who were doing this as a business model. It wasn't set up to criticize Linda Ellis, but There ended up being quite a few posts there criticizing Linda Ellis. So she sued and got a restraining order requiring chan to remove all posts relating to her from the site are about 2000 posts, you know, maybe some of them might have been maybe threatening, maybe libelous, but maybe not. The court did not make any specific posts by post findings. It just ordered him to remove all of the comments about

Tim Kowal  24:41 
was it on based on a finding of libel? No,

Eugene Volokh  24:43  
no, no, the theory I think, I mean, it's hard to know why the trial court judge that is probably said, you know, it's just not fair. You know, people sometimes use these terms bullying, cyber bullying, online harassment in a very loose sense, just the sense that it's is just not right for people to kind of pile on to on top on somebody and accused them of things. Not even if they're false, even if it's just opinion. It's just too emotionally taxing. It's maybe bad for the person's reputation and the light just stop all the craziness. Right? Although, but I give this as an example, that this is not outright crazy. So unlike that other example of the parents suing their daughter, I think the judge couldn't have said, well, this is just, this is just a bunch of crazy people saying things are one crazy person saying this. No, here. I think it was a situation where the judges thought it was unfair. It was unduly hostile. Again, it was bullying a term I often hear, which is basically not a defined legal term, I think. And I can give you lots of other examples that are along similar lines.

Tim Kowal  25:49 
But yeah, that that seems to be a problem is not this. The term bullying the term harassment? I think there's a new, someone pointed me to a to a California bill, a new proposed bill on harassment, where harassment, the term harassment is defined as any conduct doing such and such and such including harassment. So it's a circular definition,

Eugene Volokh  26:08  
right? Regrettably, the word harassment sometimes is defined. Sometimes there are laws of mention that don't define it. And sometimes they define it in a circular way, like things said, with the intent to harass. And then the question is, what does that actually mean? And the answer is, in some situations, it may have a pretty clear meaning. So we talked, I think, Jeff, you brought up this distinction, unwanted speech to a person and speech about a person. My sense is that historically, what used to be when people talked about harassment in the 70s, you often referred to, let's say, a telephone call, harassing telephone calls, it's still a crime, if you call someone up, and either just to wake them up in the middle of the night, or to say nothing and just maybe tie up their phone line or make them feel vaguely menaced, or sometimes even just keep calling, keep calling them to bug him about something and they say, Look, stop talking to me, you've tried to persuade me, I'm not going to be persuaded goodbye, just don't call this number again. And there is, you know, different jurisdictions define this kind of offense differently, use different labels. But sometimes, there's the sense that it is harassment to continue talking to someone when that person has said, Stop. But there's also the sense among some, that it's harassment to talk about someone to say mean things about them, or to just express maybe not even mean but just express critical opinions about them not just once, not just twice, but again, and again and again, online, or in a way that leads lots of other people to do the same. And that often is not terribly. That kind of broad sense of harassment is not terribly well defined. They've got to figure out some way the courts or the legislators who want to restrict that have to figure out some way of distinguishing that from a newspaper who could be writing things about someone that's very bad for his reputation, even if the statements are true or matters of opinion. It can be very distressing. But of course, there's the sense obviously, you can't get a newspaper to take down the it's articles on that theory. So what's the difference? Well, one's intended to inform and one's intended to harass, but again, what is harass hear me, because in a lot of these situations, the defendant says I am trying to inform people about what a bad person the plaintiff is. So in any event, yes, there's a lot of circularity, a lot of vagueness. And when the law is not that vague when it's clear, at least in some jurisdictions, it is clear but very broad, and indeed, unconstitutionally overbroad

Tim Kowal  28:38 
will tell us how should we be thinking about these the concepts of harassment, cyber bullying, bullying, hate speech, these are as if they're not assuming they're not connected? Or they don't threaten violence, actual violence. You know, if they threaten that actual violence, it's a different thing. But if it's just pure talk that other people don't like, and then they can fall into these definitions. However, assuming we can define them in some objective, discernible way, bullying, cyber bullying, harassment, hate speech, do these things threaten the First Amendment? Can we have prohibitions on these things consistent with the First Amendment?

