Court Orders Blog Taken Completely Offline For 'Harassing' Posts
from the does-that-meet-first-amendment-scrutiny dept
The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO (harassment restraining order) regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.I think Goldman underplays the problems here. I think we all agree that what Arlotta did was ridiculous, creepy and vindictive. But that doesn't mean it's not protected under the First Amendment. As Goldman notes, there were ways to stop Arlotta's conduct without taking away his First Amendment rights and carving out an exception to the First Amendment for being a jerk. I think this ruling is really questionable.
Goldman also highlights the consequences of such a bizarre and comprehensive ruling against Arlotta:
This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).Of course, I'm not sure a judge would see it that way. That's part of the problem with this ruling. Clearly, the court was troubled by what Arlotta did, and found a way to stop him. So if he were to do as Goldman describes above, I wouldn't be surprised to see them merely assume that it was more of the same, and continue to block his speech. And that brings up one of the clear problems of the ruling. Could you really be barred completely from publicly speaking about an ex because you once harassed her?