Supreme Court rules lewd, threatening posts amount to stalking, not free speech 


Monitor staff

Published: 07-01-2023 6:43 PM

A man who said the First Amendment protected his online comments about his sexual interest in a woman and his hope that she’d be raped and shot, including posting digital images depicting her being violently assaulted, was guilty of stalking her, the state Supreme Court ruled.

The man, who was not identified in the ruling, appealed a protective order granted in 2022 preventing him from posting anything online about the woman.

“The appeal presents a question of pressing public interest about the extent to which the First Amendment places limits on the scope of a protective order restricting a defendant’s online activity,” the court said.

The man’s hyper-fixation on her began in the winter of 2017, when he began frequently posting online about her, including posting graphic portrayals of violence against her on various social media sites including Instagram, Twitter and Deviant Art. The man also created a fake dating profile using the woman’s name and real photos as well as publicly listing her address and other personal information, according to court documents.

The New Hampshire Supreme Court ruled on Thursday that the violent images and comments posted online were not protected under the First Amendment since they communicated an intent to commit violence. Furthermore, the lower court was correct to grant the civil stalking protection order banning his online comments, even though there was no evidence he was coming physically near the woman because it served a narrow state interest.

“The compelling state interest at issue in this case is the protection of the plaintiff from abuse,” the justices wrote. “As the language of the statute itself makes clear, RSA 633:3-a was enacted to protect innocent citizens from a course of conduct that would cause a reasonable person to fear for his or her personal safety, or the safety of a member of that person’s immediate family.”

The ruling was applauded by organizations that work with domestic violence victims.

“The New Hampshire Supreme Court made a strong statement today by affirming that protecting victims from abuse is a compelling state interest and we couldn’t agree more,” said Amanda Grady Sexton, director of public affairs for the New Hampshire Coalition Against Domestic and Sexual Violence. “Stalking is a pattern of behavior that places victims in a constant state of terror and apprehension. Victims in our state deserve to live free from abuse.”

Article continues after...

Yesterday's Most Read Articles

The coalition argued on behalf of the woman in the case, saying victims of stalking face an increased risk of lethality and death.

“Victims already face barriers to get protection in both criminal and civil actions,” wrote Attorney Joshua Gordon, who represented the coalition. “We respectfully suggest that the court affirm the ruling of the court below, which protects victims from additional harm.”

The man and the woman first met each other in high school but did not have an intimate or even platonic relationship, the woman testified in 2022 when trying to get the protective order. In the winter of 2017, the man began posting obscene photos and comments about her on social media.

In issuing the protective order, the court found that the man had stalked the woman by posting online comments about watching her and being sexually aroused, desiring that she be raped or shot, and creating animated models resembling the woman that depicted her being stabbed and choked. He also created a fake dating profile using the woman’s name and photos, according to court documents.

The original ruling was reinforced by the NH Supreme Court on Thursday.

While content-based restriction of the First Amendment is unconstitutional, the state Supreme Court pointed out that it is “well understood that the right of free speech is not absolute at all times and under all circumstances.”

Those circumstances include obscenity, defamation, speech integral to criminal conduct, so-called fighting words, child pornography, fraud, true threats and speech presenting a grave and imminent threat the government has the power to prevent.

The court found that the online postings contained true threats, which are not protected speech and the author of the posts “communicated a serious expression of an intent to commit an act of unlawful violence to a particular individual.”

The American Civil Liberties Union, which does not condone the man’s abhorrent conduct, argued that the court’s final protection order prohibiting him from discussing the woman anywhere online was overly broad. It would also limit him from hypothetically discussing her candidacy on social media if she were to run for office.

As a result, the ACLU suggested the final protection order be remanded for the court to issue a more narrowly tailored remedy, which was denied by the court.

Between 2018 and 2021 alone, crisis centers across the state answered more than 260,000 calls and supported nearly 2,000 adults and children for a total of 161,474 nights in a shelter. In the first six months of the pandemic alone, there was an overall increase of 24% for children and adults in need of emergency shelter and a 63% increase in calls made to helplines.

Legal services for victims of domestic violence and stalking will soon be getting a boost across the state.

As part of the state budget passed earlier this month, the state allocated an additional $750,000 in funding to New Hampshire Legal Assistance to expand representation for victims and survivors in protective order and family law cases.

Though the Supreme Courts ruling is a small victory, the work will continue to represent and support victims and advocates.

“NHLA is pleased with the NH Supreme Court’s ruling; it properly balanced the state’s interest to protect victims from online stalking behavior with an individual’s free speech rights,” said Attorney Mary Krueger. “This decision will allow courts to issue orders preventing stalking violence online without running afoul of a defendant’s free  speech rights.”