Eugene Volokh  29:17
Well, let me break this up into at least two categories. One is so called hate speech, generally speaking, that refers to the expression of ideas or viewpoints that are seen as hateful or, or advocating inequality or inciting people to discriminate or whatever else. Generally speaking, there is no hate speech exception to the First Amendment. The Supreme Court has made that clear, and the Supreme Court has made clear that generally speaking, the government can't discriminate based on viewpoint in restricting speech, including hateful viewpoints or biased viewpoints or whatever else. harassment and cyberbullying usually not always, but in the context that we're describing, usually referred to spin Each that is about a particular person. It's often restricted without regard to the particular ideology that's being expressed. Sometimes it's limited to negative viewpoints, critical viewpoints of the person, but it doesn't target biased viewpoints. It doesn't target racist speech, or anti semitic speech or anti gay, or anti Catholic or whatever else, the focus there is that it's about a particular person and maybe seriously distressing to the person or maybe setting with the intention to it, to harass that person or abuse that person or whatever else are there, it seems to me that kind of speech. And I'll oversimplify here, the actual rules ended up being I think, quite complex in many ways. But the big picture is, I think there are two situations where speech can be restricted on the grounds that it is about a particular person and is harmful to that person. One is if the speech falls within one of the existing First Amendment exceptions, so threats, if I post something about a person, which says I'm going to kill this person that's punishable threat. Another example is defamation. If I actually say things that are factual assertions that are false, they tend to damage reputation. That's libel, That's slander, if it's oral, more broadly, it's defamation. Increasingly, courts say I wrote a separate article about that, that it's okay to issue injunctions against defamation. So I think in principle, that kind of speech could be restricted using the right statutes based on the right factual fight. Another category might be solicitation of crime. So if I post something, saying, here is a list of people who my friends and fans should, attack should beat up should they should destroy their property that if I named particular people that is solicitation of illegal conduct against that person, but all of these fit within exceptions to the first, and a second kind of thing that I think can be punishable under the rubric of harassment is again unwanted speech to a person, like you keep sending messages to the person after the person has made clear that they wanted to stop or in context, it's clear the person doesn't want to receive that. It's an interesting question, by the way, how we should deal with that when it's unwanted messages to a government official. There's actually a whole separate small but important body of precedents, one of which I argued back in the Nebraska Supreme Court 13 years ago, having to do with the right to say things to a government official, or there was a candidate for government office. But setting that aside, I think most people should be allowed to say, Look, stop, stop bugging me, stop talking to me. But outside of those two categories, speech that is fills with fits within an exception or speech established First Amendment exception, or speech that is unwanted speech to about to a person as opposed to being about a person outside of those categories, I think any attempts to restrict the suppose at harassment, whether through criminal law or through injunctions or something like that would be unconstitutional.

Tim Kowal  33:00 

And are you looking for you're looking for challenges that would? I'm thinking of, I think there is a new law. Jeff, we talked about this new law in California, in which that allows employers to seek restraining orders against people on behalf of their employees. So there has

Eugene Volokh  33:19 
been there have been such a such a workplace violence restraining orders essentially, in authorized in California, it sounds like this law is being broadened here. There. I think it's again, it may be it's a similar question. So let's say somebody is posting threats of violence against a business's employees, you know, the employees, I think, should be able to get some remedy against that. And if the business can sue in its own right, that may make sense too, because threats of violence to employees also, is interference with the with the operation of the business. What about an let's say, people coming on the property, let's say the business says, you know, I want people to not this person not to come on my property because I'm afraid of risk of violence. Well, you know, they already have the right to enforce trespass law, this may just be a more efficient way of, of protecting against trespass. On the other hand, to the extent that courts start issuing orders, saying you can't post anything about the business, or about its employees, accusing them of various mistreatment of you that I think would be unconstitutional, unless there's a binding first that that your assertions are false and defamatory. And that after that, maybe there could be a restriction on repeating those assertions. But beyond beyond that kind of situation where, where it's enjoining, libel or threats or some such restrictions on what people can say about a business, as opposed to when people can go and visit the business, let's say those would should be unconstitutional. Those are I think unconstitutional should be recognized as such. One

Tim Kowal  34:59  
of the The points or observations you make, in your, in your article, overbroad injunctions against speech is that courts sometimes are inclined to grant restraining orders that chill speech Despite long standing First Amendment protections, because private speech may sometimes be seen as less respectable, then media outlets speech, for example. And so putting those two ideas together, that an employer such as a media outlet might be able to get a restraining order against someone who is harassing, or annoying, one of its employees, maybe maybe a media outlet, who has a reporter who is trying to get information about an individual and maybe Daxing, the individual harassing the the subject to get news out of them. And maybe that individual, the subject of the investigation, starts writing to the journalist and says, Hey, Stop bugging me Stop harassing me. And maybe the media outlet could get a restraining order against the subject. While while its journalist is the one doing the harassing and bullying of the subject, because of that, that kind of asymmetry, you point out that individual speech sometimes seems less respectable.

