Facts: Woman works as a Legal Aid staff attorney representing domestic-violence victims.
Man is an occupational therapist with PhD’s from both Oxford and Cambridge in England.
In 2013, Man’s ex-girlfriend sought an order of protection against him. Woman was a fact witness who briefly testified in the hearing. The order of protection was denied.
Eight months later, Woman learned that Man posted photographs and videos about her on Facebook, one of which was titled, “Arrest this BLACK MAN BECAUSE HE”S BLACK. MY PROSECUTION BY AN #ANGRYBLACKWOMAN — ESQ [MS. WOMAN].” Another video contained a caption stating that Woman lied and “used Racial Codes on the stand” that would make the KKK smile and honor her as the grand wizard.
In the lengthy videos, Man ranted about his experience with Woman and spoke directly to her, stating things like:
For you as a black woman, you should know better. You should have your mind checked out. . . . You should be ashamed of yourself, [Woman’s first and middle name]. I didn’t know your name then. I know it now.
Man said in the video he initially thought Woman was beautiful and elegant but that he no longer did. He said he hoped that one day he could forgive her, but he also compared her actions to someone going to war with chemical weapons and said, “that’s not acceptable, you’ll be held responsible.”
Woman sent a private message to Man asking him to remove her photographs from his Facebook posts. He did not do so.
Five days later, Woman sued Man for defamation. The court entered a Temporary Restraining Order prohibiting Man from posting Woman’s name or pictures online, contacting her, or coming around her.
Shortly thereafter, Man posted a lengthy message on his Facebook page that said, in part:
Hey Yee Lord, Judge in the chamber wearing the black hood looking all important, comes he before yee this scholarly defendant named Steele Balz. He seek[s] to dismiss and throw away this docket into the trash where the pigs reside. . . . [W]e are watching you judge.
Man continued to post additional pictures of Woman juxtaposed beside pictures of his ex-girlfriend.
There is more, but you get the idea.
The final straw came when
Steele Ballz Man was seen in the employee parking lot where Woman worked leaning against his vehicle smoking a cigar.
Woman promptly petitioned for an order of protection alleging that Man was stalking her. An ex parte order of protection was granted.
Among other notable events, Man threatened to file a board complaint against the judge and moved that she recuse herself on the grounds that she was biased against Facebook users and non-attorneys.
The order of protection hearing involved testimony from 11 witnesses over two days.
The trial court found that Man was stalking and harassing Woman. The order of protection was granted, and Woman was awarded part of her attorney’s fees.
On Appeal: The Court of Appeals affirmed the trial court.
Man first argued that his Facebook posts and videos cannot constitute “contact” within the statutory definition of stalking because they were not posted on Woman’s Facebook page.
Tennessee Code Annotated § 39-17-315(a)(4) defines “stalking” as “a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested.”
Tennessee Code Annotated § 39-17-315(a)(3) defines “harassment” as conduct directed toward a victim that includes, but is not limited to, repeated or continuing unconsented contact that would cause a reasonable person to suffer emotional distress, and that actually causes the victim to suffer emotional distress.” “Unconsented contact” is defined to include “sending mail or electronic communications to that person.”
The judges on the Court of Appeals were probably “wearing the black hood looking all important” when they unanimously rejected Man’s argument:
We conclude that [Man]’s Facebook “rants” to [Woman] fall within the definition of “unconsented contact,” in the form of “electronic communications” to her that were initiated without her consent and continued in disregard of her expressed desire that the contact be discontinued. In his video posts, [Man] spoke directly to [Woman]. . . . [Man] posts were publicly available, and [Woman] viewed them, as [Man] intended. It does not matter that [Man] posted the messages publicly to his own page rather than on [Woman]’s page. The fact remains that it was “unconsented contact” within the meaning of the statute.
Man then argued that his Facebook posts were merely “rants” that are constitutionally protected free speech.
Both Tennessee and federal law are clear that free speech does not include the right to cause substantial emotional distress by harassment or intimidation. One’s right to free speech is permissibly subordinated to another’s right to be free of repetitive, unwanted verbal and nonverbal communications that are likely to instill in the other a reasonable fear of harm.
The Court concluded Man’s communications were not protected free speech:
Here, [Man]’s repeated video and written postings to and about [Woman] were part of his course of conduct of stalking. His repeated posts were clearly meant to harass, degrade, intimidate, threaten, and humiliate [Woman], and they had the desired effect of causing her fear and emotional distress. This was not protected free speech that was exempt from the stalking statute’s definition of harassment.
Thus, the trial court’s order of protection was affirmed, and the case remanded for the trial court to determine a reasonable award to Woman for her attorney’s fees and costs incurred on appeal.
K.O.’s Comment: (1) The trial judge in the order of protection matter was also assigned to preside over the pending defamation lawsuit. The defamation claim had not been tried by the time the trial judge retired. In her final order, the trial judge wrote in reference to the defamation case, “It is this Court’s fervent hope that she will be in a distant state or country when this matter goes to trial.” In other words, “Sayanora, suckers!”
(2) At the time of the trial, Tennessee Code Annotated § 39-17-315(a)(1) defined “course of conduct” as a pattern of conduct composed of any series of two (2) or more separate non-continuous acts evidencing a continuity of purpose.”
Effective July 1, 2016, the statute was amended to add that the definition includes, but is not limited to, “acts in which the defendant directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to a person, or interferes with a person’s property[.]”