S.D. v. N.B.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

4th Circuit Court-Laconia District Division
No. 2022-0114

S.D.

v.

N.B.

Submitted: January 25, 2023
Opinion Issued: June 29, 2023

S.D., self-represented party, by brief.

N.B., self-represented party, by brief.

American Civil Liberties Union of New Hampshire Foundation, of
Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint
memorandum of law) and American Civil Liberties Union Foundation, of New
York, New York (Brian Hauss, Sandra S. Park, and Elizabeth Gyori, on the joint
memorandum of law), as amici curiae.

Dana Albrecht, by brief, as amicus curiae.
 New Hampshire Legal Assistance (Mary Krueger, of Claremont, on the
brief), as amicus curiae.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the
brief), for the New Hampshire Coalition Against Domestic and Sexual Violence,
National Network to End Domestic Violence, National Alliance to End Sexual
Violence, Battered Women’s Justice Project, and Victim Rights Law Center, as
amici curiae.

HICKS, J. The defendant, N.B., appeals a final civil stalking protective
order, see RSA 633:3-a (Supp. 2022), entered by the Circuit Court (Murray, J.)
for the protection of the plaintiff, S.D. The defendant argues that: (1) the
evidence was insufficient to support a finding that he stalked the plaintiff; and
(2) the court’s protective order violates his right to free speech under the First
Amendment to the Federal Constitution. We affirm.

The following facts are set forth in the trial court’s narrative order. The
plaintiff and the defendant have known each other since high school, but never
had a personal relationship. Sometime after high school, the defendant
developed a fixation with the plaintiff. The plaintiff testified that the defendant
began to contact her via the internet sometime in 2017. The defendant agreed
that he had made postings regarding the plaintiff, but testified that they began
in 2019. The postings about the plaintiff included sexual suggestions and
threats.

The trial court held a final hearing on the stalking petition on February
8, 2022, and found that the defendant had stalked the plaintiff. In so ruling,
the trial court found that the defendant had: (1) posted comments concerning
the plaintiff on internet websites, including comments about watching the
plaintiff and being sexually aroused, and desiring that the plaintiff be “gang
banged, raped or shot”; (2) “created animated models resembling [the plaintiff]
and posted them at various sites . . . including Twitter, Instagram, and a
‘Deviant Art’ website” using software the defendant had purchased to create the
models; (3) identified some of the models with plaintiff’s name, including a
model of an adult naked woman; (4) posted a model depicting the plaintiff
“being stabbed in the breast by another woman”; (5) posted a model depicting
the plaintiff “being choked by a police officer”; (6) created a profile on a dating
website using the plaintiff’s name and uploaded models resembling the plaintiff
to that profile; and (7) posted “actual pictures” of the plaintiff that the
defendant had obtained from the plaintiff’s social media pages. The final order,
in effect from February 10, 2022 to February 9, 2023, included a number of
standard protective orders, and also stated:

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 Defendant shall not mention Plaintiff on any social media and shall not
post any images of Plaintiff including pictures of models represented to
be Plaintiff. Defendant shall immediately make best efforts to remove
Plaintiff’s name and/or image from any social media or internet posting
he has made or maintained.

....

Defendant shall not post Plaintiff’s name or any photograph or
representation of her on the internet.

The defendant timely appealed. We solicited amicus briefs or memoranda from
interested persons on whether the above-quoted restraining order provisions,
under the circumstances of this case, violate the defendant’s right to free
speech.

We note that the protective order remained in effect until February 9,
2023, which date has now passed. We have not been notified whether the
order of protection was extended for another year or has expired without
renewal. Nevertheless, the appeal is not moot, even if the order of protection is
no longer in effect. See State v. Luwal, 175 N.H. 467, 470 (2022) (Mootness “is
not subject to rigid rules, but is a matter of convenience and discretion. A case
may not be moot if it presents legal issues that are of pressing public interest
and are capable of repetition yet evading review.” (quotation and citation
omitted)). This appeal presents a question of pressing public interest, that is,
the extent to which the First Amendment places limits on the scope of a
protective order restricting a defendant’s online activity.

