Facebook ‘Tagging’ Violated PPO: Not Constitutionally Protected Speech

The trial court properly held the defendant in criminal contempt for violating a personal protection order (PPO) because he “tagged” the plaintiff in a Facebook post, the Michigan Court of Appeals has ruled in a published and binding opinion.

The Court of Appeals also rejected the defendant’s argument that the PPO issued against him violated his constitutional right to free speech.

In ARM v KJL (Docket Nos. 357120, 358858 and 358859), there was sufficient evidence that the defendant (KJL) wrote the Facebook post because he tagged the plaintiff (ARM) in the post, the Court of Appeals explained. “By tagging ARM, the author of the comment [the defendant] ensured that ARM would be sent a notification about the comment. Thus, the Facebook tag was a means of contacting ARM.”

Regarding the defendant’s free-speech argument, “a person’s right to free speech must be understood in light of another person’s interest in being left alone,” the Court of Appeals said. “[H]ad KJL made the post about ARM without applying a tag, the post likely would have been protected speech.”

Judge Brock A. Swartzle wrote the opinion, joined by Judges Colleen A. O’Brien and Thomas C. Cameron.

Background

The plaintiff and the defendant have a child together. Based on allegations of mental and physical domestic violence, the plaintiff obtained a PPO against the defendant in 2015. That PPO lapsed in March 2016. The plaintiff then sought another PPO, claiming the defendant made repeated unwanted contacts with her, her friends and her family on social media.

The St. Clair County Circuit Court entered a second PPO on March 31, 2016, without a hearing. Among other prohibitions, the PPO barred the defendant from stalking the plaintiff as defined in MCL 750.411h and 750.411i. That order was subsequently amended to allow contact during parenting-time exchanges.

The trial court subsequently denied the defendant’s motion to terminate the PPO. At the time, the defendant did not assert that the PPO violated his right to free speech and he did not appeal.

In 2019, the plaintiff filed a show-cause motion, alleging the defendant used a Facebook profile with the name of his deceased father (KW) to speak directly to her, speak about her with other people, tag her in posts, share photos and posts from her old Facebook account, and post an order from their custody case that included her address. The plaintiff claimed the defendant’s conduct violated the PPO.

The St. Clair County Circuit Court held an evidentiary hearing and issued a written opinion and order. Among other things, the trial court found that the defendant was responsible for the Facebook posts made from KW’s profile because he either directly posted the comments or indirectly posted them in coordination with others. The trial court ruled that one post made by the defendant violated the PPO because it tagged the plaintiff. That post said: “All while the mother [referring to ARM] who has never made an issue out of his [referring to KJL] charges. The drug charge was a medical marijuana charge that he took so that the mother didn’t get in trouble. Ask [ARM].”

The trial court concluded the defendant’s conduct caused the plaintiff to feel harassed and emotionally distressed. The trial court further observed that the defendant’s behavior was part of an “ongoing course of conduct” spanning several years and the Facebook post was not a limited, one-time contact with the plaintiff. Accordingly, the trial court found the defendant guilty of violating the 2016 PPO for the tagged comment.  

The defendant appealed.

Tagging Is ‘Contact’

The defendant first argued on appeal that the trial court wrongly found that he violated the 2016 PPO.

“In KJL’s view, the prosecutor had waived any claim of violation based on information found in pages one to seven of Exhibit A, which included the sole offending Facebook post,” the Court of Appeals wrote. “When the entire transcript is considered, it is clear that there was, in fact, no waiver by the prosecutor. … By affirmatively consenting to Exhibit A’s admission into evidence, KJL waived any objection to the trial court’s reliance on that evidence.”

The defendant also claimed there was insufficient evidence that he wrote the offending Facebook post. “Critical to the trial court’s contempt conviction was the fact that ARM was directly tagged in the Facebook comment on page seven of Exhibit A,” the Court of Appeals said. “By tagging ARM, the author of the comment ensured that ARM would be sent a notification about the comment. Thus, the Facebook tag was a means of contacting ARM. This Court and others have found that such tags, posts, and similar means of electronic communication (e.g., email, text) are ‘contacts’ between the sender and recipient.”

