December 13, 2011
Revenge Blogger Ordered to Remove Blog--Johnson v. Arlotta
Johnson v. Arlotta, 2011 WL 6141651 (Minn. App. Ct. Dec. 12, 2011)
Johnson and Arlotta dated. After the breakup, Johnson got a "harassment restraining order" (HRO) against Arlotta that:
prohibited him from (1) committing any acts "intended to adversely affect [Johnson's] safety, security, or privacy," (2) having "any contact" with Johnson "in person, by work or home e-mail, by telephone, or by other means or persons," and (3) visiting Johnson's Morgan Stanley "worksite."
Almost immediately thereafter, Arlotta created a blog titled "Help Ann Johnson," written in the third person. The blog "documented Arlotta's ongoing relationship issues with Johnson [and] discussed personal information about Johnson, including her involvement in sexually and physically abusive relationships, and questioned the state of her
mental health." Under pseudonyms, Arlotta then promoted the blog to Johnson's family, friends, contacts and employer as well as some unaffiliated parties, like the local media. Needless to say, many of these folks contacted Johnson regarding Arlotta's communications. The lower court found that Arlotta violated the HRO and ordered a new HRO that extended for 51 years (the appeals court adjusted this down to 50 years, the statutory maximum). The lower court also ordered the blog deleted (which has happened).
The appellate court agreed that Arlotta violated the prior HRO. Arlotta argued that his communications weren't directed to Johnson, but the court rejected that argument: "Arlotta intended his communications to reach Johnson and that they did, causing her humiliation and embarrassment." Johnson also argued that his information was truthful and lawfully obtained, but the court says harassment can occur even if those attributes are true.
The court rejected a constitutional challenge to the HRO, basically treating harassing speech as a class of content categorically excluded from First Amendment protection. I'm not sure about this approach. It seems like this was more appropriately treated as a situation where speech is also conduct, and the HRO regulated his conduct. I believe treating harassing speech as outside the First Amendment invites more mischief than playing with the speech/conduct divide.
The court also concluded that the HRO wasn't impermissibly vague. Arlotta argued that the HRO never expressly said he couldn't contact people in Johnson's network. The court says that's not a problem because the HRO
prohibits communications that are "intentionally calculated" to harass Johnson or have the effect of harassment, directly or indirectly, as exemplified by Arlotta's "Help Ann Johnson" blog and his contact with people close to Johnson.
Finally, Arlotta argued that Johnson could send takedown notices or sue for defamation or public disclosure of private facts, and these alternative ways of proceeding mooted the need for an HRO. The court rejected that based on the statute.
From my perspective, each of Arlotta's arguments had a point, in a tendentious sort of way. Yet, the arguments fell completely flat in light of the fact that Arlotta was, at best, trying to get around an existing HRO. We all know what Arlotta was trying to do, and his arguments felt very disingenuous.
This ruling leaves open a key question. Even under the prior HRO, could Arlotta have blogged about his dealings with Johnson if he did not try to bring it to the attention of others? After all, if his statements are true and not based on restricted information, Arlotta should be able to tell his story. Then again, a blog will show up in the search results, so a blog could be a passive-aggressive way of getting back to Johnson, and just as (if not more) effective as affirmatively reaching out to call attention to the blog. So try a different hypothetical: could Arlotta write and publish a book telling his story? I think the answer should be yes, so long as he lacked malicious intent (recall the initial HRO restricted him from intending to hurt Johnson's privacy).
This makes the court's remedy of ordering the blog deleted somewhat uncomfortable. Arlotta is allowed to speak his mind, and the court may have been able to excise the "harassing" component of the blog without wiping the entire blog off the Internet. Given the constitutional dimensions of this case, it's troubling that the court didn't evaluate that option more carefully.
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