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Gordon v. Gordon7/28/2000
on of ordinary intelligence would understand as constituting abuse, harassment, and disturbing the peace.
Benny challenges as overbroad the portion of the protective order that mandates that he "make no remarks in [Janet's] presence not compelled by the employment situation in which they mutually engage." He contends that this portion is so overbroad as to violate his free speech rights guaranteed by the First Amendment to the United States Constitution. He cites Madsen v. Women's Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516 (1994) in support of his contention.
In Madsen, the Supreme Court held that an injunction must "burden no more speech than necessary to accomplish its objective." 114 S.Ct. 2526. The Court expressed its belief that this standard is the First Amendment equivalent of the general standard that "`injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.'" Id. at 2525 (quoting Califano v. Yamalski, 442 U.S. 682, 702, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979)).
Benny argues that prohibiting him from saying anything in Janet's presence while at the workplace is more burdensome to him than is necessary to provide Janet with relief from his abuse, harassment, and/or disturbance of the peace. He maintains that it would have been sufficient to order him to refrain from saying anything in an abusive, harassing, or threatening manner. He further argues that Janet did not request such a broad prohibition.
The record discloses that one of Janet's requests pertained to her desire to be free of general harassment. In her statements to the trial court, Janet's attorney emphasized that both Benny and Janet could do their respective jobs with little or no verbal interaction. In her testimony to the trial court, Janet emphasized that Benny's harassment could be subtle, and in that subtlety, could be much more threatening to Janet than any blatant statements of an abusive, harassing, or threatening nature. We find from these facts that Janet was requesting a broad prohibition that would address all forms of communication at the workplace.
Furthermore, we note that it was the desire of the trial court to issue a standard protective order that would have wholly prevented Benny from coming within a certain distance of Janet. This desire was based on the trial court's realization that seemingly innocuous statements can be harassing or threatening in the manner and tone in which they are delivered. Indeed, threats can be communicated in statements made by an insensitive person who considers the statements to be "ordinary horseplay." Of course, under this type of order the very fact that the respondent is prevented from being in the petitioner's presence places a limitation on the respondent's First Amendment rights of speech and association. Realizing that a standard order would not be appropriate in the workplace, the trial court fashioned an order that would accomplish the same thing as the standard order while allowing both parties to continue in their gainful occupations. We believe the order is no more restrictive than that necessary to accomplish the trial court's intent.
The trial court's issuance of a protective order is affirmed. RILEY, J., and NAJAM, J., concur.
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