Maine Supreme Court – Facebook Posts May Constitute a Communication in Violation of Protection Order


Richard Heffron III was subject to a "protection from abuse" order that prohibited him “from having any contact, direct or indirect,” with the protected person with whom he once had a relationship. 

He was convicted of violating that order by making posts that began with the phrase, “Hey, [protected person’s name],” and directly addressed the protected person by using the second-person “you.” For example, in one of the posts, Heffron stated, “IM GONNA RUN YOU DOWN EVERY CHANCE I CAN TODAY AND TOMORROW AND THE NEXT DAY AND THE NEXT.”

Heffron appealed his conviction, asserting that (i) the posts did not constitute “direct or indirect” contact with the protected person; (ii) he did not have sufficient notice that the posts were prohibited conduct; and (iii) the posts were a protected form of speech. 

The Maine Supreme Court affirmed his conviction.

Direct or Indirect Communications

The court noted that since Heffron’s posts used the protected person's name or referred to her directly, he “framed his posts as direct communications to that person.”

Also, Heffron knew that the protected person used Facebook, as they had once been Facebook “friends” and had “friends” in common. The protected person became aware of the posts when a shared “friend” showed screenshots to the protected person. The court found that by doing so, “Heffron used Facebook as an intervening agency or instrumentality for the purpose of making contact with the protected person.”

Lack of Notice of Prohibited Conduct

The court also rejected Heffron’s claim that he did not have sufficient notice that his posts were prohibited conduct. Because the court concluded that Heffron clearly intended to and ultimately succeeded in having contact with the protected person, “he cannot now successfully complain that he did not know that his conduct was [prohibited]."

First Amendment

The court also denied Heffron’s First Amendment claim, stating “courts do not violate a defendant’s First Amendment protections by issuing a protection from abuse order that prohibits him . . . from having any direct or indirect contact with the protected person where the defendant has a history of engaging in behavior that “would cause a reasonable person to fear bodily injury and suffer emotional distress . . . .” Simply put, “[t]he First Amendment does not serve as a shield to protect [Heffron] from the consequences of his harassing communications.”

Source:  Internet Law Center's Cyber Report