New Jersey Appeals Court Reverses Anti-Harassment Order Based on Emails – E.L. v. R.L.M

[Post by Venkat Balasubramani]

E.L. v. R.L.M, 2012 N.J. SUPER. UNPUB. LEXIS 1199 (N.J. Ct. App.; May 30, 2012)

E.L. and R.L.M. divorced, but they had children together. E.L. had custody of the children but R.L.M. had liberal visitation. Prior to their divorce, the parties communicated “extensively” via email—in the year prior to the divorce, R.L.M. sent E.L. 812 emails. E.L. did not complain about the content of the emails, but had qualms about the quantity. (The parties actually sought the help of a counselor to impose limits on the number of email communications that could be exchanged between them.) Things came to a head when R.L.M. planned on taking the children to Canada, and E.L. allegedly didn’t take care of getting the kids’ passports in order. This resulted in about 20 phone calls from R.L.M. and three emails.

Based on these emails E.L. obtained an anti-harassment order. E.L. also put forth some evidence of domestic violence, but without in any away minimizing the effect of domestic violence, these incidents seemed relatively tame (throwing a comforter down the stairs, throwing mail in E.L.’s car, closing a garage door on E.L.’s car when she tried to leave). Apart from one allegation that R.L.M. “grabbed E.L.’s arm,” there was nothing in the opinion that described incidents of actual violence or a threat of violence. As expected, there was bad blood all around, and R.L.M. also testified that E.L. had engaged in acts of domestic violence against him.

One subsection of New Jersey’s harassment statute says that harassment can be found if a person

Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or inoffensively coarse language, or any other manner likely to cause annoyance of harm.

The statute setting forth when restraining orders are appropriate requires a predicate act, along with the evaluation by the court of various factors ranging from the risk of damage to persons or property, the interests of the victim of the child, and the parenting situation. Although it’s unclear, harassment by sending communications can fulfill this predicate act requirement. The trial court found that R.L.M.’s “bombardment” of E.L. with emails was done with the purpose to cause annoyance or harm and therefore constituted harassment (i.e., this was the predicate act).

The appeals court looks at the whether the emails fit the statute and determines that the emails did not contain any “coarse language” (whatever this means). Nor were the communications anonymous. Thus in order to fall within the statute, the emails had to be sent in a manner that is likely to cause annoyance or harm. The court says that since the emails related to the parenting arrangement between the parties, they were not sent with a purpose to cause annoyance or harm. The court finds:

[E.L.’s] stated reaction . . . a subjective one, no doubt arising as a residual effect of the prior marital discord that led to the divorce in the first place.

The court also notes that the fact that although the statute references communications made at inconvenient times, this wouldn’t apply to emails (and presumably other electronic communications) given that opening an email is “optional with the receiver.”

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We’ve blogged a bunch about threats allegedly perpetrated online. Those cases all raise the issue of whether the communication was one-to-one, or made to the general public. Email harassment is different in that it’s a one-to-one form of communication (it’s worth noting that the statute here isn’t restricted to these types of communications). Although emails are one-to-one communications, as the opinion notes, phone calls are different from emails. Emails can be accessed at a time and place of the recipient’s choosing. Obviously, the recipient can also just hit the delete button. Nevertheless, it’s a somewhat open question as to whether repeatedly emailing someone can support a finding of harassment. (See this post from Eugene Volokh and the draft paper linked in the post for a discussion of the issues: “One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyber-Stalking.” For the most part, restrictions on these types of (one-to-one) communications are thought to be OK at some point, but the statutes should be carefully drafted to avoid vagueness and overbreadth problems. For a case dealing with the use of offensive and annoying communications in an instant message conversation check out this post: “Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.”)

Assuming statutes can regulate ‘email harassment,’ the statute here still seems problematic, among other reasons because it covers speech that is “likely to cause annoyance,” without any requirement that the sender intend to cause annoyance or the recipient reasonably perceive an annoyance. (As an overall matter, premising liability on “annoyance” also seems problematic.) The statute also seems to say that anonymous communications can somehow be harassing. I’m not sure what the legislature intended when it included language to this effect in the statute, but anonymity alone shouldn’t be enough to put a communication into the harassment bucket.

The court here avoids all of these issues, simply finding that the emails in question were not intended to be annoying and would not reasonably be perceived as annoying. But the fact that the lower court issued the restraining order illustrates the possible reach of the statute and how it can be used to clamp down on otherwise inoffensive interpersonal communications.

Related posts:

Court Finds That Threatening Video Posted to YouTube and Facebook Can Constitute a “True Threat” — US v. Jeffries

Federal Prosecution Over “Threats” on Craigslist – US v. Stock

Court Finds Juvenile Delinquent Based on Allegedly Offensive Instant Messages — In re Alex C.

Former Employee’s ‘Email Barrage’ Does Not Support CAN-SPAM or Computer Fraud and Abuse Act Claims — Nyack Hosp. v. Moran

Web-based Email Bombardment Campaign Does Not Amount to a Violation of the Computer Fraud and Abuse Act — Pulte Homes, Inc. v. LiUNA