Terry Grover v. Lisa Littleton ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
March 12, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
LISA LITTLETON, No. 51217-3-II
Respondent, UNPUBLISHED OPINION
v.
TERRY GROVER,
Appellant.
BJORGEN, J.P.T.* — Terry Grover appeals from the superior court’s order affirming an
anti-harassment protection order issued by the district court in favor of Lisa Littleton.
He argues that (1) the district court erred in granting the order because it improperly
found unlawful harassment and (2) the order was an unconstitutional prior restraint on his free
speech rights. Littleton argues the case is moot because the order has expired. Grover counters
that the case is not moot because we can still provide effective relief.
We hold that (1) the appeal is not moot, (2) the district court did not err in ruling that
Grover engaged in unlawful harassment under the statute, (3) the order was not an
unconstitutional prior restraint, and (4) certain elements of the order were not narrowly tailored
to serve a compelling state interest and thus fail the applicable strict scrutiny test. Therefore, we
hold that the conditions failing strict scrutiny are invalid. We otherwise affirm the order.
*
Judge Bjorgen is serving as a judge pro tempore for the Court of Appeals, pursuant to RCW
RCW 2.06.150.
No. 51217-3-II
FACTS
Grover is the chief executive officer and chief financial officer of The Government
Procurement Store Inc., also known as Global GPS. Global GPS owns the registered trademark
name, EnviroLux. Littleton is the president of Twice the Light (TTL), a lighting sales and
installation business. The two companies entered into a licensing agreement allowing TTL to
use the trademark name EnviroLux and stating that Global GPS was not to be responsible for
warranty claims related to EnviroLux.1
This business relationship collapsed, culminating in a June 29, 2015 e-mail from Grover
to Littleton titled “Defcon 1” (Defcon 1 e-mail). The Defcon 1 e-mail included copies of two
private e-mails Littleton had sent to third parties, including one she had sent to her attorney. In
that e-mail, Grover stated that he had “copies of all [Littleton’s] Internal emails since day 1” and
that “[a]ll emails are on flash drives in 2 separate safety deposit boxes, addressed to 11 different
individuals, including the bank, in case I get hit by a bus.” Clerk’s Papers (CP) at 352. Grover
also threatened, “I have many other emails that would reflect badly if put in wrong hands.” CP
at 354. At the end of the e-mail Grover stated, “I just want to move on.” CP at 354. This was
the last communication Grover directly had with Littleton.
On August 4, 2015, TTL’s attorney sent EnviroLux a cease and desist letter threatening
legal action and demanding, among other things, that EnviroLux not access TTL’s
communications or make any comments to any third party regarding TTL’s products and
manufacturing standards. A month later, EnviroLux sent a response letter describing TTL’s
alleged contract breaches and EnviroLux’s related losses. It was around this time that EnviroLux
1
In keeping with the terminology in Grover’s brief, we refer to Grover’s company as EnviroLux.
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No. 51217-3-II
started receiving complaints from customers who said Littleton had claimed that EnviroLux was
responsible for the warranty on defective products.
Those complaints prompted Grover to start a blog ostensibly to address the warranty
issue, protect EnviroLux’s reputation, and comment on Littleton’s and TTL’s business practices.
As a part of this effort, Grover posted several private e-mails from Littleton to other third parties
that contained personal information about Littleton, private bank account numbers, and the
personal cell phone numbers of her employees. Grover used the blog to urge customers to
complain and take legal action against Littleton and TTL. Grover also sent the blog to one of
TTL’s key trade allies.
Littleton contacted the police department and met with a detective, who recommended
that she seek a protection order. On September 21, 2016, Littleton filed a petition for an anti-
harassment protection order to force Grover to “cease email/blog regarding Lisa Littleton/Twice
the Light.” CP at 350. She asserted that “the . . . blog makes me fearful of what [Grover] might
continue to share publicly.” CP at 348.
At the hearing on Littleton’s petition, following testimony from Littleton, Grover, and the
detective, the district court found that Grover’s conduct constituted harassment. In finding that
Grover’s conduct was directed at Littleton, the court specifically focused on the posting of
private personal e-mails and targeting third parties that do business with Littleton. The court
noted that although this case arose out of a business dispute, “this seems to be a personal
vendetta that is aimed directly again at Ms. Littleton personally not just the business.” CP at
243.
