[No. 73892-1. En Banc.]
Argued February 12, 2004. Decided July 8, 2004.
In the Matter of the Marriage of SHAWN S. SUGGS , Petitioner , and ANDREW O. HAMILTON , Respondent .
[1] Courts - Orders - Validity - Constitutional Challenge - Review - Standard of Review. A challenge to the validity of a court order on constitutional grounds is reviewed de novo.
[2] Harassment - Civil Protection - Scope - Constitutionally Protected Activity. Constitutionally protected activity is not within the ambit of the civil antiharassment statute (chapter 10.14 RCW), and the statute may not be used to infringe on any constitutionally protected rights, including freedom of speech.
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[3] Constitutional Law - Freedom of Speech - Prior Restraint - State Constitution - In General. Const. art. I, § 5 prohibits prior restraints against protected speech but does not prohibit prior restraints against unprotected speech.
[4] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Factors. Whether the state constitution is more protective than the federal constitution in a particular situation is determined by applying the factors enumerated in State v. Gunwall , 106 Wn.2d 54 (1986).
[5] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Argument - Necessity. An appellate court may decline to consider a claim that the state constitution is more protective than the federal constitution in a particular situation if the parties have failed to brief the factors enumerated in State v. Gunwall , 106 Wn.2d 54 (1986).
[6] Constitutional Law - Freedom of Speech - Prior Restraint - What Constitutes. A prior restraint is an administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur. Prior restraints are strongly presumed to be unconstitutional. A prior restraint on speech is permissible only in exceptional cases such as war, obscenity, and incitements to acts of violence and the overthrow by force of orderly government.
[7] Constitutional Law - Freedom of Speech - Prior Restraint - Libelous Speech - Antiharassment Order - Indefinite Wording - Chilling Effect. A court may not impose a prior restraint on potentially libelous speech by means of an antiharassment order that contains indefinite wording that leaves the person restrained by the order unable to ascertain what speech is actually prohibited, thereby chilling all of the person's speech. An order implicating First Amendment free speech rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the needs of the public order. The State may not employ means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The order must be tailored as precisely as possible to the exact needs of the case.[8] Harassment - Civil Protection - Protection Order - Proscribed Conduct - Restraint on Speech - Validity. A civil antiharassment order that restrains a person from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming [the person protected by the order] and for no lawful purpose" constitutes an
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impermissible prior restraint on speech that is invalid under the First Amendment.
MADSEN , J., concurs in the result only.
Nature of Action: Petition for an order to protect the petitioner from unlawful civil harassment by his ex-spouse.
Superior Court: The Superior Court for Cowlitz County, No. 92-3-00648-5, David R. Draper, J., on March 8, 2001, entered an antiharassment order that permanently restrained the ex-wife from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming [the petitioner] and for no lawful purpose."
Court of Appeals: The court affirmed the antiharassment order in an unpublished opinion noted at 116 Wn. App. 1016 (2003).
Supreme Court: Holding that the antiharassment order entered by the trial court is an unconstitutional prior restraint on speech, the court reverses the decision of the Court of Appeals and vacates the antiharassment order.
Aaron H. Caplan (of American Civil Liberties Union of Washington ) and Steven N. Bogdon (of Blair, Schaefer, Hutchison & Wolfe, L.L.P. ), for petitioner .
John A. Hays , for respondent .
Alice M. Ostdiek on behalf of Northwest Women's Law Center, amicus curiae.
FAIRHURST , J . - The trial court issued an order for protection from unlawful civil harassment restraining petitioner from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing,
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vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." Clerk's Papers (CP) at 415 (capitalization omitted). The Court of Appeals affirmed. We reverse on the ground that this antiharassment order is an unconstitutional prior restraint on speech.
I. FACTS
Five years after their acrimonious dissolution, respondent Andrew Hamilton«1»filed a petition for an order for protection (unlawful harassment) against petitioner Shawn Suggs. Hamilton's declaration in support of the order alleged the following 11 incidents he believed constituted unlawful harassment:«2»
1.Suggs' husband informed the Cowlitz County Sheriff that he was concerned Hamilton would harm Suggs because of his past practice and because he carried a gun.
2.Suggs' husband informed the Cowlitz County Prosecutor that he was concerned Hamilton may harm him and Suggs.
3.Suggs told the Kelso City Manager that Hamilton was breaking the law and explained the allegations asserted in the petition for order for protection«3»she filed against Hamilton.
