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This post examines a recent opinion the Court of Appeals of Minnesota issued in a civil case: Polinsky v. Bolton, 2017 WL
2224391 (2017). The court begins the opinion by explaining that
[o]n appeal from the district court's
grant of a harassment restraining order (HRO) in favor of respondent Paula
Polinsky, appellant Charles Bolton argues that (1) the record is insufficient
to support the grant of the HRO, (2) the HRO's prospective limits and
requirements for his online activity act as a prior restraint on his First Amendment freedom of speech, (3) the HRO is unconstitutionally vague and
overbroad, and (4) the HRO is excessive in length.
Polinsky v. Bolton,
supra.
The
Court of Appeals went on to explain how, and why, the lawsuit arose:
Polinsky and Bolton first met in 2006
and began a romantic relationship, which lasted until 2009. The parties had a
volatile relationship, with each claiming verbal and physical abuse by the
other party. Police reports were made in California and Minnesota, and both
parties were prosecuted based on various incidents at different times.
Polinsky broke off the relationship in
2009, and Bolton became upset and angry, sending her profane emails after the breakup. She
obtained a two-year HRO against him. Bolton was convicted of violating that order after a 2011 incident in
which he approached Polinsky in his vehicle when she was exiting her workplace
parking lot. On appeal, this court upheld that conviction. See State
v. Bolton, No. A11–2262, 2012 WL 4052539 (Minn. App. Sept. 17, 2012), review
denied (Minn. Nov. 27, 2012).
In 2012, after the 2009 HRO had
expired, the district court granted a second HRO, which was based on Bolton's
conviction for violating the first HRO. In its order on the second HRO,
however, the district court concluded that Bolton's act of `following’ Polinsky
on Twitter did not amount to contact with her within the parameters of the
previous HRO.
The second HRO expired in April 2014.
In September 2015, Polinsky filed a petition for a third HRO against Bolton. At
a district court hearing, Polinsky produced evidence that Bolton authored a
blog website, which contained allegations of perjury against her and misconduct
by the prosecutor and the judge in the proceedings on the second HRO. The blog,
which identified Polinsky by her former name, purported to describe her past in
unflattering terms, called her a `law-breaking, vindictive ex-girlfriend,’ and
contained a copy of her criminal record. It did not reference Bolton by name,
instead referring to him as `our victim.’
Polinsky v. Bolton,
supra.
The opinion goes on to explain that
Polinsky also produced evidence that,
using the blog's Twitter account, Bolton had sent her a Twitter `@mention’ a
total of eight times. An expert witness testified that the `@mentions’ would
result in notifications on her phone and that the primary purpose of sending an
`@mention’ on Twitter `is to get somebody's attention ... to send them a
notification and let them know about [a] tweet.’ At some point, Polinsky
blocked Bolton from her Twitter account.
Bolton testified that he had tweeted
about Polinsky to get public support for a lawsuit he had filed against the
city attorney and the state seeking to vacate his conviction of violating the
second HRO. He testified that, in tweeting links from his blog referring to
Polinsky, he was relying on the district court's 2012 order, which determined
that his act of “following” Polinsky on Twitter was not contact that formed the
basis for the HRO.
When Polinsky and her fiancé were
staying at a hotel for their destination wedding in 2015, a package was
delivered to their hotel room. The package, which was delivered a few days
before the wedding, contained photocopies of the blog and a copy of a 2008
police report referring to charges of fifth-degree domestic assault against
Polinsky. The copy contained Polinsky's name, but had Bolton's name redacted.
Polinsky became very upset when the package was received.
Bolton denied that he had sent the
package. He noted that the address on the package misspelled the name of the
hotel, consistent with Polinsky's previous misspelling of that name when he had
been there previously with her. He testified that he initiated an inquiry with
the post office to determine the origin of the package, which was not successful,
and that he believed that Polinsky had sent the package to herself.
Polinsky v. Bolton,
supra.
The opinion goes on to explain that the
district court issued an HRO for a
period of 20 years, concluding that Polinsky had proved by a preponderance of
the evidence that Bolton had engaged in acts of harassment within the meaning
of Minnesota Statutes section 609.748 (2014). The district court
found that the contents of the blog, by itself, amounted to protected
expression under the First Amendment, but that the contents of the blog also
shed light on Bolton's other actions, s`me of which were acts of harassment.