Before turning to the constitutional question, we address the defendant’s
argument that the evidence was insufficient to support a finding that he had
stalked the plaintiff. We review sufficiency of the evidence claims as a matter
of law and uphold the findings and rulings of the trial court unless they are
lacking in evidentiary support or are erroneous as a matter of law. See Fisher
v. Minichiello, 155 N.H. 188, 190 (2007). Determining whether the trial court’s
findings are supported by the evidence requires a review of the transcript, and
it is the burden of the appealing party, here the defendant, to provide this court
with a record sufficient to decide his issues on appeal. Bean v. Red Oak Prop.
Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 15(3) (“If the moving
party intends to argue in the supreme court that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence, the moving party
shall include in the record a transcript of all evidence relevant to such finding
or conclusion.”). The defendant did not provide a transcript of the final hearing
on the stalking petition. Absent a transcript, we must assume that the
evidence was sufficient to support the trial court’s determination that the
defendant stalked the plaintiff. See Bean, 151 N.H. at 250.

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 We now consider whether the above-quoted restraining order provisions,
under the circumstances of this case, violate the defendant’s rights under the
First Amendment to the United States Constitution. We review questions of
constitutional law de novo. City of Keene v. Cleaveland, 167 N.H. 731, 737
(2015). We begin by reviewing the law that governs the issuance of civil
stalking protective orders in New Hampshire, then consider the principles that
govern regulations of free speech, and then apply those principles to the
provisions of the civil stalking order.

The legislature enacted RSA 633:3-a, which is contained in the New
Hampshire Criminal Code, to protect individuals from “domestic violence and
problems of like gravity, such as threatening strangers and obsessive former
lovers and in recognition of the fact that harassing and threatening behaviors
toward innocent people is a serious problem.” State v. Craig, 167 N.H. 361,
376 (2015) (quotations and brackets omitted). RSA 633:3-a provides that a
person who has been the victim of stalking may file a civil petition in the
district division of the circuit court where either he or she or the defendant
resides, seeking relief available under RSA chapter 173-B, including a
protective order. See Fisher, 155 N.H. at 190; RSA 633:3-a, III-a; RSA 173-B:4,
:5 (2022).

To obtain the relief requested, the plaintiff must prove “stalking” by a
preponderance of the evidence. RSA 633:3-a, III-a. RSA 633:3-a, I, provides,
in relevant part, that a “person commits the offense of stalking” if he or she:

(a) Purposely, knowingly, or recklessly engages in a course of conduct
targeted at a specific person which would cause a reasonable person to
fear for his or her personal safety or the safety of a member of that
person’s immediate family, and the person is actually placed in such
fear; [or]

(b) Purposely or knowingly engages in a course of conduct targeted at a
specific individual, which the actor knows will place that individual in
fear for his or her personal safety or the safety of a member of that
individual’s immediate family . . . .

The statute defines “course of conduct” as “2 or more acts over a period of time
. . . which evidences a continuity of purpose,” and states that it may include,
but is not limited to, any of the following acts or some combination of the
following acts:

(1) Threatening the safety of the targeted person or an immediate
family member.

(2) Following, approaching, or confronting that person, or a
member of that person’s immediate family.

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 (3) Appearing in close proximity to, or entering the person’s
residence, place of employment, school, or other place where
the person can be found, or the residence, place of employment
or school of a member of that person’s immediate family.

(4) Causing damage to the person’s residence or property or that of
a member of the person’s immediate family.

(5) Placing an object on the person’s property, either directly or
through a third person, or that of an immediate family member.

(6) Causing injury to that person’s pet, or to a pet belonging to a
member of that person’s immediate family.

(7) Any act of communication, as defined in RSA 644:4, II.

RSA 633:3-a. RSA 644:4, II defines “communicates” as follows:

to impart a message by any method of transmission, including but
not limited to telephoning or personally delivering or sending or
having delivered any information or material by written or printed
note or letter, package, mail, courier service or electronic
transmission, including electronic transmissions generated or
communicated via a computer. For purposes of this section,
“computer” means a programmable, electronic device capable of
accepting and processing data.