Further, “[a]s the trial court … observed, the ease of the conversations suggested that this sort of coordination was common practice,” the Court of Appeals noted.

“Based on our review of the record,” the Court of Appeals said, “we conclude that there was sufficient evidence supporting the trial court’s factual finding that KJL was responsible for making the offending post.”

No Free-Speech Violation

The defendant also argued the 2016 PPO violated his constitutional right to free speech.

The Court of Appeals disagreed.

“First, the time for directly attacking the 2016 PPO has passed,” the Court of Appeals observed. “KJL first moved to terminate the PPO in April 2016, but he did not raise a constitutional challenge [at that time]. … KJL’s current appeal involving the trial court’s conviction and sentence of him under the 2016 PPO is ‘a second proceeding’ with respect to the trial court’s earlier denial of his motion to terminate that PPO. Thus, KJL’s claim in this appeal is a collateral attack on the 2016 PPO, and for this reason alone, the claim fails.”

In addition, the defendant’s attempt to “skirt” the collateral-attack rule was without merit, the Court of Appeals explained. “KJL concedes that his constitutional claim is a collateral attack on the 2016 PPO, but he tries to bypass the bar by relying on the so-called ‘transparently invalid’ exception recognized by the U.S. Court of Appeals for the First Circuit in In re Providence Journal Co, 820 F2d 1342, 1344 (CA 1, 1986) (Providence I). This Court, of course, is not bound by the decision of federal courts other than the U.S. Supreme Court. … No Michigan appellate court has cited or accepted the exception to the collateral-attack rule announced in Providence I, and we decline to do so. More importantly, the original opinion in Providence I was modified on rehearing to require the enjoined party to make a good-faith effort to seek emergency appellate relief before opting to disregard the offending order on its own initiative. In re Providence Journal Co (On Rehearing), 820 F2d 1354, 1355 (CA 1, 1987) (Providence II). KJL does not acknowledge this modification of the rule announced in Providence II or suggest that he sought and was unable to secure timely appellate relief. Accordingly, even on its own terms, Providence I does not support KJL’s position on appeal.”

Moreover, “even if we were to reach the merits, the 2016 PPO was not transparently invalid,” the Court of Appeals emphasized. “The order prohibited KJL from, among other things, stalking ARM as defined by MCL 750.411h and MCL 750.411i. The statute specifically exempts ‘constitutionally protected activity’ from the scope of harassment that can constitute stalking. … There is no language in the order that could, on its face, be construed as a prior restraint.”

According to the Court of Appeals, “[t]o the extent KJL also challenges on First-Amendment grounds the trial court’s conclusion that KJL violated the PPO, we find his position similarly unpersuasive. … While a person subject to a PPO does not give up the constitutional right to free speech merely by being subject to an order, ‘the right to speak freely is not absolute.’ … Relevant here, a person’s right to free speech must be understood in light of another person’s interest in being left alone.”

The trial court “agreed in large part with KJL” and held that most of his Facebook posts were protected speech, the Court of Appeals pointed out. “It did, however, conclude that the post on page seven of Exhibit A was not protected speech because the post involved direct contact with ARM. That is, by tagging ARM, thereby ensuring that she would receive notification of the post, KJL effectively contacted ARM and violated ARM’s right to be left alone, as embodied by the PPO. The violation of the PPO did not result from the content of the post - rather, the violation resulted from the tagged contact. Thus, had KJL made the post about ARM without applying a tag, the post likely would have been protected speech. And, while the contact, viewed in isolation, was not particularly alarming, this was not an isolated contact, as the trial court aptly observed, but instead was part of a lengthy series of unlawful conduct and contact by KJL that caused ongoing harm to ARM and others.”

Therefore, “because the trial court found KJL in contempt for electronically contacting ARM, rather than for the content of the speech he used to do so, the contempt finding did not violate KJL’s right to freedom of speech,” the Court of Appeals concluded.