«1»Hamilton is a fully commissioned police officer with the Kelso Police Department.
«2»Hamilton also alleged six incidents dating back to the parties' separation "not for the purpose of supporting the actions for the current anti-harassment order but rather to let the court know that these are not isolated events. These have been a series of historical, ongoing events." CP at 3. One of those allegations was that Suggs informed the chief and a lieutenant of the Kelso Police Department and the captain of the Longview Police Department that Hamilton was sexually molesting the parties' daughter, although Suggs later admitted that Hamilton had not molested their daughter. Suggs also accused Hamilton of stealing her cellular telephone, although Hamilton assisted the police in arresting the person who stole it.
«3»Suggs filed a petition for order for protection before and after Hamilton filed his petition for an order for protection (unlawful harassment). Suggs' declaration supporting the order alleged that an on-duty and armed Hamilton recklessly pursued Suggs in his large sport utility vehicle after she picked up their children from school in her small compact vehicle. It also noted that Hamilton repeatedly came to her home unannounced and uninvited and that Hamilton exhibited anger toward her on numerous occasions.
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4.Suggs informed an emergency support shelter that Hamilton was harassing her and that she needed protection.
5.Suggs informed the finance department of the Kelso Police Department that Hamilton had a business license and questioned how a police officer could have a business license. She left a voice mail on Hamilton's business line providing her name and telephone number, then left a message on his home answering machine denying that she left the message on his business line.
6.Suggs informed a person at the community action program that she needed legal aid but first needed to know whether the person she was speaking with knew Hamilton or his new wife.
7.Suggs informed the domestic violence unit of the Longview Police Department that she wanted to file charges against Hamilton because he was harassing her.
8.Hamilton believed that Suggs contacted the Federal Bureau of Investigation about him.
9.Suggs wrote a letter to the editor of The Daily News suggesting that Hamilton harassed her.
10.Suggs sent a letter to Hamilton addressed to "Andrew s Hamilton."
11.A court sanctioned Suggs $500 for violating the parties' parenting plan and ordered her to pay the sanction via deductions from Hamilton's monthly child support payments. Upon receiving the first reduced child support payment, Suggs contacted the office of support enforcement to complain.
The trial court granted Hamilton's petition and permanently restrained Suggs from "knowingly and willfully making invalid and unsubstantiated allegations or com
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plaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." Id . at 415 (capitalization omitted). The trial court denied Suggs' motion for reconsideration.
Suggs appealed, alleging that the antiharassment order was an unconstitutional prior restraint on speech, Hamilton failed to prove unlawful harassment by a preponderance of the evidence, Hamilton did not suffer actual substantial emotional distress, the trial court erred in making the antiharassment order permanent, and she was entitled to immunity and fees. Suggs v. Hamilton , noted at 116 Wn. App. 1016, 2003 Wash. App. LEXIS 1049, 2003 WL 1298665 at **4-5, 7-8 (2003). The Court of Appeals affirmed the antiharassment order and denied immunity and fees in an unpublished decision. Id . at **4, 8. It held that the antiharassment order was a constitutional prior restraint because it restrained unprotected libelous speech. Id . at **4-5. We granted the petition for review. Suggs v. Hamilton , 150 Wn.2d 1009, 79 P.3d 446 (2003).
II. ISSUE
Is the antiharassment order an unconstitutional prior restraint on speech?
III. STANDARD OF REVIEW
[1]This court reviews constitutional challenges de novo. Shoop v. Kittitas County , 149 Wn.2d 29 , 33, 65 P.3d 1194 (2003).
IV. ANALYSIS
[2]Chapter 10.14 RCW prohibits unlawful harassment. " 'Unlawful harassment' " is "a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person,
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and which serves no legitimate or lawful purpose." RCW 10.14.020 (1). Although " '[c]ourse of conduct' " includes "any other form of communication, contact, or conduct," "[c]onstitutionally protected activity" is not within its ambit. RCW 10.14.020 (2). Moreover, the harassment chapter may not be used "to infringe upon any constitutionally protected rights including, . . . freedom of speech." RCW 10.14.190 .
