S.D v. N.B

• Docket Number: 2022-0114
• Decision Date: 29 June 2023
• Parties: S.D v. N.B
• Court: New Hampshire Supreme Court

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S.D v. N.B

No. 2022-0114

Supreme Court of New Hampshire

June 29, 2023

Submitted: January 25, 2023

4th Circuit Court-Laconia District Division

S.D self-represented party, by brief.

N.B self-represented party, by brief.

American Civil Liberties Union of New Hampshire Foundation, of Concord (Gilles R. Bissonnette and Henry R. Klementowicz on the joint memorandum of law) and American Civil Liberties Union Foundation, of New York, New York (Brian Hauss, Sandra S. Park, and Elizabeth Gyori, on the joint memorandum of law), as amici curiae.

Dana Albrecht, by brief, as amicus curiae.

New Hampshire Legal Assistance (Mary Krueger, of Claremont, on the brief), as amicus curiae.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief), for the New Hampshire Coalition Against Sexual and Domestic Violence, National Network to End Domestic Violence, National Alliance to End Sexual Violence, Battered Women's Justice Project, and Victim Rights Law Center, as amici curiae.

HICKS J.

The defendant, N.B., appeals a final civil stalking protective order, see RSA 633:3-a (Supp. 2022), entered by the Circuit Court (Murray, J.) for the protection of the plaintiff, S.D. The defendant argues that: (1) the evidence was insufficient to support a finding that he stalked the plaintiff; and (2) the court's protective order violates his right to free speech under the First Amendment to the Federal Constitution. We affirm.

The following facts are set forth in the trial court's narrative order. The plaintiff and the defendant have known each other since high school, but never had a personal relationship. Sometime after high school, the defendant developed a fixation with the plaintiff. The plaintiff testified that the defendant began to contact her via the internet sometime in 2017. The defendant agreed that he had made postings regarding the plaintiff, but testified that they began in 2019. The postings about the plaintiff included sexual suggestions and threats.

The trial court held a final hearing on the stalking petition on February 8, 2022, and found that the defendant had stalked the plaintiff. In so ruling, the trial court found that the defendant had: (1) posted comments concerning the plaintiff on internet websites, including comments about watching the plaintiff and being sexually aroused, and desiring that the plaintiff be "gang banged, raped or shot"; (2) "created animated models resembling [the plaintiff] and posted them at various sites . . . including Twitter, Instagram, and a 'Deviant Art' website" using software the defendant had purchased to create the models; (3) identified some of the models with plaintiff's name, including a model of an adult naked woman; (4) posted a model depicting the plaintiff "being stabbed in the breast by another woman"; (5) posted a model depicting the plaintiff "being choked by a police officer"; (6) created a profile on a dating website using the plaintiff's name and uploaded models resembling the plaintiff to that profile; and (7) posted "actual pictures" of the plaintiff that the defendant had obtained from the plaintiff's social media pages. The final order, in effect from February 10, 2022 to February 9, 2023, included a number of standard protective orders, and also stated:

Defendant shall not mention Plaintiff on any social media and shall not post any images of Plaintiff including pictures of models represented to be Plaintiff. Defendant shall immediately make best efforts to remove Plaintiff's name and/or image from any social media or internet posting he has made or maintained. ....

Defendant shall not post Plaintiff's name or any photograph or representation of her on the internet.

The defendant timely appealed. We solicited amicus briefs or memoranda from interested persons on whether the above-quoted restraining order provisions, under the circumstances of this case, violate the defendant's right to free speech.

We note that the protective order remained in effect until February 9, 2023, which date has now passed. We have not been notified whether the order of protection was extended for another year or has expired without renewal. Nevertheless, the appeal is not moot, even if the order of protection is no longer in effect. See State v. Luwal, 175 N.H. 467, 470 (2022) (Mootness "is not subject to rigid rules, but is a matter of convenience and discretion. A case may not be moot if it presents legal issues that are of pressing public interest and are capable of repetition yet evading review." (quotation and citation omitted)). This appeal presents a question of pressing public interest, that is, the extent to which the First Amendment places limits on the scope of a protective order restricting a defendant's online activity.

