Restraining order brings free-speech challenge

 Judge’s restraining order restricted man from writing about ex-girlfriend

By Mike Mosedale
BridgeTower Media Newswires
MINNEAPOLIS — After Twin Cities executive coach Charles M. Bolton started blogging about his ex-girlfriend and the legal troubles he claims she caused him, he spared little in the way of details — or, for that matter, invective.

“When a law-breaking, vindictive ex-girlfriend with a long criminal rap sheet and history of lies fabricates and files a cooked up charge with police, and then teams up with a law-breaking prosecutor with evil motives, bad things happen to good people,” Bolton vented in 2015 on his Wordpress blog, Men for Justice.

But while Bolton included his ex’s mug shot and a synopsis of her criminal history record in the post, he excluded at least one relevant detail: His own identity. In recounting the saga of his journey through the criminal justice system, Bolton simply referred to himself as “our victim.”

Last summer, more than seven years after the end of the couple’s short and volatile relationship, Paula Polinksy — the aforementioned ex — sought a harassment restraining order. After a contentious trial, Hennepin Court County Judge Richard Trachy concluded that Bolton had harassed Polinksy, in part because he included her Twitter handle in his tweets promoting his Men for Justice blog.

The resulting HRO barred Bolton from contacting Polinksy for 20 years. But in an unusual twist, it also prohibited Bolton from writing about Polinksy “under an identity or auspices other than his true name” or from posting “addresses, telephone numbers, photographs or any other form of information by which a reader may contact, identify or locate” Polinksy.

Did those restrictions impinge on Bolton’s free-speech rights?

That question went before a Minnesota Court of Appeals panel on Tuesday, where Zorislav Leyderman, Bolton’s lawyer, and Andrew Bardwell, Polinsky’s lawyer, squared off in oral arguments.

Read literally, Leyderman told the judges, the order potentially exposes Bolton to criminal prosecution for even engaging in casual conversation.

“If he was to meet a person in the bar and talk about Miss Polinksy, this HRO says that he has to identify himself to the stranger before he can talk about Miss Polinsky,” said Leyderman. In a similar vein, Leyderman continued, Bolton could be prosecuted if he were to post an anonymous comment in response to a hypothetical newspaper article about Polinksy.

Leyderman also urged the court to consider a 1995 decision from the U.S. Supreme Court, McIntyre v. Ohio Elections Commission, which wed First Amendment rights to the right to speak anonymously. In McIntyre, the high court struck down an Ohio statute prohibiting the distribution of anonymous campaign literation.

That prompted Court of Appeals Judge Lucinda Jesson to press Leyderman on the differences between McIntryre and other cases that “involve matters of great public interest” and that of his client. Under the order, Jesson continued, Bolton remains free to express his opinions about the criminal justice system anonymously so long as he doesn’t identify Polinksy by name, or alternately to identify her so long as he also reveals his own identity.

But Leyderman said anonymity is integral to Bolton’s message:  I am the real victim, so my identity should be protected.

For his part, Bardwell urged the court to see the HRO as narrowly crafted solution. “It didn’t say you can’t blog about Ms. Polinsky,” Bardwell said. “It simply said you can’t put out information that will result in other people contacting her.”

Likewise, Bardwell argued that his client deserves consideration since she did nothing to thrust herself into the public sphere and is not a public figure. “She has a right to privacy and a right to be left alone,” Bardwell said.

Still, Judge Francis Connolly wondered why Bolton should not be allowed to anonymously post public records pertaining to Polinsky as long as he abides by the requirement that he not include information that could cause a third party to contact Polinksy.

Bardwell’s response: If Bolton were to start another anonymous blog — and use it to harass Polinsky — it would be much more difficult to enforce the HRO.

In closing, Bardwell urged the court to preserve as much of the 20-year HRO as possible, even if parts don’t pass constitutional muster. “I don’t believe the remedy is to throw out the order in its entirety. If there’s an offensive provision in the order, throw it out,” he said.

After the argument, both lawyers said they expected that the Court of Appeals’ ruling will not put an end to the legal fight.

“Thus far, Mr. Bolton’s litigious nature has suggested this will not go away,” said Bardwell, referencing Bolton’s unsuccessful lawsuit against the prosecutor who charged him with violating a prior harassment order.

“The Court of Appeals will issue an order and one side will not be happy,” said Leyderman. “I think no matter what happens here, there may be a petition to the Supreme Court.”

And even if that doesn’t happen, the fight will continue on another front since Polinsky is currently suing Bolton for defamation. That suit is currently stayed on appeal and the parties are awaiting a ruling from the Minnesota Supreme Court on the constitutionality of Minnesota’s Anti-SLAPP statute.