329190 - TM v MZ – Tammy McGuire v Michael Zoran

On October 23, 2018 the COA issued its published opinion on the matter of TM v MZ (DN #329190). This case was remanded back down to the COA by the MSC (DN #155398) after the MSC found that PPOs do not become moot for appellate purposes simply because they have expired (a position that I have argued for years – see Lipscombe a case that I took up to the COA back in 2010). You can find a copy of the opinion (and all other PPO case law) on my PPO website at www.mifamlaw.com/ppo – as with other PPO Case law, the opinion is not available on the Court of Appeal’s website (can someone with a Westlaw subscription let me know if it is available on westlaw).

The PPO in this matter involved a dispute between neighbors which escalated to the point of the Respondent posting disparaging comments against the petitioner on the internet. The Trial Court granted a PPO against the respondent prohibiting him from stalking and prohibiting him from “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s.” After the PPO was objected to the Trial Court removed the prohibition from stalking, but maintained its prohibition on posting electronic messages.

The Court of Appeals on remand struck down the PPO on both Constitutionally protected speech grounds and as an Unconstitutional prior restraint on speech. The opinion goes through a very detailed analysis of the free speech issues presented in the case and discusses each of the various free speech exceptions in some detail. Below are some highlights from the opinion:

“We do not disagree with the petitioner or the trial court that respondent’s statements often were inappropriate, at times crude, and even sometimes, with respect to the death of petitioner’s son, offensive. Inappropriate, crude, and offensive language, however, is not necessarily excepted from constitutional protection. Thus, we cannot adopt the trial court’s preference to treat a PPO, which in this case is a prior restraint on respondent’s speech, as a means “to help
supplement the rules that we all live in society by.” The First Amendment to the United States Constitution demands that we not treat such speech-based injunctions so lightly.”

“The statute also requires proof that conduct arising from posting the message would cause a reasonable person, and did cause the victim, to “suffer emotional distress and to feel terrorized, frightened, intimidated, threatened, harassed, or molested.” MCL 750.411s(1)(c)-(d). However, MCL 750.411s “does not prohibit constitutionally protected speech or activity.” MCL 750.411s(6). Therefore, in order to warrant a PPO pursuant to MCL 600.2950a(l), the trial court had to find that respondent’s postings-his speech-were not constitutionally protected. MCL 750.411 s(6).”

“At its very base, the exception to the First Amendment for incitement of imminent lawless action requires that the incitement be for actually illegal actions, not just inconvenient or aggravating ones. See id. “There is no categorical harassment exception’ to the First Amendment’s free speech clause.” Saxe v State College Area Sch Dist, 240 F3d 200, 204 (CA 3, 2001) (opinion by ALITO, J.). Here, the record does not support that respondent’s statements were intended to incite imminent lawless action. Keefe, 402 US at 417-419.”

“In sum, the trial court entered the PPO pursuant to MCL 600.2950a, finding a violation of MCL 750.411s. The trial court determined that respondent had violated MCL 750.411s by posting certain messages on Facebook. Pursuant to MCL 750.411s(6), however, the statute ‘”does not prohibit constitutionally protected speech or activity.” Speech over the internet is entitled to First Amendment protection in the same manner as traditional speech. Cooley, 300 Mich App at 256, citing Reno, 521 US at 870. Constitutionally protected speech includes all speech, but for that speech that falls into certain categories, including defamation, fighting words, inciting imminent lawless action, and true threats. Black, 538 US at 359; Beauharnais, 343 US at 266. Respondent’s speech did not amount to fighting words, inciting lawless action, or true threats. Black, 538 US at 359; Beauharnais, 343 US at 266. It was not enough to show that respondent’s words amounted to harassment or obnoxiousness. Saxe, 240 F3d at 204. Therefore, the only possible category remaining to the trial court that would not be considered constitutionally protected speech was defamation. Beauharnais, 343 US at 266. The trial court’s failure to assess whether respondent’s statements were true or false, or to accept evidence on the issue, renders review of that issue impossible. Thus, respondent cannot be said to have defamed petitioner, nor is there anything in the record to support a finding that MCL 750.411s was violated. MCL 750.411s(6). Absent a violation of MCL 750.411s, there were no grounds on which to enter the PPO. MCL 600.2950a. Consequently, the trial court’s decision to the contrary was an error of law, and therefore, an abuse of discretion. See Kostadinovski, 321 Mich App at 743.”

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