[3-5]Suggs contends that the antiharassment order violates her freedom of speech because it is an unconstitutional prior restraint. In doing so, she argues that article I, section 5 of the Washington Constitution provides greater protection against prior restraints than the first amendment to the United States Constitution. Article I, section 5, prohibits prior restraints against protected speech but permits prior restraints against unprotected speech. State v. Coe , 101 Wn.2d 364 , 374, 679 P.2d 353 (1984). Whether our state constitution affords greater protection to the sort of speech restrained by the antiharassment order is determined by the factors enumerated in State v. Gunwall , 106 Wn.2d 54 , 720 P.2d 808 (1986). Ino Ino, Inc. v. City of Bellevue , 132 Wn.2d 103 , 114-15, 937 P.2d 154, 943 P.2d 1358 (1997) (citing Gunwall , 106 Wn.2d at 58 ). Where, as here, the parties failed to brief the Gunwall factors, this court will not consider a claim that our state constitution affords greater protection. State v. Dhaliwal , 150 Wn.2d 559 , 575-76, 79 P.3d 432 (2003).«4»
[6-8]Accordingly, we turn to federal case law to determine whether the antiharassment order is an unconstitutional prior restraint. The United States Supreme Court defines prior restraints as
«4»This court previously stated that City of Seattle v. Huff , 111 Wn.2d 923 , 767 P.2d 572 (1989), held that article I, section 5 does not provide additional protection to harassing speech in nonpublic forums and that Richmond v. Thompson held that article I, section 5 does not provide any additional protection for defamatory speech. Ino Ino , 132 Wn.2d at 116 (citing Huff , 111 Wn.2d at 926 ; Richmond v. Thompson , 130 Wn.2d 368 , 382, 922 P.2d 1343 (1996)). We cannot rely on Huff or Richmond . As discussed below, we are unable to determine what type of speech this antiharassment order actually restrains. Moreover, the forum analysis of Huff does not apply and Richmond focused on article I, section 4 (the petition clause), not article I, section 5. Huff , 111 Wn.2d at 926 -28; Richmond , 130 Wn.2d at 379 -82.
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"[A]dministrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." M[elville B.] Nimmer, Nimmer on Freedom of Speech[: A Treatise on the Theory of the First Amendment ] § 4.03, p. 4-14 (1984). . . . 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, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993). This antiharassment order is a prior restraint because it forbids Suggs' speech before it occurs; it forbids her from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." CP at 415 (capitalization omitted).
Prior restraints carry a heavy presumption of unconstitutionality. Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70, 83 S. Ct. 631, 9 L. Ed. 2d 584 (1963). In Near v. Minnesota ex rel. Olson , 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931) the United States Supreme Court declared that prior restraints are permissible only in exceptional cases such as war, obscenity, and "incitements to acts of violence and the overthrow by force of orderly government." 283 U.S. at 716.
The Court revisited prior restraint in Chaplinsky v. New Hampshire , 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). The trial court found Chaplinsky guilty of violating a state statute prohibiting persons from uttering offensive, derisive or annoying words, calling another person offensive or derisive names, or making any noise or exclamation in another's " 'presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.' " Chaplinsky , 315 U.S. at 569 (quoting 1926 N.H. LAWS , ch. 378, § 2). Chaplinsky argued that the statute was an unreasonable restraint on his freedom of speech. Id . The Court disagreed, finding that the statute prohibits fighting words - words that are not
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protected by the First Amendment. Id . at 573. In dicta, the Court provided a laundry list of "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem" that may be subject to prior restraint. Id . at 571-72. Included in the list was libelous, lewd, and obscene speech. Id .
Hamilton successfully argued to the Court of Appeals that this antiharassment order is a constitutional prior restraint because it restrains libelous speech - speech included in the Chaplinsky list. Suggs , noted at 116 Wn. App. 1016, 2003 Wash. App. LEXIS 1049, 2003 WL 1298665, at *5. In doing so, both Hamilton and the Court of Appeals cite a footnote from a Washington Court of Appeals decision explaining that "[l]ibelous speech is not protected and, therefore, may be a basis for an antiharassment order." State v. Noah , 103 Wn. App. 29 , 39 n.1, 9 P.3d 858 (2000).
Reliance on this footnote statement is misplaced for four reasons. First, Noah itself acknowledged that the statement was dicta; the statement is immediately followed with "[n]onetheless, we will exclude it from our consideration." Id . Second, unlike the current case, the plaintiff in Noah also filed a defamation suit for damages. Id . at 37. Third, the Noah reasoning conflicts with the footnote because the reasoning focuses on the contact between the victim and the perpetrator and explains that no contact orders are "narrowly tailored by focus[ing] on the victim and a no-contact zone around the victim. It leaves open ample alternative channels of communications, by leaving open every alternative channel so long as no contact is made with the victim and the proscribed zone is not violated." Id . at 41-42. Fourth, and most importantly, we cannot be certain that the antiharassment order in this case restrains libelous speech.
