Cyber stalking is a real problem facing many victims of domestic violence and others. When a tech-savvy person takes his or her complaints against you online it can cause embarrassment, shame, and even real fear. But are words enough to seek a personal protection order? Can you get a PPO against Facebook posts or other social media use?
Michigan Court Takes On Cyber-Stalking
This blog post reviews TM v MZ, a Michigan Court of Appeals opinion released October 23, 2018 that weighed cyber-stalking against First Amendment free speech. The case was between neighbors with a history of bad blood. The petitioner (person requesting the PPO) had participated in recall efforts to remove the respondent (the person subject to the PPO) as a local township trustee. The respondent’s mother also had a past PPO against the petitioner’s husband based on assault claims.
This history of traded PPOs often happens in non-family stalking cases. Before anyone seeks a personal protection order, both sides often raise complaints with their local government, including the police. Often the allegations go both ways as tensions between the neighbors escalate.
When the petitioner TM requested a PPO on July 20, 2015, she said the matter had already been going on for a year. Now, the respondent MZ had turned to Facebook “for the purposes of terrorizing, frightening, intimidating, threatening, or harassing me.”
Can PPOs Prevent Cyber-Stalking?
A personal protection order is designed to interrupt a pattern of harassment or intimidation by preventing (enjoining) the respondent from taking actions that qualify as stalking under Michigan criminal law. That can include prohibiting the respondent from contacting the petitioner using social media, or posting in places the respondent has reason to believe the petitioner will see. These protections can put an end to harassing phone calls, emails, and Facebook messages, as well as preventing the respondent from posting on the petitioner’s wall or in groups they share in common.
If the respondent posts somewhere he or she is not supposed to according to the PPO it can result in criminal charges for PPO violation. Depending on the circumstances, that means the respondent could go to jail for stalking the petitioner online.
Cyber-Stalking and Free Speech
The question in TM v MZ wasn’t whether the court could prevent future cyber-stalking, it was whether posts on Facebook were enough to warrant an PPO in the first place. In deciding whether the court could enter the personal protection order, the Court of Appeals had to weigh the effect of the respondent’s “inappropriate, crude, and offensive language” against his First Amendment right to Free Speech.
The First Amendment protects any person’s right to speak freely in public venues (including on social media). While Facebook posts may be deleted by the company or the owner of a particular page because they are offensive, the government can’t prevent a person from speaking just because “the idea itself is offensive or disagreeable.” Generally, the government may not regulate the content of speech (what is said) unless the speech falls into an “unprotected” category:
- Libel or defamation (false statements that cause injury or economic harm)
- Fighting words (abusive language likely to cause a violent reaction)
- Inciting or producing imminent lawless actions (prompting someone to take illegal action)
- True threats (an expression of an intent to do violence to a particular person or group)
The court of appeals determined that the offensive Facebok posts did not qualify as fighting words, inciting illegal actions, or a true threat against the petitioner. It said the trial court hadn’t determined whether the statements made by the respondent were false, so it could not determine if the speech was unprotected defamation. The court therefore said that, in this case, the respondent’s Facebook posts were free speech, not cyber-stalking, and a PPO was inappropriate.
When Cyber-Stalking Can Create a PPO
This Court of Appeals decision doesn’t mean you can never get a PPO to prevent cyber-stalking. If the content of the speech on Facebook, Twitter, or other social media accounts are designed to encourage illegal activity (i.e. “someone should beat her up”) or amount to a threat (i.e. “I’m going to beat her up”), they can be the basis for a personal protection order. Fighting words are less likely because any violent response is tempered by the fact that the statement is made online, so you aren’t able to react violently before having a chance to cool off.
You may also be able to base a PPO on false statements made about you online. However, to do so, you will need to be able to show that the statements were, in fact false. You should also be prepared to show how the false statements have hurt you or your reputation.
Cyber-stalking is a particularly vicious form of domestic violence that can spring up in the course of a divorce or other separation. It can make victims feel vulnerable and unsafe, and can sometimes escalate to real danger or physical violence. But there are ways to fight back. Even if a court can’t grant a PPO because the statements are protected Free Speech, you may still be able to file criminal charges for the behavior. When the speech is paired with other conduct or behavior, a PPO can keep your abuser from targeting you online.
Lisa J. Schmidt is a family law attorney for Schmidt & Long, PLLC, in Ferndale, Michigan. She helps domestic violence survivors get out of abusive marriages. If you need help filing for divorce, contact Schmidt & Long today for a consultation.