Plaintiffs Alleges “Harassment by Posting of … News Accounts … Referenc[ing His] Ongoing Litigation … [with] His Ex-Wife”

From Kitsap County Superior Court Judge William Houser in Mavy v. Tomashefsky (Wash. Super. Ct. Clallam County), decided May 28:

Petitioner requests the court to amend the existing restraining order [which is currently on appeal -EV] to include the additional restraints of:

1. Respondent is to have no contact with Petitioner’s minor children; and
2. Respondent is restrained from publishing statements intended to harass, intimidate, or threaten the protected person.
3. Respondent shall not encourage or use a third person to post or share statements on line or via any other mode intended to harass, intimidate, or threaten the protected person; and
4. Respondent is restrained from publishing identifying information about the protected person or the protected person’s children.

For the following reason, the Motion for Additional Restraints is DENIED….

Mr. Mavy askes that his minor children be included in the order. They were not included in the original petition. The relationship between the children and Mr. Tomashefsky is one of step-parent/step-child. There is insufficient credible evidence presented to support the finding that they have been the subject of harassment as defined by law.

Mr. Tomashefsky is the husband of Mr. Mavy’s ex-wife. There is significant litigation history between the parties, including this litigation on a civil harassment order. Mr. Tomashefsky posts news accounts online that involve various issues of interest to the community. He posts these news accounts under the banner of The Olympic Herald.

Included in these posts are news accounts of litigation between Mr. Mavy and his ex-wife. Often these news accounts include information obtained from public court records. Other stories include information that was obtained by public records requests.

Mr. Mavy maintains that Mr. Tomashefsky is engaging in harassment by posting of some of these news accounts, particularly when they reference the ongoing litigation between Mr. Mavy and his ex-wife. He argues Mr. Tomashefsky is intending to harass, intimidate or threaten him.

The First Amendment free speech clause does not have a “categorical harassment exception,” Rodriguez v. Maricopa Cnty. Cmty. Coll. Dist. (9th Cir. 2010) citing Saxe v. State Coll. Area Sch. Dist. (3d Cir.2001). “Speech that harasses does not lose its constitutional protection by virtue of that fact alone.” Catlett v. Teel (Wash. App. 2020).

Publication of information obtained via the Public Records Act is protected by the First Amendment. It is also protected under the Washington Constitution.

Information contained in other depositories of public records such as court records are likewise protected. Our state Supreme Court has stated that “an individual has no constitutional privacy interest in a public record.”

Under the first amendment, the government (including the courts via orders like this) has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Mr. Mavy suggests the limiting language that proposes the court restrict publishing statements intended to harass, intimidate or threaten is an acceptable narrowing of the order to protect the constitutionally protected speech of Mr. Tomashefsky. The Court disagrees with this assessment. Statements or stories that a reader finds to be harassing are protected by the Federal and State constitutions.

News accounts that could be considered threatening in certain ways, or intimidating in certain ways may lose their protections under the constitutional provisions. However, the conduct of publishing the accounts as shown in this case are not threatening or intimidating, and certainly not to the point of going beyond the point of constitutional protection.

Finally, Mr. Mavy requests the Court restrain publication of statements “intended to harass, intimidate, or threaten” the protected person. This is an order of content-related prior restraint. Publication of accurate and lawfully obtained public records is constitutionally protected speech. Exceptions to prior restraint prohibitions include prohibitions against obscenity, incitements or violence, and restrictions during times of war. Mr. Mavy proposes language that he believes narrows the court ordered restraints to fall within the constitutional standard. This Court disagrees….

The legal reasoning seems correct to me; see generally my Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases).