Gina M. Childs v. Robert A. Ballou Jr.

Citations: 2016 ME 142; 148 A.3d 291; 2016 Me. LEXIS 157

Court: Supreme Judicial Court of Maine; September 13, 2016; Maine; State Supreme Court

Original Court Document: View Document

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Robert A. Ballou Jr. appeals a District Court judgment granting Gina M. Childs a two-year extension of a protection from abuse order. Ballou contends that the order's restrictions on his communication with Childs infringe upon his First Amendment rights. The court affirms the judgment.

Childs and Ballou were married in 2007 and had a son in 2008. Following Childs' divorce filing in 2010, she sought a protection order, which was granted by agreement without a finding of abuse; this order expired in 2012. Childs filed a new complaint for protection from abuse in August 2013, resulting in another agreement-based order that restricted contact to email concerning their son and allowed emergency contact only through a designated third party. This order was set to expire in August 2015.

On August 11, 2015, Childs requested an extension of the 2013 order. Following a contested hearing, the court prohibited all direct or indirect contact between Ballou and Childs, mandating that contact regarding their child be managed through a third party. Ballou's subsequent motions for findings of fact and for reconsideration were denied, although the court provided additional factual findings.

Key findings indicated that by 2013, Ballou frequently visited Childs' home despite her objections. Childs reported several emails from Ballou in 2014 that she believed violated the protection order, which included non-child-related accusations and requests to relax the order. Additionally, Ballou repeatedly asked law enforcement for "well-being checks" on their son, but was later informed that these requests would no longer be accommodated due to his behavior. Ballou faced separate charges of domestic violence stalking and violating the protective order, which were to be dismissed if he agreed to modify the order, but this modification did not occur for unspecified reasons.

Email messages admitted at trial were extensive and contentious, involving issues related to the child and allegedly violating a protection order. The court concluded that extending the 2013 protection order was necessary due to ongoing fears expressed by Childs, supported by evidence of Ballou's inundating communications, including hundreds of text messages daily and lengthy, aggressive emails. The court found Ballou's dismissal of Childs’s safety concerns to be not credible and classified his repeated inquiries about the child's well-being as stalking. Ballou appealed the decision, arguing that the extension violated his First Amendment rights by restricting non-threatening communications and penalizing his right to petition. However, he did not raise this First Amendment issue during the hearing or post-judgment motions, leading to a review solely for obvious error affecting substantial rights. The court highlighted the statutory framework for issuing and extending protection orders, which allows extensions for up to two years based on the need to protect the plaintiff from abuse defined as causing fear of bodily injury among family members. Ballou’s appeal challenged the court’s application of this statute, asserting a violation of his First Amendment rights, which are protected under both the U.S. and Maine Constitutions.

The right to freedom of speech, protected by the First Amendment and applicable to states through the Fourteenth Amendment, is recognized as fundamental but not absolute. Certain classes of speech, such as true threats and conduct intended to harass or harm others, do not receive First Amendment protection. Courts have greater authority to regulate speech that strays from values of persuasion and dialogue toward threats or illegal acts. As a result, speech that intimidates or instills fear is not constitutionally protected. Harassment, defined as a course of conduct intended to torment or threaten another, is also excluded from First Amendment protections. The determination of whether speech constitutes a true threat or harassment is a factual issue for the courts. The document notes that the application of the First Amendment concerning restraining orders on communication has not been directly addressed in this context.

Certain communications issued in advance of their occurrence are subject to a "heavy presumption against [the] constitutional validity" of prior restraints on speech. While the First Amendment protects speech, it does not extend to communications made with unjustifiable motives, such as harassment. Conduct involving constant surveillance and intrusive presence is also deemed unwarranted and unprotected. Courts have established that if past conduct has been adjudicated illegal or tortious, future conduct can be constitutionally enjoined, especially in cases involving restraining orders against threatening communications to those in immediate danger of domestic abuse. 

Examples include a California case where a protection order was upheld against a man who shared embarrassing information about his girlfriend, and an Oklahoma case confirming the revocation of a suspended sentence for violating a no-contact order under the state's Protection from Domestic Abuse Act. Similarly, the Vermont Supreme Court affirmed a conviction for violating an abuse prevention order when threats of violence were made. However, a Washington case found a prior restraint unconstitutional when it limited a police officer’s ex-wife from making complaints designed to annoy him without lawful purpose. 

Establishing that no restraining orders can be imposed after abuse and harassment would leave victims without necessary protection against further intrusions, contradicting First Amendment principles.

Defendant lacks First Amendment protection for unwanted and harassing contact with another individual. The court evaluates whether the imposed restraint is a constitutional limitation on abusive conduct. Evidence indicated that Ballou's actions exceeded simple expressions of concern for his child, demonstrating a pattern of excessive and intimidating communications, including numerous messages and intrusive behavior towards Childs. His conduct, characterized by harassment and stalking, does not fall under First Amendment protections. The court underscored that legitimate complaints do not justify tormenting or harassing behavior, which aligns with the stalking statute's definition of actions causing emotional distress. A protection from abuse order can be issued based on findings of stalking, independent of definitions of abuse. Ballou’s argument that his emails did not constitute a direct threat fails, as the cumulative effect of his communications indicated a serious threat to Childs. The court's conclusions about his communications as evidence of threatening behavior were upheld.

Ballou's history of sending aggressive messages and breaching protection orders, which included involving law enforcement in a manner that instilled fear of bodily harm and emotional distress, justified the court's order prohibiting any direct or indirect contact with Childs. Contact must be managed through a third party. The First Amendment does not protect the conduct that led to this ruling, and the court's decision did not infringe upon constitutional rights. It is established that legal consequences can arise from communications deemed to exhibit criminal intent to harass or intimidate, emphasizing that the right to petition does not grant immunity for unlawful actions. Although Ballou was not criminally charged for stalking due to an unfulfilled agreement with the prosecutor, the court found his actions constituted stalking. The court's judgment is affirmed with no identified errors in its conclusions.