Eugene Volokh  36:08  
You know, it's hard to know, there's a lot of hypotheticals in some hypotheticals in that hypothetical. I do think that, in principle, there should be protection for journalists, as well as others against certain kinds of speech, like threats of violence, you're shouldn't be allowed to threatened violence against against anybody, including journalists. As you mentioned, Daxing, that's itself a little complicated. Complicated territory. Daxing. Like, like bullying is not a well defined legal term. And sometimes it used to be I think, although maybe again, I should be hesitant about saying how things were, I remember some situations where Daxing was used to refer to publishing private documents about someone about someone publishing information about their bank accounts, let's say or their social security number, some such and you know, that might in fact, be restricted, although it's a complicated question. On the other hand, often people use Doxxing not just mean identifying someone as having said something or done something, just identifying them by name, maybe by photo, maybe by employer, which, in fact, speaking of media is what media do all the time, right? Yeah. When somebody says, Wait a minute, you doxed me in your article on the front page where you said I was accused of malpractice or fraud or embezzlement or child molestation, you gave my name, you included my phone number, and you said where I worked. Newspeak would say the call that Daxing. We call that news reporting. Right. So So I think we need to kind of keep identify whenever we're talking about some hypothetical exactly what it is that people are being accused of doing and whether they're being restricted from saying This having been said, I think what you point to, I think is quite right, that if you think of any of the injunctions that I talked about, like say the one and Janet ELLs and said, you know, your magazine, who writes that writes about online issues, maybe Wired Magazine, you'd written some articles about Linda, LS, you got to stop writing about her. And you got to take down those articles. I think very few judges would issue that order. I've seen a very few orders against against media outlets, usually usually very small outlets. But judges, I think, instinctively recognize, wait, wait, I can't do that. But I do think there's some tendency to, even though the First Amendment rights that we enjoy as ordinary citizens are the same as the rights that the New York Times enjoys. They don't get any special protection by the First Amendment just because they're in the in the news business. I do think that empirically, some judges do have a different reaction to speech from a professional news gather or news reporter than they do from just some average average Joe.

Jeff Lewis  39:00 
Yeah. Although it's interesting, though, if you're an average Joe, but you happen to have a 1 million or 10 million followers and you say, hey, Twitter, do your thing with a picture of professor, that's, you know, it's not a solicitation. It's not hurt. It's not exactly Daxing. It's just do your thing, and somebody who's got that many number of followers could do a lot of damage. There's not a whole lot of remedies you have against such a person. Right.

Eugene Volokh  39:24 
So that's an interesting point. It's, again, a somewhat separate point. I haven't seen any real, say, attempts to try to restrict that and a harassment theory, although occasionally I have seen it I've seen libel cases turn into these overbroad injunctions in those kinds of situations. But yeah, as a as a First Amendment matter, say some celebrity wants to wants to say something offensive about some and shouldn't say offensive even say something harshly critical of some say this person is a racist this person, I got bad service from this person. See if it's false. And it's a factual assertion, and maybe the maybe the celebrity could be sued for libel. And there have been such examples. But there was an actually a recent lawsuit against Alec Baldwin, for libel for that I think was just recently settled. But let's say the person just says, you know, this, I'm going to quote this tweet or quote, this statement that some ordinary person made, I'm going to quote them to my million followers and say, I think this is a racist state, in context, clearly a matter of opinion, something that celebrity is free to say, but what happens when 100th of 1% of that million, which is to say 100, people get really irate at the target, and then start sending that target death threats, let's say, right, and maybe, of those 100 people, 5% five people actually physically go to the targets home and break the windows or even physically attack the target. On one hand, you know, this is protected speech. On the other hand, it's certainly protected speech that may cause considerable amount of harm, even though by hypothesis, this violence or vandalism was done by five out of the million followers. The First Amendment answer, I think, is people are free to sharply condemn other people, even if it's foreseeable that some tiny subset of the audience will commit crimes as a result. I mean, maybe it's the newspapers historically, you know, the newspaper publishes an article saying this person has been accused of say, child molestation may very well be that someone takes the law in his own hands and tries to attack the person, you can't sue the newspaper for that at the same time you it's true, we can't deny that that kind of speech to a large audience could lead a tiny fraction of the audience to engage in criminal act.

