Tag, You’re Screwed

In the olden days, the word “communication” in a restraining order that forbade a person from communicating with another person meant not to speak in person, call on the phone, send a letter or, if we go really far back, send a telegram.  It was easily understood, because it was widely accepted that these were the normal means of communication. It didn’t require greater detail.

But we now have a slew of means of engaging in communication that didn’t exist before.  And unlike the historic means, they not only involve direct communications, but indirect.  We can include their @twit name in 140 characters directed toward someone else, or no one in particular, for example. We can link to their blog or website. We can also tag them in a Facebook post.

Is this communication in violation of an order prohibiting communication?

Maria Gonzalez was not allowed to contact her sister-in-law Maribel Calderon. The New York Law Journal reports, though, that Gonzalez tagged Calderon in a Facebook post and is now being charged with second-degree criminal contempt because of the alleged tag. CNet reports that she is facing a year of jail time.

Gonzalez moved to dismiss the charge because the order of protection placed on her didn’t specify that tagging Calderon in a Facebook post would be a violation. But Acting Westchester County Supreme Court Justice Susan Capeci denied the motion. Capeci noted that the wording in the order forbade communication through “electronic or any other means.”

The point of the restraining order was to prevent Gonzalez from engaging in communication with her nemesis, Calderon.  The argument was that she didn’t communicate to Calderon, but about Calderon.  But the way a Facebook tag works, as most of you will know far better than me since I don’t Facebook, is that it notifies users when another user tags them.  So, the argument would appear to go, it wasn’t Gonzalez communicating with Calderon, but Facebook.

When you tag someone on Facebook, he or she gets a notification about it. In this case, Calderon says she was notified that Gonzalez had written, “You and your family are sad … I’m way over you guys but I guess not in ya agenda.” Not exactly what you want to see on your Newsfeed from someone you had to bring a restraining order against.

Judge Capeci wasn’t impressed.  As a Facebook user, it’s presumed that Gonzalez understood the way the medium worked, that her tagging of Calderon meant that Calderon would receive notice and, though indirect, become aware of the communication.

But is it communication, in the same sense as a phone call?  Certainly, Gonzalez didn’t force Calderon to login to Facebook, look at what she wrote, feel the pain. So how does this become Gonzalez’s fault, when it was Calderon who, after being notified of the tag, chose to take a look?

Initially, when a court issues a restraining order, it invariably comes with a bit of judicial explanation, including the warning not to do anything, not to come close, not to try to weasel one’s way around it, not to violate it, or else.  Let’s not get too bent out of shape about some potential confusion that it didn’t mean that kind of communication.  It’s more along the lines of “don’t communicate, by any means whatsoever.”

The contention that the restraining order neglected to mention that a Facebook tag was included in the prohibition smacks of disingenuousness.  Perhaps Gonzalez had no clue that by tagging Calderon, she would be notified of it. There is a presumption of innocence, not intelligence.  And had that been the excuse, perhaps the judge, after shaking her head, would be persuaded to give Gonzalez a second chance together with a stern tongue-lashing.

But if that wasn’t the argument, and Gonzalez knew full well what would happen when she tagged Calderon, and instead believed she could circumvent the clear intent of the restraining order by playing the distinction that it was indirect communication, or that it was an exercise of free speech to discuss her beef with Calderon with all her Facebook friends, then it was dead in the water.

Sure, there are tons of new, cool ways to engage in communication, direct and less-than-direct, given the miracle of the internets.  But if you make the choice to use them, you bear the consequences of how they work.  As Gonzelez knew, or should have known, that by tagging Calderon in her Facebook post, Calderon would be notified of it, then she bears the responsibility for what Facebook did in her name.

While the analysis isn’t nearly as straightforward as, say, walking up to a person and saying something to their face, it’s disingenuous to contend that digital passive-aggressive communication is any less communication. This isn’t to blame her lawyer for challenging the contempt, or making the argument that tagging isn’t the same as face-to-face communications. That’s the lawyer’s duty, and the argument isn’t frivolous.

That courts parse the most ridiculously intricate details of caselaw to relieve police officers of responsibility for violating people’s rights makes it hard to impose contempt on Gonzalez when it involves new technologies, when a restraining order doesn’t expressly include a “no tagging on Facebook” condition.  It certainly emits an unpleasant odor when people are held accountable for highly nuanced violations at the same time cops can kill with impunity if no court expressed that, under the exact scenario that occurred, it was clearly established that they couldn’t.

But the solution to this apparent conundrum isn’t that restraining orders should be deemed ineffective when they clearly prohibit communication of any sort, but that courts need to stop pretending that cops couldn’t possibly know that it’s a constitutional violation to kill people for no reason.  Hypocritical, for sure, but if the argument is to be less hypocritical, then the answer must be to return reason to all prohibitions rather than crank up the rationalizations for everyone.

