MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 142
Docket: Oxf-15-587
Submitted
On Briefs: May 26, 2016
Decided: September 13, 2016
Panel: SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
GINA M. CHILDS
v.
ROBERT A. BALLOU JR.
SAUFLEY, C.J.
[¶1] Robert A. Ballou Jr. appeals from a judgment of the District Court
(South Paris, Carlson, J.) granting to Gina M. Childs a two-year extension of an
existing order of protection from abuse. See 19-A M.R.S. § 4007(2) (2015).
Although Ballou raises multiple issues, we discern no error and write only to
address his argument that the court-ordered restrictions on his
communications with Childs violate his First Amendment rights. We affirm
the judgment.
I. BACKGROUND
[¶2] Childs and Ballou were married in 2007, their son was born in
2008, and Childs filed for divorce in 2010. Childs sought a protection from
abuse order against Ballou in 2010 while the divorce was pending, and a
2
protection order was entered upon the parties’ agreement without a finding of
abuse. That order expired in 2012 after the divorce judgment had been
entered.
[¶3] On August 20, 2013, Childs filed a new complaint for protection
from abuse. The court entered an order, again by agreement of the parties
and without a finding of abuse. The 2013 order prohibited contact except by
email and only regarding their then five-year-old son, and allowed for
emergency contact only through an identified third party. The order was set
to expire on August 24, 2015.
[¶4] On August 11, 2015, Childs moved to extend the duration of the
2013 protection from abuse order. The court held a contested evidentiary
hearing and granted the extension. The court entered an order prohibiting
Ballou from “having any contact, direct or indirect,” with Childs and ordered
that rights of contact with respect to the child would be arranged and
facilitated through a third party. Ballou moved for findings of fact and
conclusions of law, see M.R. Civ. P. 52(a); and for the court to reconsider, alter,
or amend the judgment, see M.R. Civ. P. 59(e). In a written judgment, the court
3
denied Ballou’s post-judgment motions except to the extent that it made
additional factual findings.1
[¶5] The following facts found by the court are based on competent
evidence in the record. See Smith v. Hawthorne, 2002 ME 149, ¶ 15, 804 A.2d
1133. By 2013, Ballou was going to Childs’s home almost every day, even at
times when she had asked him not to do so. In July 2014, Childs reported to
law enforcement email messages from Ballou that she thought violated the
existing protection order. In some of those messages and in others that he
sent in 2013, Ballou discussed matters that did not relate to the child,2
including statements accusing Childs of seeing another man, mentioning his
previous request for “break-up sex,” and asking Childs to relax the protection
from abuse order. Ballou also began repeatedly requesting that law
enforcement officers conduct “well-being checks” regarding the child at
Childs’s home. In September 2014, Ballou was informed by the Sheriff’s Office
that it would no longer conduct such checks because Ballou was “looking for
1 Ballou was separately charged with domestic violence stalking and violating a protective
order. The charges were to be dismissed in twelve months if Ballou agreed to modify the protection
from abuse order to authorize contact through a third party only. The modification never occurred
for reasons that have not been explained.
2 The email messages that were admitted at trial were lengthy and combative, even to the extent
that they pertained to the child.
4
Law Enforcement to violate his protection order by reporting back on his
child, ex-wife’s home and her actions.”
[¶6] The court ultimately determined that the extension of the 2013
protection order was necessary because Childs’s reasons for seeking an order
in 2010 and 2013 still existed and caused her fear. This finding was
supported by evidence that, before the 2013 order was in place, Ballou would
send Childs hundreds of text messages within a single day and that he had
recently again been sending excessively long, combative, and frequent email
messages that were not exclusively about the child. The court found Ballou—
who at trial dismissed Childs’s safety concerns, claiming that she was
“preoccupied [with] how the public perceives her”—not to be credible in his
testimony or demeanor. The court further found that Ballou’s repeated
requests for well-being checks on the child amounted to stalking.
[¶7] Ballou timely appealed. See 14 M.R.S. § 1901 (2015); 19-A M.R.S.
