IN RE MARRIAGE OF SUGGS

• Decision Date: 08 July 2004
• Docket Number: No. 73892-1.,73892-1.
• Citation: 93 P.3d 161,152 Wash.2d 74
• Parties: In the Matter of the MARRIAGE OF Shawn S. SUGGS, Petitioner, and Andrew O. Hamilton, Respondent.
• Court: Washington Supreme Court

93 P.3d 161

152 Wash.2d 74

In the Matter of the MARRIAGE OF Shawn S. SUGGS, Petitioner, and

Andrew O. Hamilton, Respondent.

No. 73892-1.

Supreme Court of Washington, En Banc.

Argued February 12, 2004.

Decided July 8, 2004.

Aaron Caplan, ACLU of Washington, Seattle, Steven Bogdon, Vancouver, for Petitioner.

John Hays, Longview, for Respondent.

Alice M. Ostdick, Seattle, for Amicus Curiae (Northwest Women's Law Center.)

FAIRHURST, J.

The trial court issued an order for protection from unlawful civil harassment restraining petitioner from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." Clerk's Papers (CP) at 415 (capitalization omitted). The Court of Appeals affirmed. We reverse on the ground that this antiharassment order is an unconstitutional prior restraint on speech.

I. FACTS

Five years after their acrimonious dissolution, respondent Andrew Hamilton¹ filed a petition for an order for protection (unlawful harassment) against petitioner Shawn Suggs. Hamilton's declaration in support of the order alleged the following 11 incidents he believed constituted unlawful harassment:²

1. Suggs' husband informed the Cowlitz County Sheriff that he was concerned Hamilton would harm Suggs because of his past practice and because he carried a gun.

2. Suggs' husband informed the Cowlitz County Prosecutor that he was concerned Hamilton may harm him and Suggs.

3. Suggs told the Kelso City Manager that Hamilton was breaking the law and explained the allegations asserted in the petition for order for protection³ she filed against Hamilton.

4. Suggs informed an emergency support shelter that Hamilton was harassing her and that she needed protection.

5. Suggs informed the finance department of the Kelso Police Department that Hamilton had a business license and questioned how a police officer could have a business license. She left a voice mail on Hamilton's business line providing her name and telephone number then left a message on his home answering machine denying that she left the message on his business line.

6. Suggs informed a person at the community action program that she needed legal aid but first needed to know whether the person she was speaking with knew Hamilton or his new wife.

7. Suggs informed the domestic violence unit of the Longview Police Department that she wanted to file charges against Hamilton because he was harassing her.

8. Hamilton believed that Suggs contacted the Federal Bureau of Investigation about him.

9. Suggs wrote a letter to the editor of The Daily News suggesting that Hamilton harassed her.

10. Suggs sent a letter to Hamilton addressed to "Andrews Hamilton."

11. A court sanctioned Suggs $500 for violating the parties' parenting plan and ordered her to pay the sanction via deductions from Hamilton's monthly child support payments. Upon receiving the first reduced child support payment, Suggs contacted the office of support enforcement to complain.

The trial court granted Hamilton's petition and permanently restrained Suggs from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." Id. at 415 (capitalization omitted). The trial court denied Suggs' motion for reconsideration.

Suggs appealed, alleging that the antiharassment order was an unconstitutional prior restraint on speech, Hamilton failed to prove unlawful harassment by a preponderance of the evidence, Hamilton did not suffer actual substantial emotional distress, the trial court erred in making the antiharassment order permanent, and she was entitled to immunity and fees under former RCW 4.24.510 (1999). Suggs v. Hamilton, noted at 116 Wash.App. 1016, 2003 WL 1298665, at 4-5, 7-8 (2003). The Court of Appeals affirmed the antiharassment order and denied immunity and fees in an unpublished decision. Id. at 4, 8. It held that the antiharassment order was a constitutional prior restraint because it restrained unprotected libelous speech. Id. at 4-5. We granted the petition for review. Suggs, Hamilton, 150 Wash.2d 1009, 79 P.3d 446 (2003).

II. ISSUE

Is the antiharassment order an unconstitutional prior restraint on speech?

III. STANDARD OF REVIEW

This court reviews constitutional challenges de novo. Shoop v. Kittitas County, 149 Wash.2d 29, 33, 65 P.3d 1194 (2003).

IV. ANALYSIS

Chapter 10.14 RCW prohibits unlawful harassment. "`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(1). Although "`[c]ourse of conduct'" includes "any other form of communication, contact, or conduct," "[c]onstitutionally protected activity" is not within its ambit. RCW 10.14.020(2). Moreover, the harassment chapter may not be used "to infringe upon any constitutionally protected rights including, ... freedom of speech." RCW 10.14.190.

Suggs contends that the antiharassment order violates her freedom of speech because it is an unconstitutional prior restraint. In doing so, she argues that article I, section 5 of the Washington Constitution provides greater protection against prior restraints than the first amendment to the United States Constitution. Article I, section 5, prohibits prior restraints against protected speech but permits prior restraints against unprotected speech. State v. Coe, 101 Wash.2d 364, 374, 679 P.2d 353 (1984). Whether our state constitution affords greater protection to the sort of speech restrained by the antiharassment order is determined by the factors enumerated in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986). Ino Ino, Inc. v. City of Bellevue, 132 Wash.2d 103, 114-15, 937 P.2d 154, 943 P.2d 1358 (1997) (citing Gunwall, 106 Wash.2d at 58, 720 P.2d 808). Where, as here, the parties failed to brief the Gunwall factors, this court will not consider a claim that our state constitution affords greater protection. State v. Dhaliwal, 150 Wash.2d 559, 575-76, 79 P.3d 432 (2003).⁴

Accordingly, we turn to federal case law to determine whether the antiharassment order is an unconstitutional prior restraint. The United States Supreme Court defines prior restraints as

`[A]dministrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' M[elville B.] Nimmer, Nimmer on Freedom of Speech[: A Treatise on the Theory of the First Amendment] § 4.03, p. 4-14 (1984).... Temporary restraining orders and permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints.

Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). This antiharassment order is a prior restraint because it forbids Suggs' speech before it occurs; it forbids her from "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming Andrew O. Hamilton and for no lawful purpose." CP at 415 (capitalization omitted).

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). In Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) the United States Supreme Court declared that prior restraints are permissible only in exceptional cases such as war, obscenity, and "incitements to acts of violence and the overthrow by force of orderly government." 283 U.S. at 716, 51 S.Ct. 625.

The Court again considered the constitutionality of limiting certain types of speech in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). The trial court found Chaplinsky guilty of violating a state statute prohibiting persons from uttering offensive, derisive or annoying words, calling another person offensive or derisive names, or making any noise or exclamation in another's "`presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.'" Chaplinsky, 315 U.S. at 569,62 S.Ct. 766 (quoting 1926 N.H. Laws, ch. 378, § 2). Chaplinsky argued that the statute was an unreasonable restraint on his freedom of speech. Id. The Court disagreed, finding that the statute prohibits fighting words — words that are not protected by the First Amendment. Id. at 573, 62 S.Ct. 766. In dicta, the Court provided a laundry list of "certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem". Id. at 571-72, 62 S.Ct. 766. Included in the list was libelous, lewd, and obscene speech. Id.

Hamilton successfully argued to the Court of Appeals that this antiharassment order is a constitutional prior restraint because it restrains libelous speech — speech included in the Chaplinsky list. Suggs, 116 Wash.App. 1016, 2003 WL 1298665, at *5. In doing so, both Hamilton and the Court of Appeals cite a footnote from a Washington Court of Appeals decision explaining that "[l]ibelous speech is not protected and, therefore, may be a basis for an antiharassment order." State v. Noah, 103 Wash.App. 29, 39 n. 1, 9 P.3d 858 (2000).

Reliance on this footnote statement is misplaced for four reasons. First, Noah itself acknowledged that the statement was dicta; the statement is immediately followed with "[n]onetheless, we will exclude it from our consideration." Id. Second, unlike the current case, the plaintiff in Noah also filed a defamation suit for damages. Id. at 37, 9 P.3d...