RSA 644:4, II (Supp. 2022). The stalking statute states that, “[u]pon a showing
of stalking by a preponderance of the evidence, the court shall grant such relief
as is necessary to bring about a cessation of stalking,” and provides that the
“types of relief that may be granted . . . shall be the same as those set forth in
RSA 173-B.” RSA 633:3-a, III-a. RSA 173-B:5 identifies the relief that may be
granted to a plaintiff upon a showing of abuse, and includes, among other
things, as relevant in this case, the issuance of a restraining order directing the
defendant to not abuse the plaintiff, to not have contact with the plaintiff, to
not enter the premises where the plaintiff resides, and to not enter the
plaintiff’s school or the plaintiff’s place of employment. RSA 173-B:5, I(a)(1),
(2), (3) (2022). The list provided in RSA 173-B:5, while lengthy, is not
exhaustive. See RSA 173-B:5. Accordingly, the form order issued by the
circuit court in civil stalking cases, in addition to listing the forms of relief
identified in the statute, also provides the trial court with the option to issue
“[o]ther protective orders.” As we have noted, at issue in this appeal is whether
the trial court’s “[o]ther protective orders” restricting certain online activity
violate the defendant’s right to free speech.

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 The First Amendment to the United States Constitution prohibits the
passage of laws “abridging the freedom of speech.” U.S. CONST. amend I. It
applies to the states through the Fourteenth Amendment to the United States
Constitution. Lovell v. Griffin, 303 U.S. 444, 450 (1938). It affords “special
protection against orders that prohibit the publication or broadcast of
particular information or commentary—that impose a ‘previous’ or ‘prior’
restraint on speech.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556
(1976). “Temporary restraining orders and permanent injunctions—i.e., court
orders that actually forbid speech activities—are classic examples of prior
restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). “Courts and
commentators define prior restraint as a judicial order or administrative
system that restricts speech, rather than merely punishing it after the fact.”
Mortgage Specialists v. Implode-Explode Heavy Indus., 160 N.H. 227, 240
(2010). Because prior restraints have the “immediate and irreversible sanction”
of freezing speech for a period of time, “any prior restraint on expression comes
with a heavy presumption against its constitutional validity.” Id. at 42
(quotations, brackets, and ellipsis omitted).

The United States Supreme Court has stated that “above all else, the
First Amendment means that government has no power to restrict expression
because of its messages, its ideas, its subject matter, or its content.” Police
Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Therefore, a
content-based restriction, that is, a governmental regulation of speech based
on the topic discussed or the idea or message conveyed, is “presumptively
unconstitutional and may be justified only if the government proves that [it is]
narrowly tailored to serve [a] compelling state interest[].” Reed v. Town of
Gilbert, 576 U.S. 155, 163 (2015). A content-neutral restriction on speech
faces a less stringent test, and is constitutional if it “is narrowly tailored to
serve a significant governmental interest.” Ward v. Rock Against Racism, 491
U.S. 781, 794 (1989).

While a content-based restriction is presumptively unconstitutional, it
has also long been “well understood that the right of free speech is not absolute
at all times and under all circumstances.” Chaplinsky v. New Hampshire, 315
U.S. 568, 571 (1942). There are certain “utterances [that] are no essential part
of any exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the
social interest in order and morality.” Chaplinsky, 315 U.S. at 572.
Accordingly, there are certain categories of speech “the prevention and
punishment of which have never been thought to raise any Constitutional
problem.” Id. at 571-72. Those categories of speech include “advocacy
intended, and likely to, incite imminent lawless action; obscenity; defamation;
speech integral to criminal conduct; so-called ‘fighting words’; child
pornography; fraud; true threats; and speech presenting some grave and
imminent threat the government has the power to prevent.” United States v.
Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion) (citations omitted).

