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Online Harassment and Freedom of Speech

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The convergence of harassment law and freedom of speech rights inherent under the constitution have created new and unique legal problems in the last several years.  Specifically, with the explosion of social media, the right to be free of harassment and the right to freedom of speech, have conflicted in ways that, previously, were never before contemplated.

California courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech on other forums. However, California Courts have also  made clear that certain kinds of speech such a defamation or threats of physical violence are not afforded First Amendment protection.

Courts that have made orders requiring speech to be taken off the Internet without a finding that it is not constitutionally protected have been reversed on appeal.  For example, in Evans v. Evans (162 Cal. App. 4th 1157) a Court of appeal found that an order prohibiting a defendant from publishing statements on the Internet was constitutionally invalid “[b]ecause there has been no trial and no determination on the merits that any statement made [were] defamatory.”

This is not to say that any speech is allowed on the Internet, only that the lines of demarcation are new and shifting.  Determining if speech on the Internet is legally protected, or, subject to a court order for removal requires a careful analysis that takes these shifting borders in account.

The San Francisco based bay area attorneys of Jones & Devoy LLP have experience in these unique and emerging issues and can help you determine if the actions in your case are protected or actionable under the law.

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