Comments on blog journals

Q: I have been served with a restraining order for comments that I posted to a Web site. The plantiff's justification is that I have engaged in a course of action against her. Nowhere in the posts is her name mentioned specifically, I make no specific plans to do her physical harm, but make it very clear that I do not like her. I never directly contact her nor do I have anything posted disclosing that I have an account on the Web site, as this is just my own outlet for what is happening in my life. Wouldn't I be protected under the First Amendment as what I did was not criminal? Thank you for your insight.

A: You are right that the first amendment is implicated in determining whether a statement or series of statements is a "true threat." Courts will look at all of the surrounding statements and circumstances. In general, courts seek to determine whether the person making the allegedly threatening statement, under the circumstances in which it is made, specifically intended that the statement be taken as a threat, even where there was no intent of actually carrying out the threat. Under the criminal law, the statement, under the circumstances, has to be "unequivocal, unconditional, immmediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, [to] thereby cause[] that person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety". Penal Code section 422. You may be interested in a recent California Supreme Court case interpreting those provisions, In Re George t. 33 Cal.4th 620 (2004).

However, the issue of whether a person can obtain a restraining order against you (as opposed to whether you can be prosecuted for a crime, is considerably lower. Under Code of Civil Procedure section 527.6, a person can get a restraining order against someone for "harrassment," which is a "knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harrasses the person and that serves no legitimate purpose."

As you have described your postings, it is difficult to tell whether in fact they would form a legitimate basis for a restraining order against you. The other important First Amendment question would be whether the restraining order is forbidding you from making those statements, or merely prohibiting you from approaching that person. If the restraining order as aimed at your behavior rather than your speech (and I acknowledge that the line is not always easy to draw), it may not raise any First Amendment issues.