Jeff Lewis  41:47  
Yeah, well, let me push back a bit on the imagine, rule, like the dog bite rule. The first time five of your 10 million followers does something violent. Yeah, who knew that was gonna happen? Let's say the same Twitter person, does it 10 times and all 10 times five people get violent? I think on the 10th time, the First Amendment has run out of grace. Personally, I don't

Eugene Volokh  42:08 
know of any authority for that position. And he hacked I mean, imagine, imagine this, this is indeed applied to newspapers. Okay. Are you aware that there have been times when you've written stories about supposin, scandalous misconduct by people child molestation, again, embezzlement from a local charity, some kind of fraud, defrauding the elderly of their life savings that some people have attacked the subject? Yes, absolutely. We have an audience of a million people. And yes, in those instances, we know that one or two of them did it. Aha. Now you know that when you write articles accusing people of crimes, there are going to be some, some examples of attack against them. So now from now on, that can be enjoined. Or you could be sued for that. That's not the law. In fact, there's a case that is actually kind of on point it I think, logically, it's on point, it's just a very different technology, NAACP V. Claiborne hardware, it's a 1982 case. And you might think of it as a proto Daxing case, it itself arose out of out of a civil rights boycott, in the 1960s, just sort of just a reminder of how slowly or civil justice system sometimes operates. And the boycott was organized by the Port Gibson Mississippi chapter of the ACA of the NAACP. And it was a boycott by blacks of white owned businesses aimed at changing the the allegedly racist policies of the businesses and of the local government. And some of these boycotts are most effective one, pretty much everyone goes along with them. Some black citizens did not want to go along with it. Maybe they didn't share the NAACP ideological perspective on such matters. Remember, they just figured looking, I want to shop at the store to buy food for for my family. So the way that the NAACP chapter and others involved in the boycott fought that is they stationed people outside of the outside of the stores, took down their names, and then publish the names and mimeographed newsletters. That was a thing back in the 1960s. There and also read them out loud at meetings of the group at local black church. So this is not worldwide distribution on the internet, but it is distribution to the very people who are most likely to be upset by this and most in a position to actually act violently against the targets. And in fact, there were instances of islands hard to know, Is it four, was it eight, was it more. In any event, the court listed them and acknowledged there were there certainly were at least at least more than one or two incidents of violence, unsurprising in that kind of situation where emotions run high. Even if you Most people just use this list as an occasion maybe for social ostracism, or kind of social pressure on the people who aren't complying a few people are going to act violently. That's just human nature. Supreme Court said that's constitutionally protected speech. So if you want a case on Daxing, that's the one Supreme Court case that is most onpoint.

Tim Kowal  45:19 
Interesting, I'd say about campus, campus speech cases where a speaker is invited. But then there, there are musings of violence if that speaker arrives. And so a condition is is put on, on the speaker on the event that if you want the speaker to come more than willing to borrow more than welcome to come, we're not going to infringe on your free speech rights, but you have to provide security and you have to have a budget for security. Right. And sometimes that becomes too onerous. And so the right is cancelled. Yeah,