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No. 51217-3-II
The district court orally found that (1) the current contact (i.e., the blog) between the
parties was initiated by Grover, (2) Grover was given clear notice that all further contact with
Littleton was unwanted through a cease and desist letter, (3) Grover’s course of conduct was
directed at Littleton and appeared designed to alarm or harass Littleton, (4) although the majority
of the blog legitimately sought to protect Grover’s business interests, Grover’s use of private e-
mails and Littleton’s and others’ personal information was not pursuant to any statutory authority
and not reasonably necessary to protect his property or liberty interests, and (5) Grover’s
“personal vendetta” against Littleton had the purpose of creating an intimidating, hostile, or
offensive living environment. CP at 239-43.
The district court determined that it would not require Grover to take down the blog or
limit his ability to post. However, the court issued an order imposing specific limitations on
some of the types of information that could be posted, taking into account Grover’s “angry,
uncooperative, and defiant” demeanor. CP at 398. Part of the order, which is not at issue in this
case, prohibited Grover from contacting Littleton, keeping her under surveillance, and being
within 300 feet of her place of employment. The disputed section of the order reads:
[Grover] may not post to any of his blogs the following: emails obtained regarding
[Littleton] or Twice the Light if not specifically addressed to [Grover] as intended
recipient, no bank account information or personal information, or pictures of
[Littleton]. . . . [Grover] must remove prior posts in violation of these terms.
CP at 108. The order was issued on December 14, 2016, and expired on December 14, 2017.
Grover moved for reconsideration, arguing that (1) the alleged photo that he posted was
actually a video that should not be prohibited, (2) he had been the intended recipient of some of
the e-mails he had posted, and (3) the business dispute was still ongoing and the order prevented
him from providing information to customers.
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No. 51217-3-II
The district court denied the motion, noting that because the video was a professional
video put out by TTL, it did not fall under the prohibition on posting “personal information or
pictures” of Littleton and so did not require modification to the order. CP at 398. With respect
to the e-mails, the court acknowledged that it appeared some of the e-mails were shared
knowingly with Grover by a third party with whom Grover had a personal relationship.
However, the court also noted “grave concern” that a couple of the e-mails posted to the blog
appeared to have been altered to list Grover as an intended recipient when the originals had not,
though the court declined to make a specific finding to that effect. CP at 398-99. The court also
rejected Grover’s argument that the order limited his ability to post, noting that the order
imposed only minor restrictions that were justified by his demeanor in court and “the ongoing
nature of the postings on the blog of an unprofessional, aggressive manner that seem to be a call
to action to personally attack [Littleton] as opposed to suggesting legal recourse in the course of
ordinary business.” CP at 399.
Grover appealed to the superior court, which affirmed the order. Grover then sought
discretionary review under RAP 2.3(d), which we granted.
ANALYSIS
I. MOOTNESS
Littleton argues that this case is moot because the protection order has expired and she
has not sought to renew it. Grover counters that the controversy is ongoing because he could
potentially be arrested for a previous violation of the order and he has been publicly stigmatized
by the order. We agree with Grover that the case is not moot.
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No. 51217-3-II
A. Legal Principles
A case is moot if there is no longer a controversy between the parties, if the question is
merely academic, or if a substantial question no longer exists. Pentagram Corp. v. City of
Seattle, 28 Wash. App. 219, 223, 622 P.2d 892 (1981). However, a case is not moot if we can still
provide effective relief. Id. “Effective relief” can include cleansing a person’s record and
reputation of the “continuing stigma” of an anti-harassment protection order. Hough v.
Stockbridge, 113 Wash. App. 532, 537, 54 P.3d 192 (2002), reversed on other grounds, 150 Wash. 2d
234 (2003).
B. Effective Relief
Grover argues that we can provide him effective relief for two reasons: (1) he has been
publicly stigmatized by the order and wishes to have his record cleansed and (2) he is living
under fear of arrest for a violation of the order. We agree with Grover as to the first reason and
therefore do not address the second.
