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Free Speech and Washington Civil Protection Orders

Under Washington law, “unlawful harassment” is “a knowing and willful course of conduct” directed toward a particular person that “seriously alarms, annoys, harasses, or is detrimental” to that person.  To be unlawful harassment, the conduct cannot serve a legitimate or lawful purpose.  Furthermore, the course of conduct must be the type of conduct that would cause a reasonable person substantial emotional distress, and it must actually cause distress to the person seeking the protection order.  RCW 10.14.020. Although communications are included in the “course of conduct,” constitutionally protected speech is not.

Trail SignA Washington appeals court considered whether a woman’s actions were protected by the First Amendment in a recent unpublished case.  The woman appealed a civil anti-harassment protection order on the grounds that it was based on constitutionally protected speech.  She also argued that the oral findings of the trial court had not been supported by substantial evidence.

In his testimony in support of the petition, the appellant’s former romantic partner testified the appellant had contacted his female acquaintance and pointed her to a website containing a post, partly written by the appellant, that described his alleged history of affairs. He also testified that she called him an “impulsive alcoholic, with a violent streak.”

He further testified that the secretary of his beekeeper association called him to ask if he intended to attend the association picnic at the appellant’s brother’s home that day.  The secretary told him the appellant asked her to find out if he would be there because she planned to attend, although she was not a member of the association.

The man also said the appellant called his coworker a couple of days later.  He said she had asked if the man was seeing another woman, told the coworker he had anger and alcohol issues, and threatened to reveal court records to the school district where he worked.  The man assumed she was referring to records related to her unsuccessful petition for a domestic violence protection order the previous month.

The man testified that he saw a vehicle like the appellant’s son’s drive down his shared private driveway at about 11 p.m. one night.  Although the vehicle turned toward the neighbor’s home, it came back out to the main road in a few minutes.   The neighbors said the driver had not visited them.  They also said the appellant had contacted them a few days earlier to ask if the man was home.  They said she told them that the man’s son told her she could come to his home to get her stock tank.  The man’s son said he had not spoken with her.

He testified that the appellant showed up when he was picking up a beehive from her brother and said she had some things for him.  He said she gave him photo albums she had made and a pair of sunglasses she said he had lost on a trail ride to a cabin with his daughter.  He had gone on a trail ride with his daughter in July and lost his sunglasses. When he made the reservations for the July trip, he thought the appellant would also go, but the couple broke up before then. He testified the appellant was aware of the reservation.  He testified she had posted a Facebook request for a trail guide to take her on the trail leading to the cabin on the day he would check out of the cabin.  She posted about her ride a few days later.

The man also testified the appellant approached him in his yard a few days later and said she was there to reimburse him for his attorney fees from defending against her petition for the domestic violence protection order.  He testified she asked him questions about his current relationship status and about their relationship.  He told her he would call the sheriff if she did not leave.  He testified that she finally left when he took out his phone, but she never paid him for the attorney fees.

Sheriff’s reports showed the man had reported the appellant’s conduct several times.  The reports indicated he was told he could seek an anti-harassment order.

The appellant admitted to helping write the post about the man on the website about cheaters.  She also testified she had visited the area of the cabin when the man was there, but she said she went with a male friend.  She testified the encounters at her brother’s home and in the man’s yard were her efforts to comply with the demand for reimbursement for attorney fees.

The trial court made an oral ruling and entered a one-year order of protection.  It found the appellant’s call to the secretary could have been an effort to avoid contact and was not necessarily harassment.  The trial court found that the other conduct could reasonably be perceived as “a deliberate attempt to keep [the man] under surveillance.”  It could cause a reasonable person to be annoyed or concerned about his safety and welfare.  The court further found that the appellant intended to “frighten, intimidate, or harass” him.

When the appellant’s attorney asked if the order was based on the appellant’s online posts, the court said the appellant had the right to post what she believed.  It was the appellant’s “overall course of conduct in contact with others” on which it based its findings.

The appeals court found the trial court had focused on the appellant’s pattern of surveillance and letting the man know she would not leave him alone.  The appeals court noted that making a course of conduct illegal does not infringe upon freedom of speech just because the conduct is partially initiated, shown, or carried out through language.

The appellant also argued that the trial court’s findings were not supported by substantial evidence.  She argued that the record did not support the finding that she had knowingly and willfully attempted to keep the man under surveillance and harass and annoy him.  The appeals court noted, however, that the trial court did not have to accept the appellant’s explanation of her actions.  The court could have based its finding of intent on circumstantial evidence. It is up to the trial court to determine the credibility, weight, and persuasiveness of the evidence before it. The appeals court pointed out that the multiple interactions with the man and the people close to him were hard to explain except as surveillance of him.

The appellant also argued the man had not been seriously distressed or threatened by her conduct.  He had, however, testified to his concerns.  The multiple sheriff’s reports also supported a finding that he had been alarmed, annoyed, or harassed by her conduct.  The appeals court found substantial evidence supported the trial court’s finding.

The appeals court rejected the appellant’s argument that the trial court had been biased against her because it believed the man instead of her.  It is within the court’s role as the fact finder to determine the credibility of the witnesses.  It is not bias for the court to find one witness more credible than another.

The appeals court found no abuse of discretion and affirmed the trial court’s order.

Constitutionally protected speech cannot form the basis for a protection order.  However, if there is a course of conduct that supports the protection order, the fact that some portion of the conduct involves speech will not necessarily preclude the court from granting it.

The Washington civil protection order attorneys at Blair & Kim, PLLC, understand the law surrounding civil protection orders.  Whether you are seeking an order or opposing an order being pursued against you, call us at (206) 622-6562 to discuss your case.

More Blog Posts:

Washington Court of Appeals Reviews Conviction of No-Contact Order Violation

Modifying or Terminating a Protection Order in your Family Law Case

Image: FreeImages.com / Jason Kilp