Free Speech and Civil Harassment Orders
Aaron H. Caplan
Volume 64, Issue 3, 781-862
Every year, U.S. courts entertain hundreds of thousands of petitions for civil harassment orders, i.e., injunctions issued upon the request of any person against any other person in response to words or behavior deemed harassing. Definitions of “harassment” vary widely, but an often-used statutory formula defines it as “a course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” Civil harassment statutes can protect the safety, privacy, and autonomy of victims, but when courts declare that speech is harassing, or issue injunctions against future speech on grounds that it would harass, they may violate constitutional rules against vagueness, overbreadth, and prior restraint. Unfortunately, civil harassment litigation includes structural features that cause courts to systematically underestimate the free speech dangers.
This Article proposes methods to interpret and apply civil harassment statutes that will avoid most serious free speech problems. The key is to define harassment as unconsented contact or surveillance that endangers safety and privacy. The long-established tort and criminal law concepts of battery, assault, threats, trespass, and intrusion into seclusion lie at the core of this definition. Conduct resembling outrage (intentional infliction of emotional distress) lies at the periphery. Speech about the victim directed to other listeners (especially defamation and malicious prosecution) falls outside the definition altogether. By focusing on the nature of the contact between the parties, rather than on the content of one party’s allegedly harassing speech, courts will be better able to apply civil harassment statutes in a constitutionally acceptable manner.