Sending a “DTF?” Text Message Supports Restraining Order — Finigan v. Weinberg

[Post by Venkat Balasubramani]

Finigan v. Weinberg, 2013 Cal. App. Unpub. LEXIS 5868 (Cal. Ct. App. Aug. 21, 2013)

Weinberg was a lieutenant in the Navy. In July 2011, he met with Finigan (a JAG Officer) to obtain legal advice. Weinberg later sent Finigan a Facebook message saying “I didn’t want to say it at the time, but you’re gorgeous.” shutterstock_103792607.jpg Although Finigan did not respond right away, several months later, she thanked Weinberg for the compliment and accepted his Facebook friend request.

In December of that year, Finigan received several text messages from an unrecognized phone number. The first message said “dtf?,” and later messages were in the same vein. Somewhat humorously, in response to one of Weinberg’s messages (“You don’t know me to [sic] well, but i really want to hook up with you”), Finigan responded:

not if I don’t know who you are and not if you can’t spell.

[Eric’s comment: Grammarians of the world, unite!]

A day after this text message exchange, Finigan saw a “long and sexually explicit” Facebook message from Weinberg, where he describes in detail a sexual fantasy of engaging in oral sex with Finigan. As a result of his conduct, Finigan became upset and scared. She sought and obtained a restraining order (a temporary one that the court ultimately makes permanent). Weinberg appealed.

Apart from a procedural issue, the crux of the appeal was whether Weinberg threatened Finigan or engaged in a “course of conduct” that would cause a reasonable person to suffer “substantial emotional distress” and which actually causes such distress.

Weinberg said he engaged in nothing more than “crude behavior” and that “these types of contacts between men and women are not at all uncommon.” [Eric’s comment: a quick survey of blog readers: how many of you have sent a DTF text? On second thought, let’s leave that as a rhetorical question.] He said the conduct had a legitimate purpose—i.e., he was asking her out on a date.

The court rejects this argument:

[i]t is far from normal, socially acceptable dating behavior to (1) send sexually explicit, anonymous text messages to someone and to refuse to reveal your identity when asked; and (2) write a long extremely graphic Facebook message describing an imagined sexual encounter with a person you have only met for 15 minutes in a professional setting and with whom you otherwise have no personal relationship.

The court says that Finigan’s fear and distress is legitimate, reasonable, and an expected consequence of Feinberg’s communications.

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It’s tough to justify Weinberg’s missives, particularly given that he first met Finigan in a professional setting–and one in which rules of conduct come into play.

Still, the case raises the issue of when ordinary dating communications cross the line and become stalkery and scary. With the advent of recent apps like Bang With Friends and Snapchat (neither of which I have used), it’s possible that online dating communication in general is becoming more coarse. I imagine that in certain circles, Weinberg’s conduct would be acceptable or just shrugged off.

Interestingly, Finigan blocked Weinberg’s number and his Facebook account. Weinberg didn’t argue against the permanent restraining order by citing Finigan’s technological blocks, but such an argument probably would have fallen on deaf ears because the court doesn’t inquire whether any post-block messages actually reached Finigan. Furthermore, the statute does not require that communications be ‘unwanted’, and in any event, his postings of sexual fantasies about her arguably caused her substantial emotional distress.

A final thought: this may have lasting consequences for Weinberg. In addition to any discipline under military conduct rules, I wonder if the order would show up on things like a credit check or have other collateral civil or criminal consequences.

So, the perhaps obvious takeaway from this case: think twice before sending that “dtf” text!

[Usage note: this is not the first time “DTF” has appeared in a court opinion. See State v. Noernberg, 2012 Ohio 2062 (Ohio Ct. App. 2012) (noting that the “acronym came from the television show Jersey Shore”). A list of Jersey Shore acronym expressions can be found here: “A Totally Comprehensive Guide To ‘Jersey Shore’ Acronyms“.]

[Edited: I originally stated that Weinberg was the JAG officer but he was the lieutenant and Finigan the JAG Officer. Thanks to the person who pointed this out! (“Slightly less creepy for a client to behave that way to their lawyer than vice versa, but only very slightly less.”)]

Related posts:

Court Denies Restraining Order Against Ex-Boyfriend Who Threatened to Post Revenge Porn — EC v. CBT

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

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.

[photo credit: Shutterstock/Memo Angeles – “Internet Troll Using a Computer“]

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