§ 104 (2015); M.R. App. P. 2.
II. DISCUSSION
[¶8] Ballou argues that the extension of the protection from abuse
order violates his First Amendment rights by prohibiting communications that
are not threatening and are “at worst upsetting.” He further argues that he is
5
being penalized for exercising the right to petition for official action, which is
protected by the First Amendment.
[¶9] Neither at the hearing nor in connection with his post-judgment
motions did Ballou argue that the extension of the order would infringe on
any of his First Amendment rights. Accordingly, we review the issue only for
obvious error that “affects substantial rights or results in a substantial
injustice.” See In re Joshua B., 2001 ME 115, ¶ 10, 776 A.2d 1240 (quotation
marks omitted). “For obvious error to require reversal, the error must be
such as to deprive the party of a fair trial or to result in such a serious injustice
that, in good conscience, the judgment cannot be allowed to stand.” Id. ¶ 11.
[¶10] To address Ballou’s claim of a serious injustice, we turn to the
legislatively established process for the entry and extension of protection
orders. “A protective order or approved consent agreement is for a fixed
period not to exceed 2 years.” 19-A M.R.S. § 4007(2). At the expiration of that
two-year period, “the court may extend an order, upon motion of the plaintiff,
for such additional time as it determines necessary to protect the plaintiff . . .
from abuse.” Id.; see Gehrke v. Gehrke, 2015 ME 58, ¶ 17, 115 A.3d 1252. In
relevant part, “abuse” is defined to include, as between family or household
members such as former spouses, “[a]ttempting to place or placing another in
6
fear of bodily injury through any course of conduct, including, but not limited
to, threatening, harassing or tormenting behavior.” 19-A M.R.S. § 4002(1)(B)
(2015); see 19-A M.R.S. § 4002(4) (2015).
[¶11] Ballou’s appeal challenges the court’s application of this statute
as a violation of the First Amendment. We review the jurisprudence regarding
the First Amendment as it pertains to harassing or abusive speech, and then
review the court’s application of the protection from abuse statute.
A. The First Amendment, Prior Restraint, and Conduct that Includes
Harassing or Abusive Speech
[¶12] Both the United States Constitution and the Maine Constitution
place great value on the freedom of speech. “Congress shall make no law . . .
abridging the freedom of speech . . . .” U.S. Const. amend. I. “Every citizen may
freely speak, write and publish sentiments on any subject, being responsible
for the abuse of this liberty . . . .” Me. Const. art. I, § 4.
[¶13] We do not question the importance of this right. “Freedom of
speech . . . , which [is] protected by the First Amendment from infringement by
Congress, [is] among the fundamental personal rights and liberties which are
protected by the Fourteenth Amendment from invasion by state action.”
7
Chaplinsky v. New Hampshire, 315 U.S. 568, 570-71 (1942) (quotation marks
omitted).3
[¶14] The constitutional right to freedom of speech, however, as with
similarly protected rights, is not absolute. “[N]ot all classes of speech are
subject to first amendment protection,” State v. Cropley, 544 A.2d 302, 304
(Me. 1988); see also Schutz v. Schutz, 522 So. 2d 874, 875 (Fla. Dist. Ct. App.
1988), and the right of free speech “is not absolute at all times and under all
circumstances,” Chaplinsky, 315 U.S. at 571. “The First Amendment . . . is not
an impenetrable shield which protects any speech or conduct, whatsoever,
with disregard to its harm and effect.” State v. Whitesell, 13 P.3d 887, 900
(Kan. 2000).
[¶15] The use of speech as part of conduct designed to threaten or
harm other individuals will not find protection in either the Maine or the
federal constitution. “Despite our First Amendment rights, we are not free to
harm others under the guise of free speech.” Id. at 900-01; see generally
Galloway v. State, 781 A.2d 851, 857-80 (Md. 2001).
