Best v. Marino. No. 34,680 (N.Mex. App.) June 27, 2017.
Following deterioration of the parties’ friendship, Best sought a protective order to inhibit Marino from email contact and derogatory online postings. Marino continued to engage in online contacts, was held in criminal contempt, sentenced, and directed not to use the internet except to contact her attorney or accountant.
The procedural posture of the case offers practice pointers. Review of an order of protection is by appeal, and not by collateral attack such as the review of the contempt proceedings here.
The appellate court was disinclined to rule on Marino’s argument that she did not understand that the protective order included online contacts. The order prohibited abuse activity likely to induce emotional harm, which a reasonable person would understand to include online activity. Moreover, the argument that website and Facebook messages about Best were not intended to reach him were dismissed as disingenuous.
Marino’s argument that the state may not sanction online activity because it is protected speech must fail, because the state may circumscribed unprotected speech such as threats, speech incident to a crime, and other matters. Substantial interests may be circumscribed based on past behavior.
Nonetheless, the prohibition of almost all internet activity was found to be an unconsittuional prior restraint. Such a broad restriction supporting the compelling state interest of inhibiting harm to citizens fails strict scrutiny, as it is not the least restrictive means of supporting that interest. Restrictions on Marino’s access to the internet were lifted with the understanding that all other components of the protective order remain in effect.