Specifically, the district court found that Bolton's `@mentions’ of Polinsky on
Twitter, as well as his sending the package to the hotel, constituted harassing
acts. In so doing, the district court found that Bolton's denial that he had
sent the package was not credible. Therefore, the district court found that
Bolton had committed repeated acts of harassment, which had a distinct,
adverse, and substantial effect on Polinsky's security and sense of privacy.
In its order, the district court also
defined Bolton's prospective conduct that would be deemed a violation of the
HRO. The district court stated:
`Writings or other communications by
[Bolton] which are made available for public hearing or viewing and which
contain addresses, telephone numbers, photographs or any other form of
information by which a reader may contact, identify or locate [Polinsky] are
acts of harassment and are prohibited by this order. Any communications made by
[Bolton] under an identity or auspices other than his true name and which refer
to [Polinsky] are acts of harassment and are prohibited regardless of the truth
or falsity of any statement made about [Polinsky]/’
On appeal, Bolton challenges the
sufficiency of the evidence to support the HRO, as well as the district court's
future prohibition on his communicating public information about Polinsky and
mentioning her anonymously.
Polinsky v. Bolton,
supra.
The Court of Appeals then began the process of announcing
its decision in the case and the rationale for that decision:
Bolton raises several challenges to the
district court's HRO. First, he argues that the district court abused its discretion by issuing an HRO because his conduct did not meet the statutory
definition of harassment. Second, he raises several challenges to the district
court's imposition of the HRO going forward. He argues that the HRO as
applied to his prospective blog postings or other communications amounts to a
prior restraint on his First Amendment rights and is vague and overbroad.
Finally, he argues that the district court abused its discretion by ordering a
20–year HRO. We consider these arguments in turn.
Polinsky v. Bolton,
supra.
The court began with whether the district court judge abused
his or her discretion in issuing the HRO, taking each issue in order, beginning
with the evidence in the case supported the issueance of the HRO:
The district court may issue an HRO if
it finds that there are reasonable grounds to believe that a person has engaged
in harassment. Minn. Stat. § 609.748, subd. 5(b)(3). Harassment is defined
as either a single act of physical or sexual assault or “repeated incidents of
intrusive or unwanted acts, words, or gestures that have a substantial adverse
effect or are intended to have a substantial adverse effect on the safety,
security, or privacy of another.’
Id., subd. 1(a)(1). In order to
prove that harassment occurred, the statute requires both (1) objectively
unreasonable intent or conduct on the part of the harasser and (2) an
objectively reasonable belief on the part of the person subject to
harassment. Dunham v. Roer, 708 N.W.2d 552, 567 (Minn. App.
2006), review denied (Minn. Mar. 28, 2006).
This court reviews the district court's
grant of an HRO for an abuse of discretion. Kush v. Mathison, 683
N.W.2d 841, 843 (Minn. App. 2004), review denied (Minn. Sept.
29, 2004). A district court abuses its discretion if it makes findings that are
unsupported by the evidence or improperly applies the law. State v.
Underdahl, 767 N.W.2d 677, 684 (Minn. 2009). We review the district court's
findings for clear error and defer to its findings regarding witness
credibility, Kush, 683 N.W.2d at 843–44, but we review de novo its legal conclusion that the
facts found satisfy the elements of harassment. Peterson v. Johnson,
755 N.W.2d 758, 761 (Minn. App. 2008).
The district court found that Bolton
had committed repeated acts of harassment, based on his sending the package to
Polinsky at the hotel and on his `@mentions’ of her on Twitter. Bolton contends
that the HRO is not supported by sufficient evidence because the district
court's finding that he sent the package is clearly erroneous and because his
`@mentions’ on Twitter do not constitute contact for purposes of the harassment
statute. We examine each argument in turn.
Polinsky v. Bolton,
supra.
The Court of Appeals began its analysis with the package,
explaining that
Bolton first argues that Polinsky
failed to establish by a preponderance of the evidence that he sent the package
to the hotel. He argues that the mere fact that the materials in the package
were printed from his public website and that the package was mailed from a
post office that he had visited did not establish that he sent the package. He
maintains that he introduced a substantial amount of evidence supporting his
position, including that there was no evidence that he knew where the Polinskys
were; that the address on the package contained misspellings previously used by
Polinsky; and that he attempted to trace the package through the post office,
suggesting that he was not the sender.
But the district court pointed to
evidence in support of its finding that Bolton sent the package, including that
he had the ability to locate the wedding site and date via the Internet; that
he had previously used Polinsky's own website to access her photograph, which
he had incorporated into his blog website; and that the contents of the package
included a police report in which Bolton's name, but not Polinsky's, had been
blacked out. And the fact that Bolton initiated an attempt to trace the package
through the postal service is not determinative of whether he was the person
who sent the package. The district court also found that when testifying,
Bolton clearly showed continuing anger towards Polinsky, including references
to sexual behaviors during their good years that bore little relationship to
the matters at issue. `Credibility determinations are the province of the trier
of fact.’ Peterson, 755 N.W.2d at 763. The district court's finding
that it was more credible that Bolton sent the package than that Polinsky or
another person sent it is not clearly erroneous.
Polinsky v. Bolton,
supra.
The court went on to address Bolton’s argument that
the district court's finding that his
`@mentions’ of Polinsky on Twitter constituted harassment are unsupported by
the evidence. He argues that, in the 2012 restraining order, the district court
had determined that his act of `following’ Polinsky on Twitter was a
notification sent by Twitter, not Bolton, and did not amount to harassment. He
points out that he did not send Polinsky a direct message on Twitter, which is
a more direct form of communication.
But the 2012 order related only to
`following’ a person on Twitter, not initiating an `@mention’ of that person on
Twitter. One commentator has indicated that the use of `@mentions’ on Twitter,
as well as `tagging’ on Facebook, may constitute communication within the
context of harassment. See Nancy Leong & Joanne
Morando, Communication in Cyberspace, 94 N.C. L. Rev. 105, 120,
123–24 (2015). `[B]y tagging the target of a message, the speaker has taken
affirmative steps to ensure that the target receives the message.’ Id. at
123–24. The district court found that the use of the `@mentions’ was deliberate
contact with Polinsky that was unwanted and had a substantial adverse effect on
her security. We agree with this reasoning and conclude that Bolton's Twitter
`@mentions’ of Polinsky satisfy the statutory definition of harassment. See Minn.
Stat. § 649.748, subd. 1(a)(1).
Bolton also argues that even if Twitter
`@mentions’ may generally constitute harassment, Polinsky only submitted
evidence that she received one “@mention” before she blocked Bolton from her
Twitter account. Therefore, he argues, she failed to provide evidence of the `repeated
incidents of intrusive or unwanted acts’ required under the HRO statute. See id.
But because we have concluded that the district court did not clearly err by
finding that Bolton sent the package to the hotel, which qualifies as one incident
of harassment, Bolton's single `@mention’ of Polinsky on Twitter, which she
received, combined with the package incident, means that he engaged in repeated
incidents as required under the statute.3 The
evidence sufficiently supports the district court's issuance of an HRO.
Polinsky v. Bolton,
supra.
The court then went on to address another issue, i.e.,
whether applying the HRO prospectively would “operate as a prior restraint on
Bolton’s First Amendment rights.” Polinsky
v. Bolton, supra. This Wikipedia entry explains the relationship
between prior restraint and the First Amendment.
The Court of Appeals then began its analysis of the prior
restraint issue, explaining that
Bolton also. . . . challenges the scope of the prospective HRO
ordered by the district court. He argues that the HRO operates as a prior
restraint on his First Amendment right of free speech because it prohibits him
from communicating public information about Polinsky and commenting about her
anonymously.
The United States and Minnesota
Constitutions guarantee the right to freedom of speech. U.S. Const. amend.
I; Minn. Const. art. I, § 3. A primary purpose of the First Amendment is `to
prevent previous restraints upon publication.’ Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931). Because prior restraints, including
some judicial or administrative orders, forbid certain communications before
they occur, they are generally viewed unfavorably under the First
Amendment. Rew v. Bergstrom, 845 N.W.2d 764, 776 (Minn. 2014).
When addressing Bolton's arguments, we
are mindful that for purposes of First Amendment considerations, online speech
stands on the same footing as any other form of speech. Reno v. Am.Civil Liberties Union, 521 U.S. 844, 870 (1997). But `the First Amendment
does not guarantee the right to communicate one's views at all times and places
or in any manner that may be desired.’ Heffron v. Int'l Soc'y forKrishna Consciousness, Inc., 452 U.S. 640, 647, 101 S. Ct. 2559, 2564(1981). For instance, we have held that an order for protection proscribing
communication with a person is not a prior restraint because it does not
prohibit a person from expressing ideas in general, but rather prohibits the
expression of those ideas to the specific person protected by the order. Rew,
845 N.W.2d at 777. We may apply a similar interpretation to orders under the
HRO statute. See Anderson v. Lake, 536 N.W.2d 909, 911
(Minn. App. 1995) (stating that caselaw relating to the Minnesota Domestic
Abuse Act may be recognized in interpreting the Minnesota HRO statute).
Polinsky v. Bolton, supra.
The Court of Appeals went on to explain that
Bolton also argues that the district
court's order implicated his First Amendment right to speak
anonymously. An author generally has the freedom to decide whether to
disclose her or her true identity. McIntyre v. Ohio Elections Comm'n,514 U.S. 334, 341, 115 S. Ct. 1511, 1516 (1985). But `[t]he right to speak,
whether anonymously or otherwise, is not unlimited ... and the degree of
scrutiny varies depending on the circumstances and the type of speech at
issue.’ In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th
Cir. 2011). The right to speak anonymously is most strongly implicated when a
speaker engages in political speech. Id.; see, e.g., McIntyre,
514 U.S. at 357, 115 S. Ct. at 1524 (holding that a state's statutory
prohibition against anonymous campaign literature violated the First
Amendment). In addition, the Supreme Court has articulated that in general,
First Amendment protection is most vigorous for speech dealing with public
issues, rather than speech relating to matters of private concern. Snyder
v. Phelps, 562 U.S. 443, 452, 131 S. Ct. 1207, 1215–16 (2011).
Bolton argues that the speech on his
blog relates to matters of public concern, such as his criticism of the court
system. We recognize that Bolton has a First Amendment right to comment on
matters that relate to public issues and that his blog may be an appropriate
forum for exercising that right. But the HRO does not prohibit this discussion.
Rather, it narrowly prohibits blog postings that identify Polinsky's current
contact information, which does not implicate political speech or matters of
public concern. See id.; see also In re
Anonymous Online Speakers, 661 F.3d at 1173.
In addition, the district court carefully
crafted its order, which was narrowly tailored to protect the state's interest
in protecting Polinsky from additional harassment by Bolton, who had been
previously convicted of violating another HRO with respect to her. See Rew,
845 N.W.2d at 781 (concluding that terms and conditions of extended OFP
were no broader than necessary when record showed that actor had repeatedly
violated OFPs and previous OFP established that actor had committed abuse
against the victim). Thus, the order appropriately required, among other
provisions, that Bolton use his real identity when posting about her. See id. Bolton's
use of his real name in future blog postings will allow Polinsky to locate him
and identify him as the potential source of any additional harassing conduct.
Under these circumstances, the terms of the HRO did not unconstitutionally
chill Bolton's First Amendment right to speak anonymously.
Polinsky v. Bolton, supra.
The court then took up Bolton’s final argument on appeal,
i.e., that
the district court abused its
discretion by issuing the HRO for a 20–year period. By statute, the district
court may order the relief granted in the HRO `for a period of up to 50 years’
on a finding that the petitioner has been granted two or more previous
restraining orders against the same respondent. Minn. Stat. § 609.748,
subd. 5(b)(3).
Bolton does not dispute that Polinsky
had two previous HROs granted against him. But he argues that in the previous
order determining that he had violated the 2012 HRO, the district court found
that his conduct of “following” Polinsky on Twitter did not amount to a
violation. He maintains the district court “essentially misled” him into
thinking that his conduct on Twitter was lawful and, as a result, he should not
have a 20–year HRO issued against him.
The district court here, however, did
not base its HRO findings on Bolton's `following’ Polinsky on Twitter, but
rather on his conduct of making “@mentions” of her on Twitter, which directly
contacted her on her phone. The district court found that Bolton's reference to
the 2012 order was inapposite, because the `@mention’ process was different,
according to expert testimony. The district court also found that Bolton's
conduct of sending the package to Polinsky was another act that supported
issuance of the order. Under these circumstances, as permitted by statute after
two previous HROs, the district court did not abuse its discretion by issuing
the HRO to extend for a 20–year period.
Polinsky v. Bolton,
supra.
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