Can You Get a Domestic Violence Restraining Order That Prohibits Abusive Speech in a Public Forum Towards a Public Figure?

• Publication year: 2021
• Author: Alphonse F. Provinziano, CFLS

Can You Get a Domestic Violence Restraining Order That Prohibits Abusive Speech in a Public Forum Towards a Public Figure?

Alphonse F. Provinziano, CFLS

Alphonse Provinziano is a well known Beverly Hills Divorce and Family Law attorney. Mr. Provinziano is a Certified Family Law Specialist by the State Bar of California, Board of Legal Specialization. A graduate of UC Berkeley and Hastings Law School, he is the principal of Provinziano & Associates. For more information visit: http://www.Provinziano.com

ADomestic Violence Restraining Order is an option available to public figures, provided that there is a qualifying relationship and the speech directed at them is abusive and harassing, such that it disturbs their peace and destroys their emotional calm.

Introduction- Purpose of Domestic Violence Restraining Orders (DVRO)

According to California Family Code section 6220, the purpose of Protective Orders and a DVRO is to "prevent acts of domestic violence, abuse, and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence."

To qualify for a DVRO, there are two main requirements: 1) status as a protected person under sections 6301 and 6211, and 2) experience of abuse as defined in section 6300.

Family Code section 6301(a) grants the court the authority to grant a DVRO to a person who has a relationship with the abuser as listed in section 6211. This would include a spouse or former spouse or a person with whom the petitioner has or had a dating relationship, among others. Central to the issuance of the DVRO, though, is type of relationship between the parties. There has to be or have been a more intimate type of relationship to qualify for a DVRO, or for the parties to be family members related within two degrees of consanguinity or affinity.

Family Code section 6300 requires "reasonable proof of a past act or acts of abuse." While abuse certainly can mean physical or sexual abuse, section 6203(b) says that abuse is not just limited to the "infliction of physical injury or assault." Specifically, section 6320(a) lists several examples of behavior that would allow the court to issue an ex parte order, including "disturbing the peace of the other party."

As defined, "disturbing the peace" for purposes of a DVRO is not the same as the offense of "disturbing the peace" in the Penal Code.¹ In the case of Burquet v. Brumbaugh, an ex-boyfriend was found to have disturbed the peace of an ex-girlfriend when he continued to contact her over the course of eight months even when she asked him to stop the contact, and even came to her house unannounced and uninvited.²

In re Marriage of Nadkarni defined "disturbing the peace of the other party" as "conduct that destroys the mental or emotional calm of the other party."³ That case involved a former spouse "accessing, reading and publicly disclosing [the petitioner's] confidential e-mails."⁴

The Nadkarni case saw a sea change in the law. Up until this point, the common thought among courts and practitioners was such that restraining orders were limited to acts of physical abuse. Nadkarni recognized that abuse occurs in many more forms, and it expanded the legal standard to include many other types of abusive conduct, which could include online harassing speech.

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Rise in Domestic Abuse During COVID-19 Quarantine

At the onset of the pandemic, it was recognized that the quarantine would cause an escalation in the cases of domestic violence given the close proximity of parties staying together, and even at the onset of the pandemic, domestic violence cases were rising.⁵

According to a recent study by the Kaiser Family Foundation, COVID-19 has had a negative effect on mental health and substance use for many people.⁶ Specifically, there has been an increased reporting of depressive and anxiety-based symptoms, and an increase in alcohol consumption or substance abuse.

Correlating with the stress and uncertainty of life in quarantine, there has also been an uptick in incidents of Domestic Violence, with one study from Radiology finding a near doubling of deep physical injuries.⁷ This is likely due to strict quarantine measures that have people staying inside their homes, so more time spent with their abusers, coupled with the stress and upheaval of life many are experiencing during the pandemic.

Not only has there been an increase in the incidents of domestic violence since the beginning of the pandemic, but there has been an increase in the severity of the violence given the increased pressure and strain on people.⁸

Less time to be available in Public, more posting on Social Media

Out of necessity during the pandemic, many workers have made the switch to work from home, using technology such as Zoom for meetings and social gatherings. This increased screen time isn't just spent on work—there has been a definite increase on social media platforms, such as Snapchat and Instagram.⁹

According to a Harris Poll conducted during the beginning of the pandemic, between 46% and 51% of U.S. adults were reporting an increased usage of social media since the beginning of the pandemic.¹⁰ U.S. adults also reported feeling more connected to people in their lives, although a majority reported fewer face-to-face interactions with friends.¹¹ This increased connection is presumably due to more contact on social media platforms.

Social Media as a Battleground for Abusive Speech

Online harassment is nothing new. Even before the pandemic, people were subject to harassment from strangers online for the way they looked, their views on various issues, and for relationship drama, whether as a private person or even as a celebrity.¹² For instance, an actress who accused James Franco of sexual misconduct was targeted on Instagram.¹³ The woman's home address and phone number were posted online, her friends and acquaintances were contacted, and the woman's life was threatened.¹⁴ While this case may seem extreme, there are numerous instances of celebrities and ordinary people being harassed on social media.

Given the increase in mental health and substance abuse due to the pandemic and the increase in social media usage, the increased time spent online is also likely being used as a means for people to vent their frustrations. One recent example of this would be videos of people who refuse to wear masks and are then publicly shamed across social media. However, this frustration doesn't just end with strangers who chose not to follow local mask mandates; interpersonal relationships are suffering, as people are forced to shelter-in-place with household members with little...