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May 20 — Eron Gjoni's appeal from a domestic violence protection order obtained by his former girlfriend, video game designer Zoe Tiberius Quinn, on the ground that the order violated his First Amendment rights by restricting his ability to post information about her online must be dismissed because the order had been vacated, the Massachusetts Appeals Court decided May 19.
Quinn had alleged that Gjoni's postings incited others to threaten and harass her. (The postings are believed to be the genesis of “GamerGate,” in which an online group targeted female video game developers with threats and abuse.) While his appeal was pending, the protection order was vacated at Quinn's request on the ground that the appeal had made her situation worse by causing the harassment and threats to increase.
In a May 21 e-mail to Bloomberg BNA, San Francisco attorney D. Gill Sperlein, a member of both the First Amendment Lawyers Association and the Free Speech Coalition, stated that the protection from abuse order “raised profound First Amendment issues.”
“The actions of Mr. Gjoni’s supporters were reprehensible and would cause pause for even the most strident and pure First Amendment advocate. Accordingly, the case was poised to result in a classic `hard facts make bad law” scenario,” he said.
Sperlein added that “[s]ympathy for Ms. Quinn’s plight and disgust towards her abusers, understandably cultivated demands for broad and effective relief. However, injunctions must always be narrowly tailored, especially when restraining speech, and the protection from abuse order, in my opinion, was clearly overbroad.”
Recognizing that the appeals court did not address the merits of Gjoni’s claim that the order was overbroad, because the order was no longer in place and the issue was moot, Sperlein said that “[t]o be clear, the court did not manufacture a technicality in order to avoid the difficult question; the result was inevitable.”
“I have no doubt whatsoever that the appeals court reached the correct decision. For now, the difficult First Amendment questions raised by `anonymous pack speech' remain unanswered,” he concluded.
When Quinn obtained the ex parte protection order against Gjoni, she alleged not only that he had abused her but also that, following their break-up, he published a lengthy screed online that included highly personal information about her. This information, she said, incited many third parties to harass her, including making numerous “death and rape threats.”
Quinn acknowledged that Gjoni was not directing those persons to harass her, but alleged that he was distributing the information online in a manner he knew would have that effect by specifically targeting the information to parties he knew were already hostile to her.
Along with ordering Gjoni to stay away from Quinn, the September 2014 protection order directed him “not to post any further information about [Quinn] or her personal life online or to encourage `hate mobs'.”
The order was extended following an evidentiary hearing at which Gjoni's attorney was not allowed to cross-examine Quinn. The court refused to consider the attorney's argument that the “no posting provision” infringed on Gjoni's First Amendment rights.
In appealing the order, Gjoni denied any conscious effort to harm Quinn with the posts, and asserted a First Amendment right to comment about her. While his appeal was pending, Quinn sought to have the protection order vacated in is entirety.
She stated that “the existence of the order, and Mr. Gjoni's appeal of it, is in fact exacerbating her situation by allowing Mr. Gjoni to continue to draw attention to himself, [ ], which has the direct effect of increasing the harassment and threats she suffers.”
Although a trial judge terminated the order in August 2015 (and directed law enforcement agencies to destroy all records of it), Gjoni pursued his appeal. His principal argument continued to be that the order's no posting requirement violated his First Amendment rights.
In response, Quinn argued that his appeal should be dismiss for mootness because the order had been vacated.
Before addressing her argument, Justice James R. Milkey took note of the fact that, ordinary, once an appeal has been docketed, the trial court lacks jurisdiction to modify the judgment being appealed.
He decided, however, that the court below had the authority to terminate the protection order while Gjoni's appeal was pending because Mass. Gen. Laws ch. 209A (Abuse Prevention) provides that a protection order may be modified “at any subsequent time” (§ 3(i)).
Turning to the mootness question and Quinn's request to dismiss the appeal, Milkey recognized that Gjoni sought to press on with his First Amendment issues.
However, he said, “[a]t this time, neither party retains anything but an academic interest in those issues, which goes to the scope of the now terminated order. We therefore decline to reach them.”
Saying that the rule against deciding moot questions applied with particular force where the dispute turns on constitutional issues, Milkey was not persuaded by Gjoni's argument that the First Amendment issues should be reached because he continued to face the theoretical possibility of a criminal prosecution for allegedly having violated the order's no posting requirement while it was in effect.
“Generally, whether the terms of an abuse prevention order went too far has no bearing on whether someone could be prosecuted for violating it,” Milkey explained, adding that “[e]ven where the person subject to the court order claims it is invalid on First Amendment grounds, he generally can be prosecuted for a violation of the order regardless of its validity.”
He added (in a footnote) that any contention that the no posting order was void could by raised by Gjoni in the “unlikely event” that he was faced with a new prosecution for violating the now vacated order.
As to Gjoni's argument that his First Amendment arguments should be reached because they presented issues of public importance, Milkey responded that “[w]hile it may well be true that these issues are likely to arise again, we are unpersuaded that, if so, they will evade appellate review.”
(In a footnote, Milkey observed that the First Amendments issues were not moot when Gjoni raised them in the trial court, and said it was “not appropriate” for the judge to decline to consider them even while seeking to protect Quinn from “the uncontested deluge of harassment that she faced[.]”)
Noting that the protection order had not merely expired but had been vacated, and all copies possessed by law enforcement officials had been ordered destroyed, Milkey found no post-termination collateral consequences that barred a finding of mootness.
Thus finding that Gjoni had obtained all the relief to which he could be entitled and no longer had a cognizable interest in whether the order was lawfully issued, Milkey dismissed his appeal.
Justices Peter W. Agnes and William J. Meade concurred.
Quinn was represented by Felicia H. Ellsworth, Tasha J. Bahal, and Daniel C. Wewers, of WilmerHale. Jeffrey G. Harris, of Good Schneider Comier, appeared for Gjoni. All are from Boston.
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