In Hough, we held that an anti-harassment order placed a continuing stigma on the
restrained party and that we had the power to remove that stigma with a favorable decision. 113
Wash. App. at 537. We held also that such a decision constituted effective relief, thus avoiding
mootness. Id. We see no significant difference between Hough and the circumstances presented
here in the creation of a stigma or the provision of effective relief. Therefore, the present appeal
is not moot. We could still provide Grover with effective relief by removing any stigma of the
order.
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No. 51217-3-II
II. UNLAWFUL HARASSMENT
Grover argues the trial court erred by granting the protection order because there was
insufficient evidence that his actions constituted unlawful harassment. We disagree.
A. Legal Principles and Standard of Review
We review a trial court’s decision to grant a protection order for abuse of discretion.
RCW 10.14.080(6); State v. Noah, 103 Wash. App. 29, 43, 9 P.3d 858 (2000). Review of factual
determinations is limited to determining whether substantial evidence supports the trial court’s
findings. In re Marriage of Rideout, 150 Wash. 2d 337, 351, 77 P.3d 1174 (2003). Substantial
evidence is evidence sufficient to convince a rational person of the truth of the finding. In re
Welfare of T.B., 150 Wash. App. 599, 607, 209 P.3d 497 (2009).
A superior court may enter a civil anti-harassment protection order if it “finds by a
preponderance of the evidence that unlawful harassment exists.” RCW 10.14.080(3). “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, and which serves no
legitimate or lawful purpose.” RCW 10.14.020(2). A “course of conduct” is “a pattern of
conduct, composed of a series of acts over a period of time, however short, evidencing a
continuity of purpose.” RCW 10.14.020(1). “Course of conduct” includes “the sending of an
electronic communication.” RCW 10.14.020(1). The course of conduct must be “such as would
cause a reasonable person to suffer substantial emotional distress, and shall actually cause
substantial emotional distress to the petitioner.” RCW 10.14.020(2). “Course of conduct” does
not include constitutionally protected activity, including speech. RCW 10.14.020(1). However,
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No. 51217-3-II
harassment is not protected speech. In re Marriage of Meredith, 148 Wash. App. 887, 899, 201
P.3d 1056 (2009).
B. Harassment
Grover first contends that the district court’s oral findings do not constitute “a finding” of
unlawful harassment for the purposes of RCW 10.14.080. Br. of Appellant at 32. The statute,
though, does not mandate the entry of written findings, and in the absence of written findings an
appellate court generally may look to an oral opinion to determine the basis for the court’s
resolution of an issue. In re Marriage of Griffin, 114 Wash. 2d 772, 777, 791 P.2d 519 (1990). Our
task is simply to determine “whether there was a factual basis for the antiharassment order.”
Noah, 103 Wash. App. at 39. We conclude that the transcript of the district court’s oral opinion
presents a sufficient factual expression to constitute “a finding” of harassment.
Grover next argues that his conduct could not be harassment because it was not “directed
at” Littleton, since his blog posts were directed at his customers. Br. of Appellant at 33.
Littleton counters that the harassment statute’s “course of conduct” definition includes
“communications to third parties or the public at large that were directed at harassing the
victim.” CP at 280. The district court concluded that although the blog purported to be directed
at Grover’s customers, there was “no question that this [was] directed specifically at Ms.
Littleton.” CP at 241.
Littleton points to State v. Becklin, in which our Supreme Court concluded that the
statute’s plain language and legislative history “suggest that the definition of conduct amounting
to harassment is very broad and could include the manipulation or direction of third parties to
achieve the intended emotional distress.” 163 Wash. 2d 519, 528, 182 P.3d 944 (2008). Becklin
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No. 51217-3-II
involved a course of conduct in which the defendant directed his friends to follow and intimidate
his ex-girlfriend, which the court held to fall under the purview of the statutory definition of
“course of conduct.”2 Id. at 523, 528-29.
Littleton argues that this case is analogous because the blog posts urged customers to
complain and take legal action against Littleton and TTL. The blog told readers, “Contact your
State Attorney General’s Office to file a complaint and hope to receive some type of financial
restitution before [TTL and another business partner] go out of business.” CP at 342. It also
stated at another point that “[b]elow is important information and evidence for consumers who
are looking for financial restitution, and who are seeking litigation against Twice the Light.” CP
at 297.
