Abstract

http://ssrn.com/abstract=2141966
 


 



Free Speech and Civil Harassment Orders


Aaron H. Caplan


Loyola Law School Los Angeles

September 4, 2012

64 Hastings Law Journal 781 (April 2013)
Loyola-LA Legal Studies Paper No. 2012-29

Abstract:     
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.

Number of Pages in PDF File: 83

Accepted Paper Series





Download This Paper

Date posted: September 6, 2012 ; Last revised: May 3, 2013

Suggested Citation

Caplan, Aaron H., Free Speech and Civil Harassment Orders (September 4, 2012). 64 Hastings Law Journal 781 (April 2013); Loyola-LA Legal Studies Paper No. 2012-29. Available at SSRN: http://ssrn.com/abstract=2141966

Contact Information

Aaron H. Caplan (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,486
Downloads: 148
Download Rank: 117,535

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo4 in 0.344 seconds