[¶16] Accordingly, the relevant question is whether a court that enters
an order restraining speech has restrained a person from engaging in conduct
3
Ballou relies entirely on the First Amendment in this argument, and we therefore do not
address the Maine Constitution further.
8
that is harassing, threatening, or directly harmful to another person—conduct
that is not protected by the First Amendment. “As speech strays further from
the values of persuasion, dialogue and free exchange of ideas, and moves
toward willful threats to perform illegal acts, the State has greater latitude to
regulate expression.” Whitesell, 13 P.3d at 901 (quotation marks omitted).
Thus, although the First Amendment may protect the right to communicate
with another person, it does not protect a person’s choice to engage in
harassing conduct with a purpose to intimidate a person who cannot avoid
hearing statements that place them in fear. See State v. Brown, 85 P.3d 109,
112-13 (Ariz. Ct. App. 2004); Emmerson v. Weilep, 110 P.3d 214, 218 (Wash.
Ct. App. 2005).
[¶17] Thus, “a true threat is not constitutionally protected speech.”
State v. Hotham, 307 A.2d 185, 187 (Me. 1973) (citing Watts v. United States,
394 U.S. 705 (1969)) (involving a threat to police).4 Nor is conduct amounting
to criminal harassment, see 17-A M.R.S. § 506-A(1) (2015),5 protected by the
4 See also Galloway v. State, 781 A.2d 851, 881 (Md. 2000); Commonwealth v. Sholley, 739 N.E.2d
236, 241 (Mass. 2000) (“The First Amendment does not protect conduct that threatens another.”
(quotation marks omitted)).
5 Pursuant to 17-A M.R.S. § 506-A(1)(A)(1) (2015), “A person is guilty of harassment if, without
reasonable cause: [t]he person engages in any course of conduct with the intent to harass, torment
or threaten another person” after receiving a statutorily prescribed form of notice not to engage in
that conduct.
9
First Amendment. Cropley, 544 A.2d at 304-05; see also Thorne v. Bailey, 846
F.2d 241, 243 (4th Cir. 1988) (“‘Harassment is not communication, although it
may take the form of speech.’” (quoting with approval State v. Thorne, 333
S.E.2d 817, 819 (W. Va. 1985))).6 It is the fact-finder who properly determines
whether a true threat or harassment has occurred. See Hotham, 307 A.2d at
187.
[¶18] We have not yet directly considered the application of the First
Amendment in the context of a restraint on communication imposed by an
order of protection from abuse. Ordinarily, “[t]emporary restraining orders
and permanent injunctions—i.e., court orders that actually forbid speech
activities”—constitute prior restraints on speech because they “forbid[]
certain communications when issued in advance of the time that such
communications are to occur.” Alexander v. United States, 509 U.S. 544, 550
(1993) (quotation marks omitted). There is a “heavy presumption against
[the] constitutional validity” of any prior restraint on speech. Neb. Press Ass’n
v. Stuart, 427 U.S. 539, 558 (1976) (quotation marks omitted).
[¶19] When, however, an individual speaks to another person, whether
through telephonic or other electronic means, “not to communicate, but for
6 Cases involving harassing conduct are distinguished from those involving communicative
conduct that is undertaken to express a social or political viewpoint, such as burning a flag as a
statement or holding a sit-in. See State v. Brown, 85 P.3d 109, 113-14 (Ariz. Ct. App. 2004).
10
other unjustifiable motives,” that conduct is not speech protected by the First
Amendment. Altafulla v. Ervin, 189 Cal. Rptr. 3d 316, 323-24 (Cal. Ct. App.
2015) (quotation marks omitted). Conduct involving “constant surveillance”
and an “obtrusive and intruding presence” has been held “unwarranted and
unreasonable,” and therefore not protected by the First Amendment. Galella
v. Onassis, 487 F.2d 986, 995 (2d Cir. 1973) (involving such conduct by a
member of the media). The First Amendment does not provide “a wall of
immunity” for tortious or criminal conduct, id., and “does not compel one to
submit to unwanted or detrimental association with another,” People in
Interest of C.S.M., 570 P.2d 229, 231 (Colo. 1977).