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 We understand the defendant to argue that his First Amendment rights
would be violated by any restraint being placed on his ability to make postings
on the internet. The defendant states in his brief that he informed the trial
court that he “didn’t care if [he] ever had contact with [S.D.] ever again for the
rest of [his] life, as [he has] no business talking to her or going anywhere near
her,” and that he “didn’t care if [the court] granted a normal restraining order
(the kind that’s used to actually protect people).” As we have noted, however,
the right of free speech is not absolute, and one type of permissible content-
based restriction on speech is the restriction on “true threats.” Id.; People v.
Counterman, 497 P.3d 1039 (Colo. App. 2021), cert. granted, 143 S. Ct. 644
(U.S. Jan. 13, 2023) (No. 22-138) (argued April 19, 2023). “True threats” are
“those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003).
The speaker need not intend to carry out the threat. Id. at 359-60. Rather, a
prohibition on true threats “protects individuals from the fear of violence and
from the disruption that fear engenders, in addition to protecting people from
the possibility that the threatened violence will occur.” Id. at 360 (quotations
and brackets omitted). Another type of permissible content-based restriction is
the restriction on speech integral to criminal conduct. Alvarez, 567 U.S. at 717
(plurality opinion).

The trial court found that the defendant had committed the offense of
stalking by posting comments about watching the plaintiff and being sexually
aroused, expressing a wish that the plaintiff would be “gang banged, raped or
shot or he should do it since he knew where [she] lived,” and creating nude
models and animations of the plaintiff, some of which depicted her being
violently assaulted. These were posted, according to the trial court order, “at
various sites on the internet including Twitter, Instagram, and a ‘Deviant Art’
website.” Some of the models were also posted at a dating site that included a
profile represented to have been created by the plaintiff. We conclude that
many of these postings “communicate a serious expression of an intent to
commit an act of unlawful violence” toward the plaintiff and that a restriction
on these postings would serve to protect the plaintiff from the fear of violence
and the possibility that the threatened violence would occur. Virginia, 538
U.S. at 359. Other postings, such as the nude models and animations of the
plaintiff, constitute speech integral to stalking, and are, therefore, not entitled
to First Amendment protection. Cf. United States v. Osinger, 753 F.3d 939,
947 (9th Cir. 2014) (defendant’s creation of Facebook account under a name
similar to his ex-girlfriend’s name, and his dissemination of sexually explicit
photos depicting his ex-girlfriend “were not protected under the First
Amendment because they were “integral to criminal conduct in intentionally
harassing, intimidating or causing substantial emotional distress” to the ex-
girlfriend (quotation omitted)). Accordingly, we agree with amici American Civil
Liberties Union of New Hampshire Foundation and American Civil Liberties
Union Foundation (amici ACLU) that a final protective order prohibiting the

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defendant from posting the following would not violate the First Amendment:
comments about watching the plaintiff and being sexually aroused; comments
expressing the desire that the plaintiff would be raped or otherwise assaulted;
animations, models or representations depicting the plaintiff in the nude,
engaged in sexual activity, or being physically attacked; fake dating profiles
featuring the plaintiff; or photographs of, representations of, or comments
about the plaintiff that purposely, knowingly or recklessly cause the plaintiff to
fear for her personal safety or the safety of an immediate family member.

This is not, however, the end of the inquiry regarding whether the
protective order issued in this case violates the defendant’s right to free speech
under the First Amendment, because the order is not so limited. It also
prohibits the defendant from posting the plaintiff’s name or image anywhere on
the internet.