Although the actions urged by Grover’s blog were of a smaller scale than the intimidation
Becklin orchestrated, they still fall under the Becklin court’s holding that the statute prohibits
“directing or manipulating others to harass the victim.” 163 Wash. 2d at 530. It is clear from the
record that Grover’s e-mails and blog posts were ultimately directed at having an effect on
Littleton, in part through eliciting others to complain and take legal action against her. Hence,
the district court did not err in concluding that Grover’s course of conduct was “directed at”
Littleton because his actions evidenced a “continuity of purpose” to harass her. See RCW
10.14.020(2); CP at 240-43.
Grover also argues that the blog served a legitimate and lawful purpose, because it was a
business response to Littleton’s actions intended to inform customers about which party was
2
Although Becklin dealt with Washington’s criminal stalking statute, that statute references the
civil harassment statute’s definition of “course of conduct.” RCW 9A.46.110; RCW 10.14.020.
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No. 51217-3-II
responsible for the warranties. In determining whether a course of conduct serves any legitimate
or lawful purpose, the trial court should consider whether:
(1) Any current contact between the parties was initiated by the respondent only or
was initiated by both parties;
(2) The respondent has been given clear notice that all further contact with the
petitioner is unwanted;
(3) The respondent’s course of conduct appears designed to alarm, annoy, or harass
the petitioner;
(4) The respondent is acting pursuant to any statutory authority, including but not
limited to acts which are reasonably necessary to [protect property or liberty
interests];
(5) The respondent’s course of conduct has the purpose or effect of unreasonably
interfering with the petitioner’s privacy or the purpose or effect of creating an
intimidating, hostile, or offensive living environment for the petitioner;
(6) Contact by the respondent with the petitioner or the petitioner’s family has been
limited in any manner by any previous court order.
RCW 10.14.030.
The district court in this case orally went through these factors, finding: (1) the current
contact between the parties was initiated by Grover, (2) Grover was given clear notice that all
further contact with Littleton was unwanted through a cease and desist letter, (3) Grover’s course
of conduct was directed at Littleton and appeared designed to alarm or harass her, (4) although
the majority of the blog legitimately seeks to protect Grover’s business interests, Grover’s use of
Littleton’s and others’ personal information was not pursuant to any statutory authority and not
reasonably necessary to protect his property or liberty interests, and (5) Grover’s “personal
vendetta” against Littleton had the purpose of creating an intimidating, hostile, or offensive
living environment.3 CP at 239-43; RCW 10.14.030.
3
The sixth factor, dealing with contact with the petitioner’s family, was not relevant in this case.
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No. 51217-3-II
The district court accordingly found that, although the majority of the blog served a
legitimate purpose, the specific instances of harassing conduct did not. The court focused
specifically on the Defcon 1 e-mail, posting of personal and banking information, posting of
private e-mails not intended for Grover, and sending that information to third parties with whom
Littleton had a longstanding professional relationship as the conduct that served no legitimate
purpose. Grover is correct that because the blog itself serves a legitimate purpose, it would be
improper for the court to take it down or prohibit him from posting to it. But the blog as a whole
is not what the court found to be the “course of conduct” directed at Littleton, nor was it the basis
for the order.
We conclude that there was substantial evidence that Grover’s course of conduct served
no legitimate or lawful purpose. The district court methodically considered each of the factors
listed in RCW 10.14.030. Evidence was presented that Grover shared Littleton’s private e-mails
and personal and banking information with third parties, urged readers to bring legal action
against her, and sent her the Defcon 1 e-mail. This is substantial evidence supporting the court’s
findings that Grover’s actions constituted a course of conduct directed at Littleton with the
purpose of harassing her and creating a hostile living environment.
It is not for us to second guess the court’s credibility determinations. In re Marriage of
Wilson, 165 Wash. App. 333, 340, 267 P.3d 485 (2011). As set out above, the record supplies
substantial evidence that Grover’s conduct was indeed directed at Littleton, that Grover’s
purpose was to harass her, and that she suffered emotional distress as a result. See RCW
10.14.020(2). We hold that the district court did not abuse its discretion in finding that Grover
committed unlawful harassment.
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No. 51217-3-II
C. Limited-Purpose Public Figure
Grover also claims that Littleton is a limited-purpose public figure, and so is afforded less
protection in this context than a general member of the public. We disagree.
“[T]he designation of a person as a ‘public figure’ results in a decrease of the protections
against invasions of privacy and defamation of character provided by law.” Tilton v. Cowles
Publ’g Co., 76 Wash. 2d 707, 716, 459 P.2d 8 (1969). The purpose of these and related doctrines is
to provide needed “‘breathing space’” to the freedoms of speech and the press guaranteed by the
First Amendment. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed.
2d 789 (1974) (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 8 L. Ed. 2d 405
(1963)); Tilton, 76 Wash. 2d at 714-16. Although neither party presented authority that this
doctrine applies equally to harassment, for the purposes of this analysis we will assume that it
does.
A person can become a public figure for “a limited range of issues” when she
“voluntarily injects [her]self or is drawn into a particular public controversy.” Gertz, 418 U.S. at
351. Washington follows a five-part balancing test for identifying limited public figures. The
test considers whether:
“(1) the plaintiff had access to channels of effective communication; (2) the
plaintiff voluntarily assumed a role of special prominence in the public controversy;
(3) the plaintiff sought to influence the resolution or outcome of the controversy;
(4) the controversy existed prior to the publication of the defamatory statement; and
(5) the plaintiff retained public-figure status at the time of the alleged defamation.”
Clardy v. Cowles Publ’g Co., 81 Wash. App. 53, 60, 62, 912 P.2d 1078 (1996) (quoting Foretich v.
Capital Cities/ABC, Inc., 37 F.3d 1541, 1553 (4th Cir. 1994)).
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No. 51217-3-II
The record before us makes clear that this dispute is not a “public controversy,” and it
does not show that any of these factors describe Littleton or her role in this dispute. We
accordingly hold that Littleton is not a limited purpose public figure.
III. FREE SPEECH
Grover argues that the anti-harassment protection order is an unconstitutional prior
restraint on his right to free speech. Littleton argues that the order is not a prior restraint at all,
but rather a post-publication civil sanction. We agree with Littleton that the order is not a prior
restraint, but hold that it is a content-based restriction subject to strict scrutiny. We conclude that
it fails strict scrutiny because the challenged restrictions are not narrowly tailored to serve a
compelling state interest.
A. Standard of Review
We review constitutional challenges de novo. In re Marriage of Suggs, 152 Wash. 2d 74,
79, 93 P.3d 161 (2004).
B. Prior Restraint vs. Post-Publication Sanction
1. Federal Constitution
The United States Supreme Court defines “prior restraints” as “‘administrative and
judicial orders forbidding certain communications when issued in advance of the time that such
communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 2766,
125 L. Ed. 2d 441 (1993) (emphasis omitted) (quoting M. Nimmer, Nimmer on Freedom of
Speech, § 4.03, at 4-14 (1984)). Temporary restraining orders and permanent injunctions—i.e.,
court orders that actually forbid speech activities—are classic examples of prior restraints. Id.
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No. 51217-3-II
The Supreme Court first enunciated the prior restraint doctrine in Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). Near struck down a statute
prohibiting malicious, scandalous, and defamatory publications as an impermissible prior
restraint. Id. at 702, 722-23. In doing so, the Court noted the important distinction between prior
restraint and subsequent punishment, observing that libel laws were the appropriate means of
regulating expression. Id. at 715.
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). To overcome that presumption,
[a]n 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, 252, 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.
Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 183-84, 89 S. Ct. 347, 21 L.
Ed. 2d 325 (1968).
In Organization for a Better Austin v. Keefe, the Court struck down an injunction that
prohibited publication “of any kind” that criticized the business practices of a real estate broker.
402 U.S. 415, 419-20, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971). Keefe compared that injunction to
the statute in Near, concluding that “[h]ere, as in that case, the injunction operates, not to redress
alleged private wrongs, but to suppress, on the basis of previous publications, distribution of
literature ‘of any kind’ in a city of 18,000.” Id. at 418-19. The Court noted that “[n]o prior
decisions support the claim that the interest of an individual in being free from public criticism of
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No. 51217-3-II
his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.”
Id. at 419.
In contrast to Keefe, in Bering v. SHARE, our Supreme Court concluded that an
injunction prohibiting picketers of a medical clinic offering abortion services from using certain
words was not a prior restraint under federal law. 106 Wash. 2d 212, 235, 721 P.2d 918 (1986).
The court noted two important distinctions between that injunction and the injunction in Keefe.
First, unlike in Keefe, the only purpose of the plaintiffs in Bering in seeking the order was to
“‘redress alleged private wrongs’” suffered by the physicians and patients of the clinic as a result
of the picketers’ extreme language and conduct. Id. (quoting Keefe, 402 U.S. at 418-19).
Second, the injunction did not suppress speech “of any kind,” but rather particular words that the
trial judge feared would have an adverse effect on young children visiting the clinic. Id. Hence,
the court held that the injunction was “not the classic prior restraint described in Near or Keefe,
and the doctrine of prior restraint should not be applied to this case.” Id.
The same distinctions are present here. First, Littleton’s only purpose in seeking the
order was to “redress [the] alleged private wrong” of Grover’s harassing conduct. Second, the
order does not suppress speech “of any kind,” but rather targets only the blog posts the trial court
deemed to constitute harassment and leaves Grover free to post to his blog, including his
criticisms of Littleton’s business practices. For these reasons, following our Supreme Court’s
interpretation of the First Amendment, we conclude that this order is not a prior restraint under
federal law.
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No. 51217-3-II
2. Washington Constitution
Article I, section 5 of the Washington Constitution “‘categorically rules out prior
restraints on constitutionally protected speech under any circumstances.’” Voters Educ. Comm.
v. Pub. Disclosure Comm’n, 161 Wash. 2d 470, 493-94, 166 P.3d 1174 (2007) (quoting O’Day v.
King County, 109 Wash. 2d 796, 804, 749 P.2d 142 (1988)). In Bering, our Supreme Court
distinguished between disfavored prior restraints and more acceptable post-publication civil
sanctions. While prior restraints “prohibit exercise of the right before any abuse of the right can
be shown,” post-publication sanctions “simply prohibit further exercise of the right after a
showing of abuse.” Bering, 106 Wash. 2d at 243. Post-publication sanctions can accordingly be
imposed consistent with article I, section 5, so long as they are narrowly drawn to serve a
compelling state interest. Id. at 243-45.
In Meredith, we concluded that a restraining order preventing Meredith from contacting
any government agency about his wife’s immigration status was a prior restraint, rather than a
permissible post-speech restriction, because the trial court had not found that Meredith had
abused his right to speak by attempting to have his wife deported. 148 Wash. App. at 897.
Instead, the trial court based its order on the fact that Meredith was not acting in their daughter’s
best interest, since she could have been deported along with her mother. Id. Thus, the order
restricting Meredith’s future speech was not based on an underlying showing of abuse of the
right to free speech.
In this case, on the other hand, the district court issued the order directly in response to
Grover’s unprotected harassing speech. Littleton demonstrated to the district court’s satisfaction
that Grover’s posts of her e-mails, personal information, and banking information constituted
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No. 51217-3-II
harassment. The resulting anti-harassment protection order was crafted specifically to address
those posts and thus was clearly designed to “prohibit further exercise of the right after a
showing of abuse.” Bering, 106 Wash. 2d at 243. Indeed, the order explicitly commands Grover to
“remove prior posts in violation of these terms.” CP at 245. Like the injunction in Bering, the
order was imposed “after actual publication and only to prevent further harm” to Littleton.
Bering, 106 Wash. 2d at 243.
We accordingly hold that under state law the order is a post-publication sanction, not a
prior restraint.
C. Strict Scrutiny
Because the order is a content-based restriction on Grover’s speech, the proper lens for its
analysis is strict scrutiny. United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, 120 S.
Ct. 1878, 146 L. Ed. 2d 865 (2000); Collier v. City of Tacoma, 121 Wash. 2d 737, 748-49, 854 P.2d
1046 (1993). Our inquiry under both federal and state law is whether the order serves a
compelling state interest and is narrowly tailored to serve that interest. Citizens United v. Fed.
Elections Comm’n, 558 U.S. 310, 340, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010); Bering, 106
Wash. 2d at 237.4
“Protecting citizens from harassment is a compelling state interest.” Noah, 103 Wash. App.
at 41. It is clear the order satisfies the first prong of strict scrutiny.
To be narrowly tailored, a regulation “need not be the least restrictive or least intrusive
means” of serving the government’s interest. Ward v. Rock Against Racism, 491 U.S. 781, 798-
4
Although Bering uses the term “narrowly drawn” instead of “narrowly tailored,” we see no
meaningful difference in applicable case law between the two phrases.
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No. 51217-3-II
99, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). Nevertheless, it must not “burden substantially
more speech than is necessary to further the government’s legitimate interests.” Id. at 799. A
restriction “is narrowly tailored if it targets and eliminates no more than the exact source of the
‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485, 108 S. Ct. 2495, 101 L. Ed. 2d
420 (1988) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808-10,
104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984)).
Grover argues that the order impermissibly restricts his commercial speech rights. It is
true that a court order cannot validly restrict Grover from sharing opinions and facts about
Littleton’s business practices. Keefe, 402 U.S. at 419. However, that is not what the district
court ordered in this case. Unlike the injunction in Keefe, which prohibited an organization
“from passing out pamphlets, leaflets or literature of any kind,” the order here continues to allow
Grover to publish blog posts and criticize Littleton’s business practices,5 so long as he does not
publish the specific information that the court found to constitute harassment. Id. at 417.
Because protecting Littleton from harassment is a compelling state interest, the order as a whole
does not fail strict scrutiny for this reason. See Noah, 103 Wash. App. at 41.
However, some of the order’s individual restrictions are not narrowly drawn to serve the
state’s interest in preventing harassment. Specifically, the prohibition on posting “personal
information and pictures” of Littleton is not narrowly drawn to protect Littleton from
harassment, because that phrase could cover types of information that the district court did not
find to constitute harassment. That phrase, for example, could prevent Grover from posting the
5
Indeed the district court specifically noted, “I’m not requiring that the blog be taken down, nor
am I limiting his ability to post.” CP at 244.
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No. 51217-3-II
legitimate criticism of Littleton that the order purports to permit, because “personal information”
could potentially cover such innocuous details as Littleton’s name or profession. The trial court
did not find that Grover misused Littleton’s personal information broadly, but rather that he
misused some of the sensitive information contained in the e-mails he should not have been
privy to. Hence, the broad proscription on using “personal information” targets and eliminates
“more than the exact source of the ‘evil’ it seeks to remedy.” Frisby, 487 U.S. at 485 (quoting
Taxpayers for Vincent, 466 U.S. at 808-10.)
Furthermore, in its finding of unlawful harassment, the trial court did not find that any
posting of Littleton’s picture was part of Grover’s harassing conduct. In fact, in its order on
Grover’s motion to reconsider, the district court specifically found that the YouTube video, the
one example of a time Grover posted a picture of Littleton, did not violate the order’s prohibition
of “personal information or pictures.” CP at 398. This clearly suggests that the posting of the
video was not part of the harassing course of conduct the court sought to enjoin. The restriction
on posting pictures of Littleton goes beyond the “‘evil’” the order intended to remedy, and so
was not narrowly tailored. Frisby, 487 U.S. at 485 (quoting Taxpayers for Vincent, 466 U.S. at
808-10).
The same is true of the prohibition on posting e-mails “regarding” Littleton that are “not
specifically addressed to” Grover. The order paints with broad strokes to prevent Grover from
posting any e-mails regarding Littleton not addressed to him, whether or not they bear the
characteristics of those e-mails that supported the district court’s finding of harassment. This
restriction could apply to e-mails that Grover otherwise would be within his rights to post,
thereby going beyond the “‘evil’” the order intended to remedy. Id. (quoting Taxpayers for
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No. 51217-3-II
Vincent, 466 U.S. at 808-10). For example, it would seemingly prohibit Grover from posting a
validly and legitimately obtained e-mail that only mentions or even praises Littleton. It also
could bar Grover from posting e-mails containing otherwise legitimate criticism of Littleton’s
business practices. Such e-mails would doubtfully fall within the harassing course of conduct
identified by the district court. Because this restriction prohibits more than the harassing
conduct, it is not narrowly tailored.
