In family law cases, courts can issue injunctions that curb your right to free speech, especially if children are involved but maybe not if you are insulting a lawyer. A recent case out of Michigan asks if the trial court can protect a divorce lawyer against threats from a dissatisfied former client.

Chilling Speech

A former husband was placed on probation after pleading no contest to two violations of a domestic violence injunction that prohibited him from contacting his ex-wife. As a condition of his probation, he was barred from engaging in “any assaultive, abusive, threatening, or intimidating behavior.”

While he was out on probation, the former husband violated his probation because of a series of e-mails he sent over the course of a month to his former attorney who represented him in his divorce and the injunction proceeding.

Cruelly, he called his former lawyer a “pussy” and a “negligent piece of shit,” accusing him of “ignor[ing] child abuse” and owing the former husband money, and finished with a: “Fuck you.”

In his later e-mails, he copied various other people, including the county prosecutor, and referred to his former lawyer as a “fraud” and a “twat,” accused him of breaking the law, and even accused the presiding judge of ignoring evidence of child abuse and parental alienation.

Some of the e-mails included photos, such as a photo of the presiding judge and his family at a judicial investiture and another of the former husband’s children, edited to appear as though they were in a jail cell.

The former lawyer reported the emails to the probation officer, who filed a warrant request alleging a technical probation violation for his “threatening/intimidating behavior”. At the probation violation hearing, the former lawyer testified that the e-mails made him fear for his safety.  He also testified about several telephone calls in which he allegedly threatened him, although he could not recall the substance of those threats.

After the presentation of evidence, the former husband argued that the e-mails were constitutionally protected speech.  The trial court disagreed, finding that he intended to threaten and intimidate his former lawyer, and the speech was not protected under the First Amendment because the language in his e-mails constituted fighting words.  He appeals.

Florida Speech Restrictions to Protect Against Violence

I have written about speech, domestic violence in family law cases before. To state a cause of action for protection against domestic violence in Florida, you must allege sufficient facts demonstrating that you are a victim of domestic violence or have reasonable cause to believe you are in imminent danger of becoming a victim. Domestic violence means, in part, any assault, battery, or any criminal offense resulting in physical injury of one family or household member by another family or household member.

An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance. Fighting words, or words that would tend to incite an immediate breach of the peace could be actionable but it would depend on the circumstances.

Muffled in the Mitten State

On appeal, the former husband complained the trial court violated his First Amendment rights by finding him guilty of a probation violation based on constitutionally protected speech.

Under the Constitution, protected speech under the First Amendment includes expressions or ideas that the overwhelming majority of people might find distasteful or discomforting.” However, the right to speak freely is not absolute.”

States may restrict certain categories of speech that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Here, the trial court erred in concluding that the former husband’s speech was not protected by the First Amendment because it was threatening in nature.

The right to free speech does not extend to “true threats,” which are defined as statements in which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.  Excluded from this category are jests, hyperbole, or other statements whose context indicates no real possibility that violence will follow.

To establish a true threat, the State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence. The true-threat exception to the First Amendment encompasses only physical threats, and our Supreme Court explicitly declined to extend the exception to encompass nonphysical threats.

The trial court should have assessed whether the former husband intended to communicate a serious expression of an intent to commit an act of unlawful violence against the lawyer or whether the purported threats were physical.

Although his e-mails were offensive and inappropriate, they did not express an intent to commit an act of unlawful physical violence.  Accordingly, his speech did not fall within the true-threat exception to the First Amendment. The emails were also not “fighting words,” personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.

Generally, speech made over the Internet, far removed from any potential violence, is not considered to be inherently likely to provoke a violent reaction. Although the former husband’s language might provoke violence if delivered in person, the fact that it was communicated via e-mail, far removed from any potential violence, renders it unlikely to provoke a violent reaction.

The opinion is here.