Eugene Volokh  45:50 
so that's an important question. When I'm getting outside of the, the the harassment and cyberbullying and such field. There is a case on point, at least, maybe not on all fours, but let's say on three of the four called Forsyth County versus nationalist movement, I believe it's from 1992. And it involved a parade by a racist white supremacist group in us, everyone sane County in Georgia. And the county said, Well, you need a parade permit. That's okay, generally to require that, but we're going to calibrate the cost of the permit to the amount of security that we expect we need to provide. So if you want to parade here, you have to, you have to pay and I believe it was capped at $1,000. So it wasn't a vast amount. But still, you have to pay more, if you're controversial, essentially. And the Supreme Court said that's unconstitutional. That's viewpoint discrimination, because your targeting viewpoints maybe not based on whether the government agrees or not, Although who knows what's really going on behind these discretionary judgments of just how much security is required. But in any event, you're discriminating against viewpoints that are unpopular, even if the government doesn't object to them, the government says enough members of the public object to them they have to pay more, that's unconstitutional. This has to do with a parade permanent a traditional public forum. Public universities are generally not viewed the property is not viewed as a traditional public forum. It's a designated perhaps, or limited public forum. But even in a limited public forum, viewpoint discrimination is still not allowed. And the Forsyth County rationale, the Supreme Court's rationale in that precedent was this is discrimination based on viewpoint. So I think a public university can't calibrate the security fees to the controversial pneus of the message either. By the way, it could probably say, Well, if you want to have a speech for 500 people, you've got to reserve a room for 500 people, and we're going to require you to pay four or five police officers. Whereas if you want a speech for 100 people, and then you can reserve a smaller room and then it only require you to pay for one police officer. So continent content neutral restrictions based on the size of the event might be permissible, especially on probably are permissible, especially when it comes to university giving access to its buildings which it has no First Amendment obligation in the first place to give access to but viewpoint based restrictions, including ones that target for higher fees, controversial viewpoints, those are probably unconstitutional.

Tim Kowal  48:33  
Okay, to bring it back and conclude our discussion on restraining orders. And we talked a lot about restraining orders and and abuses of restraining orders. What are your recommended recommendations? We talked about restraining order and statutes that have definitions of harassment and bullying that are a little bit vague and could could run afoul of the First Amendment. So our our your prescriptions, you know, tailored to the legislature or we also talked about judges sometimes, on these hard cases, sometimes we'll just defer to protecting the victim and stopping all the craziness. So which of your prescriptions go to the legislature and what are your prescriptions go to Judges? Well,

Eugene Volokh  49:17 
I would like to see these kinds of arguments raised and adhered to these restrictions, First Amendment restrictions adhered to by a lot of people starting with lawyers and litigants, that I would like to make it easier for lawyers to raise First Amendment arguments. I'd like to encourage them to raise those arguments that they hadn't before. I think a lot of lawyers distraction as well. We're going to talk about the statute because, you know, I'm a lawyer who specializes in restraining orders. I'm not a First Amendment lawyer. So I'm just going to take for granted that the only defense I can raise is a statutory defense. I think it's important for people to know to raise the First Amendment Defense, and I hope my articles have gathered useful use precedents on the subject. And likewise, occasionally and not just occasionally, my sense is in a lot of these cases, litigants are not represented, especially the defendants, they don't have the money to hire a lawyer. So I'm hoping that at least they could say, oh, you know, there's this article truths by a law professor. It's got these weird citations. But but you know, maybe I can find something helpful there. Then, of course, I hope the judges pay attention to this, too, whether lawyers raised this or whether they themselves say wait, wait a minute, can I really enjoying somebody from saying things about this other person? Oh, there's this distinction between speech to a person and speech about a person that might make sense that might explain kind of why it is some things are punishable, harassment, and some things are not. And here's this article, which actually gives me some relevant onpoint citations, maybe in my jurisdiction, maybe in other jurisdictions, so I cite a bunch of cases from DC courts from Florida courts from Illinois from Ohio, but a lot of states don't have appellate decisions on the subject within within that state. Judges could, of course, view out of state precedent as persuasive. But they may not know about it. I'm hoping the article will make that clear. I'm also hoping indeed, that legislatures will say, Well, wait a minute, when we try to ban this speech, this is a first door authorized judges to benefit this is something which the First Amendment speaks. Let's see if we can define the rules narrowly and clearly. And headed, you know, I'm not expecting every legislator who does anything about this to actually to, to read my article or to hear or ask a staffer to read my article or to agree with it if indeed, the article is read. But I'm hoping that on the margin, some people say, Oh, interesting that that makes sense. That's a that this is this is an area where really there are important First Amendment constraints that I should be paying attention to.