For these reasons, we hold that the restrictions on posting “personal information” and
“pictures of Littleton” and “emails obtained regarding [Littleton] or Twice the Light if not
specifically addressed to [Grover]” were not narrowly tailored to serve a compelling state
interest.6 CP at 108, 398. Thus, they fail strict scrutiny and are invalid.
D. Vagueness and Overbreadth
Grover also argues that the order’s restrictions on posting “personal information and
pictures” and “emails obtained regarding [Littleton] or Twice the Light if not specifically
addressed to” him are unconstitutionally vague and overbroad. Br. of Appellant at 27-28.
1. Vagueness
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct.
2294, 33 L. Ed. 2d 222 (1972). Laws must “give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly.” Id. To prevent
6
We note, however, that the prohibition on posting bank account information survives strict
scrutiny. Unlike the prohibitions discussed above, this restriction specifically targets only the
wrongful conduct without reaching protected speech. In this sense it does not “burden
substantially more speech than is necessary to further the government’s legitimate interest.”
Ward, 491 U.S. at 799.
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No. 51217-3-II
arbitrary and discriminatory enforcement, “laws must provide explicit standards for those who
apply them.” Id. Where a vague statute intersects with sensitive areas of basic First Amendment
freedoms, it “operates to inhibit the exercise of [those] freedoms.” Cramp v. Bd. of Pub.
Instruction of Orange County, Fla., 368 U.S. 278, 287, 82 S. Ct. 275, 7 L. Ed. 2d 285 (1961).
Hence, if a law interferes with the right of free speech, “a more stringent vagueness test should
apply.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct.
1186, 71 L. Ed. 2d 362 (1982).
Grover contends that the order’s restrictions on posting personal information, pictures,
and emails regarding Littleton or TTL that are not specifically addressed to him are
unconstitutionally vague. These provisions are the same ones that we hold violate strict scrutiny
and are invalid. Thus, it makes little sense and would provide no effective relief either to strike
these conditions as vague or to remand to the trial court to cure any vagueness in them,
especially when the order itself has expired. Although the appeal itself was not moot because of
the order’s expiration, we see no purpose in requiring the trial court to revise invalid conditions
in an expired order to avoid possible vagueness. For these reasons, we do not further analyze the
vagueness challenge.
2. Overbreadth
The overbreadth doctrine is an “exception from general standing rules [that] is based on
an appreciation that the very existence of some broadly written laws has the potential to chill the
expressive activity of others not before the court.” Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 129, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992). In other words, the
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No. 51217-3-II
rationale for the overbreadth doctrine is that it permits an individual whose own speech or
conduct may be prohibited
to challenge a statute on its face “because it also threatens others not before the
court—those who desire to engage in legally protected expression but who may
refrain from doing so rather than risk prosecution or undertake to have the law
declared partially invalid.”
Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.
Ct. 2568, 96 L. Ed. 2d 500 (1987) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491,
503, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985)).
Grover and his amici do not cite, and we have not located, any instances where this
doctrine has been applied to a court order designed only to proscribe the conduct of a single,
specific individual. Grover and his amici make no argument to justify why this exception from
general standing rules applies to his case when the restrictions he is protesting could not possibly
be applied to any other person not before the court. Moreover, the United States Supreme Court
has described overbreadth as “strong medicine,” employed “sparingly and only as a last resort.”
Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Because
Grover has done nothing to persuade us to employ this “strong medicine” in this case, we decline
the invitation.
CONCLUSION
We hold that (1) the appeal is not moot, (2) the trial court did not err in ruling that Grover
engaged in unlawful harassment under the statute, (3) the order was not an unconstitutional prior
restraint, and (4) certain elements of the order were not narrowly tailored to serve a compelling
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No. 51217-3-II
state interest and thus fail the applicable strict scrutiny test. Therefore, we hold that the
conditions failing strict scrutiny are invalid. We otherwise affirm the order.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Bjorgen, J.P.T.
We concur:
Maxa, C.J.
Lee, J.
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