[¶20] Generally, “[c]ourts have held that if past conduct has already
been adjudicated illegal, tortious, or otherwise lacking in constitutional
protection, then future conduct constitutionally may be enjoined.” Laurie S.
Kohn, Why Doesn’t She Leave? The Collision of First Amendment Rights and
Effective Court Remedies for Victims of Domestic Violence, 29 Hastings Const.
L.Q. 1, 50-51 (2001) (footnotes omitted). Specifically, in cases involving
restraining orders, courts have held that the First Amendment’s protections
do not apply to prevent a court from restraining “threatening or abusive
communications to persons who have demonstrated a need for protection
11
from an immediate and present danger of domestic abuse.” Gilbert v. State,
765 P.2d 1208, 1210 (Okla. Crim. App. 1988).
[¶21] For example, the Court of Appeal of California rejected a First
Amendment challenge to a protection from abuse order when a man had
conveyed embarrassing information about his girlfriend to others, including
her employer, and had severely traumatized one of her children with his
angry words and conduct in the home. See Altafulla, 189 Cal. Rptr. 3d at
319-20, 323-24. The Oklahoma Court of Criminal Appeals similarly rejected a
First Amendment challenge to the application of that state’s Protection from
Domestic Abuse Act when a defendant violated a no-contact order entered
pursuant to the Act and the trial court revoked the defendant’s suspended
sentence. Gilbert, 765 P.2d. at 1209-10. The Vermont Supreme Court also
affirmed a conviction for violating an abuse prevention order against the
defendant’s First Amendment challenge to the underlying order when he had
threatened violence and had violated a previous protection order. State v.
Mott, 692 A.2d 360, 362, 365 (Vt. 1997).7
7 But see In re Marriage of Suggs, 93 P.3d 161, 162 & n.1, 165-66 (Wash. 2004) (holding that an
order violated the First Amendment as a prior restraint when it restrained a police officer’s ex-wife
from “knowingly and willfully making invalid and unsubstantiated allegations or complaints to
third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise
harming [him] and for no lawful purpose”).
12
[¶22] To disallow the imposition of an order restraining contact when
abuse and harassment have already occurred, and a person has a
demonstrable need for protection from further abusive and harassing
conduct, “would establish a precedent that would leave persons powerless to
protect themselves against unwanted, annoying, or harassing intrusions on
their privacy.” People in Interest of C.S.M., 570 P.2d at 230-31 (holding that a
no-contact order did not violate the right to freedom of association). The First
Amendment does not support such a precedent. See Mott, 692 A.2d at 365
(“Defendant has no First Amendment right to inflict unwanted and harassing
contact on another person.”). Accordingly, we must consider whether the
restraint imposed here implicates the First Amendment or instead is a
constitutionally permissible restriction on abusive conduct.
B. Extension of the Protection from Abuse Order Protecting Childs
[¶23] The record before the court demonstrated that Ballou’s conduct
went well beyond what he characterizes as the mere voicing of an opinion
about his child’s interests. The court carefully considered Ballou’s past
behavior before placing a restraint on his future communications with Childs.
Ballou had a history of sending a tremendously excessive number of messages
to Childs, and—as the court found—he had demonstrated an inability to
13
restrain himself while the 2013 order was in place. The court also specifically
found that he had used law enforcement to intrude into Childs’s home and
stalk her, see 17-A M.R.S. § 210-A (2015),8 and the evidence showed that he
had sent messages in which he implored her to relax the restrictions on
contact, referred to “break-up sex,” and leveled accusations about her
personal romantic life. Ballou’s intrusions into Childs’s life, including through