Tim Kowal  51:57 
I'm glad you answered my question without answering with a third option that I didn't offer I offered legislature and judges but you your answer was, it starts with the lawyers and litigants to spot these issues in these restraining order cases. You know, I know Jeff, and I get a lot of calls from, from people who have just gotten a restraining order against them, and they want to pick it up on appeal. And it's a real tough, uphill slog. But if, if maybe we could, we'll put in the show notes. And maybe we can end here with with just a short list of the things that we should look out for that all lawyers who get calls from litigants who just had a big fat restraining order against them that that quashes their free speech rights, what things we should look for, you mentioned, look for that, that distinction between a speech to a person and a speech about a person if that if the restraining order says you can't just you can't speak to the person. Well, okay, not not that big of a First Amendment issue. But if it just says you can't say anything about that person, that's a big First Amendment issue that may be right for a challenge. And maybe probably a difference between if the restraining order is limited in time, versus that the example that you lead out with in your article proposal, Professor Volek is about a permanent injunction of speech about a person. So that I assume would be would be a very persuasive challenge on appeal. What are some other things on the short list of things that attorneys should look for when they get a call from someone who got just got hit with a restraining order? And they're looking for? Well, maybe, maybe I take this up on a flyer because it's got some good First Amendment legs to it. Right.

Eugene Volokh  53:31  
So I do think the speech to a person unwanted speech to a person versus an unwanted speech about is a very important distinction. Of course, another thing that's important is the precedent. So for example, there's a Supreme Court case organization for better Austin versus Keith, I think, from 1971, which struck down an injunction that was aimed at protecting the plaintiffs business, which was threatened by people essentially, sharply criticizing him and leaflets, you know, that's not a very well known precedent. It's not like New York Times we solve it. So pay attention to precedents like that. And again, my the two articles that we've been talking about, both go into a good deal of detail on that. Another thing to keep in mind, which I think most lawyers are aware of many litigants are not is in many states, probably most states and in the federal system, once the injunctions issued against you, you can appeal it, you can try to get it vacated, but you can just violate it. And then and then make a First Amendment argument least you can't reliably violated make a First Amendment argument when you're prosecuted for contempt, or when there was an action against you for civil contempt. So I do think it's important to tell people look, it's kind of use it or lose it. You have to either appeal this injunction or try to get it to set aside now where you're going to be stuck with it, at least in many jurisdictions. The flip side is in some jurisdictions, if somebody is being prosecuted for criminal contempt for violating an order, or if there's a civil contempt citation being issued against him Some jurisdictions, you actually can raise the unconstitutionality of the injunction. My own California is one such this is lawyers, of course, no, this is the collateral bar rule in most states. And in the federal system, there's the collateral bar rule, which says, You can't raise the unconstitutionality of an injunction in a contempt proceeding. But some states like California reject that collateral bar. So I think that's, that's worth keeping in mind. Another thing worth keeping in mind, which we didn't talk about at all, but I should throw it out there is restrictions on Second Amendment rights. Right now, the supreme court is deciding whether it's consistent with the Second Amendment forbid gun ownership by people who are subjected to a restraining order. That's based on some evidence of violence or threat of violence. But I've seen in a lot of places, courts just routinely issue these restraining orders with the firearms restriction, even when the only allegations were oh, this person has been bad mouthing me online or maybe defaming me online or some such, or even sending me unpleasant rude messages, you should be prepared to say, look, whatever the proper scope of the restriction in the speeches, you can't restrict firearms possession, absent some evidence of actual actual violence by the person. So I think these are all things to all things to keep in mind. I mean, ultimately, of course, ultimately, it's up to the judge, although then court or appellate judges, but ultimately, it is a matter of having lawyers who know what's going on know what the precedents are setting the precedents, effectively arguing them. Regrettably, a lot of lawyers aren't knowledgeable, but even many more litigants just can't afford a lawyer. That's a very serious problem.

Tim Kowal  56:41  
Yeah. All right. Professor Volokh, thank you so much for your time we learned a lot. We're going to put the link to your article or both of your articles, especially when we talked about today. overbroad injunctions against speech, especially in libel and harassment cases, we'll put that in the show notes so that listeners can find a link to it and read it so that they can spot the issues, the First Amendment issues in restraining orders involved in their cases. And Jeff, that's going to wrap up our episode. We want to thank again casetext for sponsoring our podcast each week, we include links to the cases we discussed, and we use casetext's daily updated database of case law statutes, regulations, codes, and more listeners of the podcast will enjoy a special discount on casetext's basic research when they visit That's Right, and

Jeff Lewis  57:26  
if you have suggestions for future episodes, please email us or send us a mimeograph at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. All right,

Tim Kowal  57:38  
thanks. See you next time.

Announcer  57:39 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.