Before turning to the constitutional question, we address the defendant's argument that the evidence was insufficient to support a finding that he had stalked the plaintiff. We review sufficiency of the evidence claims as a matter of law and uphold the findings and rulings of the trial court unless they are lacking in evidentiary support or are erroneous as a matter of law. See Fisher v. Minichiello, 155 N.H. 188, 190 (2007). Determining whether the trial court's findings are supported by the evidence requires a review of the transcript, and it is the burden of the appealing party, here the defendant, to provide this court with a record sufficient to decide his issues on appeal. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004); see also Sup. Ct. R. 15(3) ("If the moving party intends to argue in the supreme court that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the moving party shall include in the record a transcript of all evidence relevant to such finding or conclusion."). The defendant did not provide a transcript of the final hearing on the stalking petition. Absent a transcript, we must assume that the evidence was sufficient to support the trial court's determination that the defendant stalked the plaintiff. See Bean, 151 N.H. at 250.

We now consider whether the above-quoted restraining order provisions, under the circumstances of this case, violate the defendant's rights under the First Amendment to the United States Constitution. We review questions of constitutional law de novo. City of Keene v. Cleaveland, 167 N.H. 731, 737 (2015). We begin by reviewing the law that governs the issuance of civil stalking protective orders in New Hampshire, then consider the principles that govern regulations of free speech, and then apply those principles to the provisions of the civil stalking order.

The legislature enacted RSA 633:3-a, which is contained in the New Hampshire Criminal Code, to protect individuals from "domestic violence and problems of like gravity, such as threatening strangers and obsessive former lovers and in recognition of the fact that harassing and threatening behaviors toward innocent people is a serious problem." State v. Craig, 167 N.H. 361, 376 (2015) (quotations and brackets omitted). RSA 633:3-a provides that a person who has been the victim of stalking may file a civil petition in the district division of the circuit court where either he or she or the defendant resides, seeking relief available under RSA chapter 173-B, including a protective order. See Fisher, 155 N.H. at 190; RSA 633:3-a, III-a; RSA 173-B:4,:5 (2022).

To obtain the relief requested, the plaintiff must prove "stalking" by a preponderance of the evidence. RSA 633:3-a, III-a. RSA 633:3-a, I, provides, in relevant part, that a "person commits the offense of stalking" if he or she:

(a) Purposely, knowingly, or recklessly engages in a course of conduct targeted at a specific person which would cause a reasonable person to fear for his or her personal safety or the safety of a member of that person's immediate family, and the person is actually placed in such fear; [or]

(b) Purposely or knowingly engages in a course of conduct targeted at a specific individual, which the actor knows will place that individual in fear for his or her personal safety or the safety of a member of that individual's immediate family ....

The statute defines "course of conduct" as "2 or more acts over a period of time . . . which evidences a continuity of purpose," and states that it may include, but is not limited to, any of the following acts or some combination of the following acts:

(1) Threatening the safety of the targeted person or an immediate family member.

(2) Following, approaching, or confronting that person, or a member of that person's immediate family.

(3) Appearing in close proximity to, or entering the person's residence, place of employment, school, or other place where the person can be found, or the residence, place of employment or school of a member of that person's immediate family.

(4) Causing damage to the person's residence or property or that of a member of the person's immediate family.

(5) Placing an object on the person's property, either directly or through a third person, or that of an immediate family member.

(6) Causing injury to that person's pet, or to a pet belonging to a member of that person's immediate family.

(7) Any act of communication, as defined in RSA 644:4, II.

RSA 633:3-a. RSA 644:4, II defines "communicates" as follows:

to impart a message by any method of transmission, including but not limited to telephoning or personally delivering or sending or having delivered any information or material by written or printed note or letter, package, mail, courier service or electronic transmission, including electronic transmissions generated or communicated via a computer. For purposes of this section, "computer" means a programmable, electronic device capable of

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