And it really isn’t all that hard to grasp that a restraining order prohibiting all communications, including electronic, means what it says, even if it doesn’t mention the latest shiny app specifically. Don’t want to be held in contempt? Don’t do it. It’s just not that hard to comply.

12 comments on “Tag, You’re Screwed

  1. dm

    “And it really isn’t all that hard to grasp that a restraining order prohibiting all communications, including electronic, means what it says, even if it doesn’t mention the latest shiny app specifically. Don’t want to be held in contempt? Don’t do it. It’s just not that hard to comply.”
    C’mon SHG, as you well know, many clients are certain that they’re smarter than their attorney and the prosecutor and the judge. If the foregoing were not true (thank goodness!) CDLs wouldn’t enjoy the repeat business of those genius clients.

  2. Edward Wiest

    Without respect to the proof of this defendant’s mens rea, isn’t the simple solution to modify the boilerplate protective order so as to make express the prohibition of causing a third party to make a communication to the party in question (perhaps including a parenthetical reference to Facebook tagging)? Since the Court controls the language of the order anyway, one would think that it should be no more than two or three decades behind the times. (Since I don’t practice in this area, would someone remind me whether texting is expressly referred to in the prohibitions contained in orders in abuse protection cases?)

    1. SHG Post author

      Mens rea plays no role. This isn’t a separate crime, but contempt for violating a restraining order. And no, your idea is problematic. It says “no communications, including electronic,” already. If it included FB, then expressio unius exclusio alterius comes into play, which would be a disaster. New means of communications happen (and they happen regularly these days). No communications covers all of them.

      1. losingtrader

        YOU LEFT OUT THE “EST”

        AND NO I’M NOT SCREAMING, AS THAT MIGHT BE ASSUMED TO WARRANT A NO CONTACT ORDER.

        IS “ALL CAPS” ASSUMED TO BE SCREAMING?

  3. Edward Wiest

    “No communications, including electronic” seems to be as broad enough a phrase so as to permit Justice Scalia to drive straight through it with the Rule of Lenity, if violation of an abuse protection order is seen as a criminal matter (as it is here in Massachusetts). If the defendant knew that a tag of the protected person would be received by the protected person asexplicitly tied to the defendant, it would seem to satisfy mens rea –if violation of an abuse protection order was deemed a crime, not mere contempt. This civil lawyer’s one criminal trial (a conviction) turned on whether the alleged drive by the protected spouse’s home, if proven, was a violation of the order. Given the low evidentiary burden for the allowance of abuse protective orders, I would argue the order by strictly construed if violations are to be deemed a crime–and some proof of something like mens rea would be required.

  4. Sacho

    Perhaps it’s disingenuous to claim that a Facebook tag is not part of a restraining order. After all, Facebook is the most structured out of the big social media people use – you have “friends” and “non-friends”, communication happens on ‘your’ wall, etc. But that doesn’t cover all of social media, or even the internet. You could be following a Twitter hashtag, getting notifications from anyone who posts using it. Google Alerts is a service which allows you to get notifications whenever Google detects a “keyword” on the internet. You can set up Google Alerts on your name(in fact, Google’s UI encourages you to do so). Does a restraining order’s strong “no communication” also imply you should avoid talking about the person on the internet?

    The point you made about Facebook ‘acting in your name’ is interesting. On Facebook, you can control who you receive notifications from – anyone, friends, etc. The default choice is anyone, but you could certainly change that to just “friends”. Is it not your choice to receive such a notification then, even if it is the default setting?

    Modern social media is all about notifications, feeds, interlinking. Interpreting the absolute wording of a restraining order seems to imply that you should avoid communicating about a person at all, lest they be notified in some way. Of course, I am no lawyer, so perhaps I’m missing the subtleties of the situation.

    1. SHG Post author

      Well, yeah, you are missing far more than the subtleties, but it’s not a lawyer issue. The difference is pretty clear: it’s push versus pull. If the person subject to the restraining order causes communication to be pushed at the person for whose benefit the restraining order exists, that person has communicated. If the person protected by the restraining order goes searching for her name or things the other person wrote about her, then she’s responsible for seeking it out, and the target of the order didn’t communicate.

      You’ve completed muddled the concept here. It’s still wise, under any circumstances, for the target of a restraining order to STFU, no matter what, to avoid any taint as well as admission of wrongdoing, but the idea of who is responsible for spreading the word really isn’t too hard to grasp.

  5. Marty

    I don’t see it. Under that reasoning, if Gonzalez were to say the same thing to a mutual friend, who she knew to be a gossip and likely to relay it to Calderon, Gonzalez would be violating the RO. I think communication necessarily implies direct communication. If not, it should.

    1. SHG Post author

      If Gonzalez said something to a mutual friend, and asked the friend to relay it to Calderon, and the friend assured her she would, and she did, would that change your thinking?

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