Few state or federal appellate courts have addressed whether orders
prohibiting a defendant, found to have stalked or abused someone, from
posting that person’s name or image anywhere on the internet violate the First
Amendment. One state appellate court, in an appeal from a conviction of
indirect criminal contempt of a prior protection from abuse order, held that a
protective order prohibiting the defendant from “post[ing] any remark(s) and/or
images regarding Plaintiff, on any social network(s), including but [not] limited
to, Facebook, Myspace, Twitter, or any other electronic networks,” was not an
unconstitutional violation of free speech. Commonwealth v. Lambert, 147 A.3d
1221, 1223, 1229 (Pa. Super. Ct. 2016) (emphasis omitted). The court in
Lambert concluded that the proscription in the protective order, because it was
limited to electronic network remarks “regarding Plaintiff,” was not concerned
with the content of the defendant’s speech, but, rather, the target of the
speech. Id. at 1229. The court therefore applied intermediate scrutiny to the
order and concluded that the order advanced an important governmental
interest and was narrowly tailored to address that interest. Id. at 1228-29. An
appellate court in California, without reference to what standard of scrutiny
should apply, stated that, were the issue properly before it, the court would
reject the appellant’s First Amendment challenge to a domestic violence
protection order ordering the appellant to “not post photographs, videos, or
information about [the victim] to any internet site and to remove the same from
any internet site over which he has access or control” because his “ability to
continue to engage in activity that has been determined after a hearing to
constitute abuse under the [Domestic Violence Prevention Act] is not the type
of speech afforded constitutional protection.” Phillips v. Campbell, 206 Cal.
Rptr. 3d 492, 500 (Ct. App. 2016) (quotations and brackets omitted).

In Bey v. Rasawehr, however, the Ohio Supreme Court held that civil
stalking protective orders, which ordered a man not to post about his mother
and sister “on any social media service, website, discussion board or similar
outlet or service” and to “remove all such postings from CountyCoverUp.com

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that relate to [the mother and sister],” and ordered him to “refrain from posting
about the deaths of [their] husbands in any manner that expresses, implies, or
suggests that the [mother and sister] are culpable in those deaths,” were
subject to strict-scrutiny review and violated the First Amendment. Bey v.
Rasawehr, 161 N.E.3d 529, 533, 546 (Ohio 2020) (involving allegations of
political corruption). The court in Bey, after discussing Lambert, rejected the
argument that the order banning all posted speech about the mother and sister
was a content-neutral regulation. Id. at 539.

We need not decide today what level of scrutiny applies to orders
prohibiting a defendant who has been found to have stalked or abused
someone from posting that person’s name or image anywhere on the internet
because, given the facts of this case, we conclude that the order survives even
strict scrutiny because it is narrowly tailored to serve a compelling state
interest. See Reed, 576 U.S. at 163.

The compelling state interest at issue in this case is the protection of the
plaintiff from abuse. As the language of the statute itself makes clear, RSA
633:3-a was enacted to protect innocent citizens from a course of conduct that
would cause a reasonable person to fear for his or her personal safety, or the
safety of a member of that person’s immediate family. Pursuant to the statute,
upon a finding of stalking, a trial court is to “grant such relief as is necessary
to bring about a cessation of stalking.” RSA 633:3-a, III-a. The objective is to
ensure that the stalking ends. MacPherson v. Weiner, 158 N.H. 6, 10 (2008).
Because the defendant has not provided this court with a copy of the transcript
of the trial court hearing, we must conclude that the evidence supports a
finding by the trial court that prohibiting the defendant from posting the
plaintiff’s name or image anywhere on the internet was necessary to bring
about the cessation of stalking. In other words, we must conclude that the
evidence presented to the trial court supports a finding that any comment by
the defendant about the plaintiff on social media would constitute purposely,
knowingly or recklessly engaging in conduct which would cause a reasonable
person in the plaintiff’s position to fear for her personal safety. Accordingly, we
must conclude that a more narrowly tailored order would prove ineffective in
protecting the plaintiff from abuse.

Amici ACLU characterize the trial court’s final protection order as
“sweeping,” and asserts that it is “much more expansive than its findings,”
noting that the defendant would be prohibited from discussing the plaintiff’s
candidacy on social media were she to run for public office, and would be
prevented from “mounting an effective response” were the plaintiff to defame
him over social media. We disagree that the order is “expansive” or “sweeping.”
The trial court order does not prohibit the defendant from engaging in social
media platforms and allows the defendant to participate in almost all online
activity. Furthermore, the order does not prohibit the defendant from speaking
about the plaintiff in any offline forum. The order at issue simply restrains the

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defendant from continuing to stalk the plaintiff, including by using her name
on any social media, for a period of one year. Under the circumstances of this
case, we conclude that the order is narrowly tailored to serve a compelling
governmental interest.

Affirmed.

MACDONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,
JJ., concurred.

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