More Free Speech Violations in New Mexico? Prior Restraint Against Billboard Likely

Last year, a New Mexico court issued a domestic-violence restraining order against David Letterman on behalf of a deluded woman who had never met David Letterman, but nonetheless believed he was harassing her through her TV and the content of his TV show, which supposedly contained “coded messages.” (When I was at a non-profit law firm, similarly kooky people would contact me claiming that the CIA, or their ex-spouse, was monitoring them through a chip implanted in their brain. I turned them away, a sign of skepticism which I guess makes me unfit for the bench.) Despite nationwide ridicule, the trial judge defended his restraining order, making clear that he had read the plaintiff’s claims and had not made a mistake, before eventually dissolving it when the ridicule only increased.

(Granting all requests for domestic-violence restraining orders  — not merely the many that are well-founded — is wrong, but it is considered the politically-correct thing to do, since judges learn at judicial seminars put on by advocacy groups — and now subsidized by the Justice Department — that it is sexist to be skeptical of a claim of domestic violence. Many judges grant substantially all requests, and it seems as if no judge has ever lost his job for being too eager to grant such requests — although a few judges have been removed from the bench or pilloried in papers like the Washington Post for denying a request in a case where the victim later was harmed, even if the victim failed to document her claims or support them in detail at the time she requested the restraining order. The Post attacked one judge who had denied some requests — he granted about 90 percent of all requests that came before him, while denying about ten percent — while citing figures that showed that his colleagues in Montgomery County, Maryland, granted about 99 percent of the orders requested.)

The New Mexico courts seem to have learned little since then. Recently, a court commissioner recommended, and a court was expected to issue, a restraining order against a man’s anti-abortion billboard, in response to a request by his ex-girlfriend. The billboard did not mention her name, but lamented that abortion had supposedly taken the life of the man’s unborn child. Greg A. Fultz put up a billboard showing himself holding what appears to be empty space, with the words “This Would Have Been A Picture Of My 2-month Old Baby If The Mother Had Decided To Not KILL Our Child!” and some endorsements, later removed, from pro-life groups, including the words “PRO LIFE” and “RIGHT TO LIFE.”

While the man sounds like a total oddball, the injunction against the billboard is a classic example of an unconstitutional prior restraint, and labeling the billboard as “domestic violence” does not change that. UCLA law professor Eugene Volokh, a leading First Amendment scholar, raised questions about the injunction at this link, noting that it seems to run afoul of the constitutional rule against prior restraints, even if (and this is a big if) it qualifies as an invasion of privacy.

The billboard is a classic example of political speech, not an unprotected “threat,” and thus cannot be prohibited as domestic violence. Even if  the billboard weren’t protected against a lawsuit for money damages (for example, if it had invaded the privacy of the complainant in an unprotected way — which law professor Jonathan Turley views as doubtful), it would still be shielded against an injunction by the First Amendment rule against prior restraints, which prevents injunctions like restraining orders against speech even when the speech could be could give rise to money damages (as the Supreme Court made clear in its Pentagon Papers and Near v. Minnesota decisions, which held that an injunction can be an invalid prior restraint even when it is aimed at defamation that can be sued over, or top-secret information that could give rise to a criminal prosecution). And even non-political speech, which enjoys less First Amendment protection, cannot be made the subject of such a restraining order, as the federal appeals court decision in Alberti v. Cruise illustrates. Nor is there some general exception to the Constitution for “domestic violence”; if there were, the Supreme Court would not have struck down Subtitle II-C of the Violence Against Women Act, as it did in United States v. Morrison (2000). And the New Hampshire Supreme Court would not have struck down that state’s harassment law as a violation of free speech in State v. Pierce (2005). Even if the complainant had subjectively felt threatened by the billboard (which contained no threat of any kind), that would not render it an unprotected “true threat.” For example, a court held that the First Amendment protected a professor’s writings, even though they expressed a yearning for the death of a  college’s president and a fantasy about the funeral of a trustee. See Bauer v. Sampson, 261 F.3d 775 (9th Cir. 2001).

This is not the only area of family law where courts have seemingly abandoned common sense. Business has also suffered as a result. For example, under California’s perverse rule that poorer spouses are entitled to attorneys fees, even in legal disputes they lose (supposedly to level the playing field), a business that employed an ex-husband was ordered by the California Third District Court of Appeal to pay the attorneys fees of an ex-wife who made a meritless demand for documents against the business, even though the business showed the demand for documents was unjustified, quashing the invalid subpoena. The judges saw nothing wrong with ordering the business to pay thousands of dollars in attorneys fees, even though it prevailed in the dispute. Effectively, the judges punished it for defending its legal rights, since doing so resulted in it being forced to pay the thousands in legal bills the ex-wife’s lawyer ran up coming up with a meritless defense of his subpoena.

Tort reformers talk about passing a loser-pays rule, so that winners won’t have to pay their own legal bills when the loser makes an meritless legal argument. Do they realize that winners sometimes pay not only their own legal bills, but the other side’s, too, in the legal swamp known as family law? Not only does family law not apply a loser-pays principle, but it sometimes applies a perverse winner-pays rule when the more prosperous spouse is the winner. (Small wonder that a federal appeals court once referred to family law as a “foul mess.”)

I have previously discussed how some areas of family law already are anti-business job-killers that discourage the formation of small businesses by some ex-spouses. (See this link.)

New Mexico state judges are effectively picked partly by the state’s trial lawyers in a so-called “merit selection” process, which forces governors to pick from a list of candidates selected by a judicial nominating commission. Legal commentators like the National Review‘s Ed Whelan have argued that in practice, such selection processes force governors to pick liberal judges, since the list of “choices” given to a governor by a nominating commission is sometimes devoid of any moderates or conservatives. New Mexico has a worse-than-average business climate, and unlike its neighbors, it is rated as less free than average in the new Mercatus Index of Personal and Economic Freedom. The New Mexico state judiciary has recently been roiled by an indictment of a judge for corruption.