TM v. MZ

Citation326 Mich.App. 227,926 N.W.2d 900
Decision Date23 October 2018
Docket NumberNo. 329190,329190
Parties TM, Petitioner-Appellee, v. MZ, Respondent-Appellant.
CourtCourt of Appeal of Michigan (US)

TM in propria persona.

Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) for MZ.

Amici Curiae: The Smith Appellate Law Firm (by Michael F. Smith ) and the UCLA School of Law Scott & Cyan Banister First Amendment Clinic (by Eugene Volokh ) for the Pennsylvania Center for the First Amendment and Aaron H. Caplan.

Before: Riordan, P.J., and Fort Hood and Servitto, JJ.


Riordan, P.J.

This case returns to us on remand from our Supreme Court. When we originally heard this case, we dismissed the appeal for mootness. TM v MZ ,1 unpublished per curiam opinion of the Court of Appeals, issued January 19, 2017 (Docket No. 329190). The Supreme Court reversed, reasoning that "the mere fact that the instant [personal protection order (PPO) ] expired during the pendency of this appeal does not render this appeal moot," and remanded the case to us "for consideration on the merits." T.M. v. M.Z. , 501 Mich. 312, 320, 916 N.W.2d 473 (2018). Because the amended PPO was issued on the basis of respondent’s constitutionally protected speech and amounted to an unconstitutional prior restraint on his speech, we reverse the trial court.


Petitioner, TM, and respondent, MZ, are neighbors in Cottrellville Township, Michigan. Respondent is a former trustee of Cottrellville Township and petitioner also has had some involvement in local politics, presently as a member of the township’s Parks and Recreation Committee. She also has participated in successful recalls of respondent and the supervisor of Cottrellville Township.

Petitioner and respondent have an acrimonious past. Notably, respondent’s mother (with whom respondent lived) obtained a PPO against petitioner’s husband after he allegedly assaulted her. The impetus for this case was the highly inflammatory and negative series of comments respondent posted online about petitioner and her family. Respondent had posted negative comments about petitioner on Facebook and through private messaging applications as far back as 2014, but when the nature of these postings, in petitioner’s words, "escalated," she petitioned the trial court on July 27, 2015, for a PPO. In an attachment to the petition, petitioner identified eight dates on which respondent allegedly made derogatory comments about her and her family by way of posts on his own Facebook page, on public Facebook pages, or in private messages to undisclosed recipients. Specifically, the attachment stated:

Below are some of the instances where Respondent used the internet or a computer or other electronic medium to post both public and private messages for the purpose of terrorizing, frightening, intimidating, threatening, or harassing me.
July 6, 2015
Respondent made several comments on a post in the St. Clair County, Michigan page on Facebook, including but not limited to[:] calling me a criminal, accusing me of hiding criminals, having illegal trailers on my property, posting pictures of my yard, [stating] that I meet the requirements of "hurting someone" and that I’m a criminal.
July 6, 2015
Respondent sent a private Facebook message to multiple people, with regards to the above mentioned comments made on the St. Clair County, Michigan page, saying that I am criminal, I hide criminals, and saying things about the death of my son, which were not only derogatory and disgusting, but were complete lies, and how it was because of my parenting. These comments were in addition to other things.
May 4, 2015
Respondent posted on his Facebook page a picture of a car and a letter with a heading of "Attempted abduction in St. Clair Count [sic], Please share this Info!" Respondent then commented on the post that if there were any questions about the vehicle to join the St. Clair County, Michigan Facebook group.
Respondent also commented on this post that the driver of the vehicle "was involved in a form of attempted abduction of a child" and further down respondent commented "I actually saw a similar vehicle at [TM’s address], where it was there only a couple of minutes." This is my address.
Respondent also made a comment on the post about the car on the St. Clair County, Michigan Facebook page wherein he stated "a vehicle just like that was at [petitioner’s address] today ... It watched my home, and then pulled into [petitioners’s address]—an address notorious for everything from crime to severe ordinance violations that never go away. It was only there for a few minutes."
April 22, 2015Respondent made a comment on a post about a stolen bbq to "Go look at [petitioner’s address] ... It is a virtual junk yard of items picked up from the garbage of other[s]".
September 7, 2014
Respondent commented on a post in the St. Clair County, Michigan Facebook page about motorcycles stolen out of Auburn Hills, "... my neighbor is at [petitioner’s address]. ... I saw them burning parts and burying them illegally in the ground before. I will be on the lookout for you."
August 10, 2014
Respondent wrote a post on the Facebook Cottrellville Township, Michigan page that included stating we had a "junkyard" and "two illegal commercial trailers".
Respondent then made a comment on his post stating "... Bob confirmed there is [sic] severe blight and health violations at [petitioner’s address] ..."
Respondent later puts a comment on his post with a Court Case [identification] number to look me up in the court docket.
Respondent later comments on his post that I was taken to court and at one time had 12 vehicles in my front yard.
June 2, 2014
Respondent commented on a post on the St. Clair County, Michigan Facebook page saying that my yard is used as an "illegal junkyard" and posts the link to a video.
July 24, 2014
Respondent sent a message to a private citizen making derogatory comments including that "that family is into drugs."