Labeling certain types of speech "unprotected" is easy. Determining whether specific instances of speech actually fall within "unprotected" areas of speech is much more difficult. The United States Supreme Court has repeatedly
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noted that the line between protected and unprotected speech is very fine. In Carroll v. President & Commissioners of Princess Anne , 393 U.S. 175, 183, 89 S. Ct. 347, 21 L. Ed. 2d 325 (1968), for example, the Court stated:
An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ "means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker , 364 U.S. 479, 488[, 81 S. Ct. 247, 5 L. Ed. 2d 231 (1960)]. In other words, the order must be tailored as precisely as possible to the exact needs of the case.
See also S.E. Promotions, Ltd. v. Conrad , 420 U.S. 546, 559, 95 S. Ct. 1239, 43 L. Ed. 2d 448 (1975) ("It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.").
This antiharassment order very generally forbids Suggs from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." CP at 415 (capitalization omitted). Our consideration of what type of speech the order restrains yields three options. Initially, the phrase "invalid and unsubstantiated complaints to third parties" makes it appear as if the order restrains libelous speech. Id . Second, the phrase "designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose" makes it appear as if the order restrains harassing speech. Id . Finally, the combination of the two phrases - "invalid and unsubstantiated complaints to third parties" and "designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose" - makes it appear as if the order restrains "harassment via libel," a unique hybrid of both harassing and libelous speech. Id .
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This confusion leads us to conclude that the antiharassment order is an unconstitutional prior restraint on speech because it lacks the specificity demanded by the United States Supreme Court for prior restraint on unprotected speech. Indefinite wording is impermissible when the Court has repeatedly stated that the line between protected and unprotected speech is very fine. Such wording leaves us unable to ascertain what speech the order actually prohibits. Moreover, it leaves Suggs with an order chilling all of her speech about Hamilton because it is unclear what she can and cannot say. Chilling is intolerable in the first amendment context and is exacerbated by the fact that many of the incidents that Hamilton based his antiharassment order on pertain to the efforts of Suggs and her husband to address what they perceive is Hamilton's harassment.
We can conceive of circumstances where a trial court could draft a constitutionally sound antiharassment order restraining the speech that appears implicated in the order here. For example, the trial court could have restrained Suggs from making specific allegations that were either adjudicated or admitted to be false. It could have specifically ordered that Suggs cannot allege that Hamilton molested their daughter during the dates involved in the previous allegations because Suggs conceded that Hamilton did not molest their daughter. It could have specifically ordered that Suggs cannot allege that Hamilton stole her cellular telephone during the dates involved in the previous allegations because Hamilton helped arrest the person who actually stole it. Such restrictions would pass constitutional muster because they restrain specific speech that has been determined false. As a result, such restrictions would operate as a constitutionally sound post-speech restraint rather than a constitutionally infirm prior restraint.
However, the above circumstances are not present here. This antiharassment order does not have such specificity. The order's "invalid and unsubstantiated" language is particularly problematic in this context because what may
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appear valid and substantiated to Suggs may ultimately be found invalid and unsubstantiated by a court. Id . Fearful of what allegations may or may not ultimately be deemed invalid and unsubstantiated, Suggs may be hesitant to assert any allegations, including those she deems truthful. As a result, even her protected speech would be chilled.
V. CONCLUSION
We find that the antiharassment order is an unconstitutional prior restraint on speech. We reverse the Court of Appeals and vacate the order.«5»
ALEXANDER , C.J ., and JOHNSON , SANDERS , IRELAND , BRIDGE , CHAMBERS , and OWENS ,concur . MADSEN , J ., concurs in the result .
«5»Because we resolve this case on constitutional grounds, we do not discuss the remaining challenges raised by Suggs other than to note that specific findings of fact on each of the legitimate or lawful purpose factors enumerated in RCW 10.14.030 are helpful on review. In addition, the argument that Suggs is immune from harassment under former RCW 4.24.510 (1999) is procedurally barred because she raised such immunity before the Court of Appeals in her motion for reconsideration but failed to challenge the denial of her motion for reconsideration in her petition for review. RAP 2.4(c).