lengthy, repeated, and intimidating messages, constitute conduct that is not
protected by the First Amendment. See Cropley, 544 A.2d at 304-05; Gilbert,
765 P.2d at 1210.
[¶24] The First Amendment does not serve as a shield to protect Ballou
from the consequences of his harassing communications. See Whitesell,
13 P.3d at 900-01; cf. State v. Alphonse, 197 P.3d 1211, 1217 (Wash. Ct. App.
2008) (“One may certainly voice a legitimate complaint without resorting to
speech that rises to the level of tormenting or harassing the recipient.”). Nor
8 In relevant part, the stalking statute provides, “A person is guilty of stalking if: [t]he actor
intentionally or knowingly engages in a course of conduct directed at or concerning a specific
person that would cause a reasonable person: [t]o suffer serious inconvenience or emotional
distress.” 17-A M.R.S. § 210-A(1)(A)(1) (2015). “‘Course of conduct’ means 2 or more acts,
including but not limited to acts in which the actor, by any action, method, device or means, directly
or indirectly follows, monitors, tracks, observes, surveils, threatens, harasses or communicates to
or about a person or interferes with a person’s property.” 17-A M.R.S. § 210-A(2)(A) (2015).
“‘Emotional distress’ means mental or emotional suffering of the person being stalked as evidenced
by anxiety, fear, torment or apprehension that may or may not result in a physical manifestation of
emotional distress or a mental health diagnosis.” 17-A M.R.S. § 210-A(2)(D) (2015). A protection
from abuse order may be entered upon a finding of stalking even if the definition of abuse
contained in 19-A M.R.S. § 4002(1) (2015) has not been met. See 19-A M.R.S. §§ 4005(1), 4007(1)
(2015).
14
can he use the First Amendment as a sword to disrupt Childs’s life through
behavior that the court concluded met the definitions of abuse and criminal
stalking. See 17-A M.R.S. § 210-A; 19-A M.R.S. §§ 4005(1), 4007(1) (2015); see
also People v. Baer, 973 P.2d 1225, 1232 (Colo. 1999).
[¶25] In attempting to minimize his past abuse and harassment to
avoid restrictions on future communications, Ballou argues that no single
email could be understood to communicate an actual threat of physical harm.
That argument is unavailing where the very length and volume of his
communications displays his out-of-control behavior, focused directly on
Childs. The court did not err in finding the communication pattern itself was
evidence of a serious threat to Childs.
[¶26] Given Ballou’s history of sending excessive, combative messages
and violating the boundaries established in protection orders—including by
involving law enforcement—in a way that would cause a reasonable person to
fear bodily injury and suffer emotional distress, the court did not commit
error, much less obvious error, in prohibiting Ballou from having any direct or
indirect contact with Childs and requiring that rights of contact with the child
be arranged and facilitated by a third party. See 17-A M.R.S. § 210-A(1)(A)(1),
(2)(A), (2)(D); 19-A M.R.S. §§ 4002(1)(B), 4005(1), 4007(1). The First
15
Amendment offers no protection for the type of conduct that led to the court’s
order, and the court did not violate the United States Constitution by ordering
Ballou to cease having direct or indirect contact with Childs.
[¶27] Similarly, a court does not violate the First Amendment right of
petition9 when it imposes legal consequences for communications to law
enforcement that have been found to “demonstrate[] a criminal intent to
harass, intimidate, torment, and embarrass.” Alphonse, 197 P.3d at 1216-17;
see also Thorne, 846 F.2d at 244 (“The Petition Clause does not provide
blanket immunity for unlawful conduct.”). Although Ballou was not criminally
tried or convicted on the charge of stalking because of an agreement with the
prosecutor that he inexplicably did not fulfill, the court found that his conduct
in repeatedly using law enforcement to check on Childs and intrude into her
home constituted stalking. We discern no error in that determination, and the
court did not violate the First Amendment.
The entry is:
Judgment affirmed.
9 “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the
Government for a redress of grievances.” U.S. Const. amend. I.
16
On the briefs:
Christopher C. Taintor, Esq., Norman, Hanson & Detroy, LLC,
Portland for appellant Robert A. Ballou Jr.
Gina M. Childs did not file a brief
South Paris District Court docket number PA-2013-95
FOR CLERK REFERENCE ONLY