War Of Words Between Anti-Vaxxers Results In An Unconstitutional Gag Order

Free Speech

from the even-assholes-have-rights dept

Eugene Volokh, the EFF, and several members of First Amendment Clinic students and professors have filed a brief in a case involving an unconstitutional and apparently permanent injunction against an anti-vaxxer. Oddly enough, this injunction is the result of a civil action brought by another anti-vaccination activist. The details leading up to this “shut up” order are a bit convoluted (and explained in full at the Volokh Conspiracy) but the short version is this:

Anti-vaccination activist Kimberly McCauley blogs about her efforts and experiences. This includes frequent mentions of her daughter, who is now apparently being harmed by the state’s vaccination requirements for students.

McCauley sued Matthew Phillips, a lawyer and another anti-vaccination activist. Apparently, Phillips believes McCauley isn’t as anti-vaccination as she could be and has criticized her on Facebook. Phillips has also mentioned McCauley’s daughter in his posts, but McCauley has put her daughter front-and-center in her anti-vaccination crusade.

While there is little doubt Phillips posts are antagonistic and filled with ridiculous conspiracy theories (the words “crisis actor” have been thrown around, along with accusations of shilling for pharmaceutical companies), it would appear the bulk of what he’s posted is still protected speech. McCauley’s full complaint can be read here and it details some disturbing trolling efforts by Phillips. This forms the basis of her request for a civil restraining order [PDF], which was granted, but demands nothing more than Phillips’ silence on the subject of McCauley in perpetuity.

The trial court ordered Todd Phillips not to “post photographs, videos, or information about [Kimberly McCauley] to any internet site and to remove the same from any internet site over which he has access or control.”

This is overbroad and a clear violation of the First Amendment, as Volokh argues in the brief [PDF]. It points out speech can be restricted for a handful of reasons, but this short order does more than deter future harassment. It effectively forbids Phillips from discussing any of his anti-vaccination efforts if they happen to include past (or future!) interactions with McCauley.

To be sure, there are some narrow categories of speech that can be restricted, such as libel and true threats of criminal conduct. And unwanted speech to a particular person can be restricted, which is why telephone harassment laws, for instance, are constitutional. But there is no general exception for opinions and accurate factual claims about a particular person. The injunction is thus an unconstitutional prior restraint.

This would be so even if the injunction simply suppressed purely personal criticisms; but here, the injunction is broad enough to cover a wide range of political advocacy as well, such as:

Phillips’ writing a blog post that criticizes McCauley for her stance on vaccination laws, since any such criticism would necessarily include some “information about” McCauley.

Phillips’ creating a Facebook page for a political campaign that advertises his commitment to anti-vaccination principles by recounting his past exchanges with McCauley.

Phillips’ Tweeting about McCauley as an example of an anti-vaccination activist who has supposedly endangered her family through vaccination.

Phillips’ criticizing McCauley on a Facebook page for seeking this injunction.

Phillips’ criticizing the injunction online for preventing his speaking about McCauley, since such criticism would likewise have to include some information about McCauley.

Phillips’ posting on an anti-vaccination message board that he is subject to this order, and explaining McCauley’s rationale for getting the order, as a way of warning others about the possible consequences of their speech.

As is noted in the brief, speech that’s unpleasant to the target isn’t one of the narrow categories exempted from First Amendment protections. If McCauley finds statements libelous, she’s welcome to sue. If she feels the speech constitutes criminal harassment, she can look to law enforcement for solutions. But what the court should not do is engage in prior restraint, simply because the speech appears to have disturbed the person bringing the complaint.

The brief cites prior Supreme Court decisions upholding speech deployed to ostracize others or coerce people into actions via public shaming. This has been held to be protected even if the target of the speech is a private individual.

Likewise, the inclusion of a minor does not automatically deprive it of First Amendment protections. Certain speech about minors is outside Constitutional coverage (child porn, sexually-themed speech directed at a minor), but what’s covered here doesn’t fall into any of these exceptions. The brief notes several state courts have struck down cyberbullying laws, finding the restrictions enacted to be unconstitutional, even when this speech is directed at minors.

As Volokh sums up, the order expands past the margins of First Amendment exceptions to effectively silence a citizen engaged in subject of great interest to many members of the public.

The injunction in this case bars Phillips from talking about McCauley, his political adversary, in the context of a heated debate on a public matter. It limits his ability to publicly explain his disagreement with her. It limits his ability to argue that she ought not be trusted. Indeed, it even limits his ability to condemn the injunction itself and her role in asking for this injunction.

This isn’t about making sure unpleasant people with shitty debate skills can use Facebook to spread both ignorance and hate. It’s about the fact our nation’s free speech protections cover a whole lot of unpalatable speech. When courts blow calls on the First Amendment, bad things happen. They’re not excusable just because they happened to bad people.

Filed Under: anti-vaccer, injunction, kimberly mccauley, matthew phillips, prior restraint, vaccinations