148 A.3d 291
Me.2016Background
- Childs and Ballou are divorced parents; Childs obtained protection-from-abuse orders in 2010 (by consent) and 2013 (by consent, limited contact by email only re: child). The 2013 order expired in 2015.
- Childs moved to extend the 2013 order; after a contested evidentiary hearing the District Court extended the order two years, prohibiting Ballou from any direct or indirect contact with Childs and requiring child-contact be arranged through a third party.
- The court found Ballou had sent excessive, lengthy, combative communications (texts/emails), made accusations about Childs’s personal life, referenced "break-up sex," and continued to intrude on Childs’s home and life despite orders.
- The court also found Ballou repeatedly requested law-enforcement "well-being checks," which the court characterized as stalking and misuse of police to surveil Childs.
- Ballou appealed, arguing the contact restrictions violated his First Amendment rights and his right to petition officials; he did not raise First Amendment objections at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the extended protection order violated Ballou's First Amendment rights by restricting nonthreatening communications | Ballou argued the barred communications were at worst upsetting speech protected by the First Amendment | Court and Childs argued Ballou's communications were harassing, excessive, and part of conduct (stalking/abuse) that is not protected | Court affirmed: restrictions target unprotected harassing/stalking conduct, not protected speech |
| Whether Ballou’s repeated petitions to law enforcement are protected petitioning activity immune from sanction | Ballou claimed right to petition shields his repeated police contacts | Childs/court said the contacts were used to harass and surveil, showing intent to intimidate | Held: Petition clause does not shield unlawful harassing conduct; no First Amendment violation |
| Whether the court erred by relying on pattern/volume of communications rather than single threatening statements | Ballou argued no single message threatened physical harm | Court/Childs argued the pattern (volume, content, misuse of police) showed inability to abide orders and caused fear | Held: Court reasonably relied on communication pattern as evidence of abuse and risk |
| Whether failure to raise First Amendment claim below bars reversal absent obvious error | Ballou did not raise the constitutional objection at trial | Appellant argued preservation not required for appellate review of constitutional error | Held: Review limited to obvious error; no obvious error found given record support |
Key Cases Cited
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (establishes that certain categories of speech receive no First Amendment protection)
- Watts v. United States, 394 U.S. 705 (1969) (discusses scope of what constitutes a true threat)
- Neb. Press Ass'n v. Stuart, 427 U.S. 539 (1976) (prior restraints on speech carry a heavy presumption against validity)
- Alexander v. United States, 509 U.S. 544 (1993) (temporary restraining orders and injunctions can constitute prior restraints)
- State v. Cropley, 544 A.2d 302 (Me. 1988) (harassing conduct is not protected speech)
- Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973) (unwarranted intrusive conduct is not protected by free-speech principles)
- State v. Hotham, 307 A.2d 185 (Me. 1973) ("true threats" are not constitutionally protected)
- Gilbert v. State, 765 P.2d 1208 (Okla. Crim. App. 1988) (upholding abuse-protection restrictions on threatening/abusive communications)