Eugene Volokh on Restraining Orders and the First Amendment

The California Appellate Law Podcast

Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberbullying,” “hate speech,” etc.—especially when no physical violence threatened or happening. The result is that many restraining orders not only prevent the subject from speaking TO the plaintiff, but from speaking ABOUT the plaintiff, and last INDEFINITELY.

Here are the key issues to spot the next time a client calls you about a restraining order or injunction that affects free speech:

• Raise First Amendment challenges, and get familiar with the precedent by reading Prof. Volokh’s articles.
• Look to see if the restraining order merely prohibits speaking to the plaintiff, or goes further and prohibits speaking ABOUT the plaintiff. That’s a big difference that implicates the First Amendment.
• If the subject of a restraining order is facing contempt, consider raising the unconstitutionality of the order as a collateral bar. An unconstitutional order cannot be a basis for contempt, and unconstitutionality is never waived.

Prof. Eugene Volokh’s biography, LinkedIn profile, and X/Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

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Other items discussed in the episode:

• One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731 (2013)
• Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J. L. & Pub. Pol. 147 (2022).
• Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
• Chan v. Ellis, 296 Ga. 838 (Ga. 2015)
• "The First Amendment and Refusals to Deal” via Reason
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.