The Minnesota Court of Appeals has ruled that blogging can constitute harassment, and has ordered a Minnesota man to remove his blog from the internet.
As the decision released last week explains, the blog at issue chronicled the blogger’s ongoing issues with a former girlfriend. Writing in the third person, the blogger wrote about his former girlfriend’s alleged sexually and physically abusive relationships, and questioned the woman’s mental health. He publicized and promoted the blog by sending electronic messages to his former girlfriend’s relatives and friends, and also set up fake Facebook identities to post the blog to other Facebook users.
The woman already had a no-harassment order in place, and after the blogging she went to court to successfully obtain another one—one that specifically prohibited “[a]ny email or other electronic message contact with third-parties that contains any material concerning [the former girlfriend] that affects or intends to adversely affect [her] safety, security, or privacy.” The court’s order also directed the blogger to remove the blog form the internet.
On appeal, the blogger claimed blogging is “comparable to publishing pamphlets and leaving them on your front doorstep for the public,” and that the First Amendment protected his blogging. The Minnesota Court of Appeals disagreed. The court acknowledged that “material published on the Internet receives the same level of protection as information published in other media.” However, the court held that “the constitution does not protect harassing words” and likened the blog to “fighting words” that that First Amendment does not protect.
The outcome makes sense, but the court’s reasoning could have been clearer. Its blanket statement that “harassing words” cannot receive First Amendment protection is not entirely correct. As the United States Supreme Court made case in the landmark case of R.A.V. v. City of St. Paul, when government seeks to ban words instead of conduct, there might be an unconstitutional—and for many, an unfortunate—result. (In the case of R.A.V., an invalidated criminal conviction for cross-burning.)
But on balance, what I think the court of appeals was attempting to articulate was that the act of blogging can, under certain circumstances, constitute harassment. And here, apparently, the blogger went beyond merely posting his content and took affirmative acts to make sure people who knew his former girlfriend saw his blog—efforts that, according to the court opinion, caused the former girlfriend distress.
And that, in the eyes of the law, is not protected conduct under the First Amendment or otherwise.
First, Coleman has an uphill battle if he wants to sue over a lawsuit. Generally, a litigant can say whatever he wants in a lawsuit. It is, in legalese, subject to an absolute privilege. But of course, there are limits to everything, and someday a court might confront this precise issue.