Further, in a Facebook message to an undisclosed recipient on July 6, 2015, respondent shared his comments and opinions on petitioner’s parenting abilities, specifically accusing petitioner of allowing her children to partake of illegal drugs, and also discussed the alleged circumstances of her son’s death.

On July 28, 2015, the trial court granted petitioner’s petition and entered a PPO against respondent. The PPO prohibited respondent from "stalking [petitioner] as defined under MCL 750.411h and MCL 750.411i," and prohibited him from "posting a message [about petitioner] through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s" On August 3, 2015, respondent moved to terminate the PPO, arguing that petitioner merely was annoyed with his comments and that because there were no allegations of actual, threatened, or attempted violence, her proper remedy was a lawsuit for defamation. At the August 20, 2015 hearing on respondent’s motion, the trial court placed both parties under oath. Petitioner stated that, other than being his neighbor, she had no relationship with respondent, and she noted that in the online postings respondent said he was using binoculars to see what was going on in her yard, as well as taking pictures of her and her property, which made her fearful "as to why he is doing this." Petitioner stated that she found respondent’s conduct harassing and that she just wanted him to leave her and her family alone. Noting that respondent’s comments were personal attacks against her and her family, petitioner stated that respondent’s actions put her "in fear of what [respondent] is going to do next" because of the escalation of the nature of the postings. Petitioner noted that respondent owned a firearm, and that she was in fear for her children and her grandchild.

Respondent’s counsel argued that respondent’s conduct consisted only of speech, "not actions, not threats, not anything."

Respondent’s counsel reiterated that petitioner’s remedy was a defamation claim, not a PPO, and that the court-imposed prohibitions related to stalking were inappropriate. According to respondent’s counsel, the PPO was a restraint on respondent’s speech that impermissibly infringed his First Amendment rights. While respondent’s counsel characterized petitioner as actively involved in local politics, petitioner testified that she did not file the petition to recall respondent as a township trustee but that she did participate in circulating the recall petition. After hearing oral argument, the trial court modified the PPO so that respondent only was prohibited from posting messages "pursuant to MCL 750.411(s)." The trial court subsequently entered an amended order modifying the PPO. The amended PPO provides that respondent is prohibited from "posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s," and that the order remained in effect until January 28, 2016. There is no indication that the trial court renewed this amended PPO, and it expired while the appeal in this Court was pending.

We do not disagree with petitioner or the trial court that respondent’s statements often were inappropriate, at times crude, and even sometimes, with respect to the death of petitioner’s son, offensive. Inappropriate, crude, and offensive language, however, is not necessarily excepted from constitutional protection. For that reason, we cannot adopt the trial court’s preference to treat a PPO, which in this case is a prior restraint on respondent’s speech, as a means "to help supplement the rules that we all live in society by." The First Amendment of the United States Constitution demands that we not treat such speech-based injunctions so lightly.


Respondent argues that the trial court abused its discretion by issuing the PPO solely on the...

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