Maine Supreme Court – Facebook Posts May Constitute a Communication in Violation of Restraining Order

Richard Heffron III was subject to a protection from abuse order that prohibited him “from having any contact, direct or indirect,” with the protected person whom he once had a relationship with.  He was convicted of violating that order by making posts that

began some of the posts with the phrase, “Hey, [protected person’s name],” and the posts then directly addressed the protected person by using the second-person “you.” For example, in one of the posts that Heffron authored, he stated, “IM GONNA RUN YOU DOWN EVERY CHANCE I CAN TODAY AND TOMORROW AND THE NEXT DAY AND THE NEXT.”

Heffron appealed the conviction, asserting that (i) the posts did not constitute “direct or indirect” contact with the protected person; (ii) he did not have sufficient notice that the posts were a form of proscribed conduct; and (iii) that the posts were a protected form of speech.  The Maine Supreme Court affirmed his conviction.

Direct or Indirect Communications

The Court noted that since Heffron’s post used her name or referred to her directly, he “framed his posts as direct communications to that person.”

In addition, Hefron knew that the protected party used Facebook, as they had once been Facebook “friends” and had “friends” in common.  The protected party became aware of the posts when a shared “friend” showed screenshots to the protected party.  The court found that, in doing so, “Heffron used Facebook as an intervening agency or instrumentality for the purpose of making contact with the protected person.”

Lack of Notice of Proscribed Conduct

The Court also rejected Heffron’s argument that he did not have sufficient notice that the posts were a form of proscribed conduct.  Since the court concluded that Heffron clearly intended to and ultimately succeeded in having contact with the protected party, “he cannot now successfully complain that he did not know that his conduct was proscribed.”

First Amendment

The Court also rejected Heffron’s First Amendment challenge, explaining

courts do not violate a defendant’s First Amendment protections by issuing a protection from abuse order that prohibits him or her from having any direct or indirect contact with the protected person where the defendant has a history of engaging in behavior that “would cause a reasonable person to fear bodily injury and suffer emotional distress . . . .” Childs v. Ballou, 2016 ME 142, ¶ 26, 148 A.3d 291.  Simply put, “[t]he First Amendment does not serve as a shield to protect [Heffron] from the consequences of his harassing communications.” Id. ¶ 24