Richard Heffron’s Facebook status was written in all caps. Within an hour of its posting, Shaylynn Pierce received a screenshot from a family member.

“IM GONNA RUN YOU DOWN EVERY CHANCE I CAN TODAY AND TOMORROW AND THE NEXT DAY AND THE NEXT,” the status read.

When Pierce read the words on her ex-husband’s Facebook profile, she panicked.

“I immediately freaked out,” said Pierce, 41. “I physically felt threatened. This man is unpredictable. I don’t know what he’s going to do.”

Police say that message was one of several Heffron posted on Facebook in September 2017 directed at his former wife, who has a protection from abuse order against him. The angry words were ultimately reprinted in a Maine Supreme Judicial Court ruling, upholding his conviction for violating that protection order with his social media posts.

“When they came back with that decision, I finally felt validated,” Pierce said. “For the first time, somebody is listening to me. Somebody believes me. For years, he said nobody would believe me.”

The high court’s decision set a precedent in Maine, giving prosecutors more leeway to consider online posts as a type of contact. State and federal law has lagged behind social media, but across the country, rulings like this one are starting to draw the boundaries for digital communication.

“This precedent gives you broader authority to go after what we previously thought of as gray areas on the internet,” said Sagadahoc County Assistant District Attorney A.J. Chalifour, who prosecuted Heffron.

But to defense attorney Jim Mason, who represented Heffron, this ruling creates more questions than it answers.

“I think people are just not going to understand how far into their personal thoughts and their recording of that on the internet the law can go,” Mason said.

Obtaining a protection from abuse or harassment order is a civil action, but violating one is a crime. Protective orders typically include a “no contact” clause, so the person who is subject to the protection order cannot have physical or verbal contact with the person who took out the order. In Maine, violating certain parts of a protective order is a Class D crime, a misdemeanor punishable by up to 364 days in jail and a $2,000 fine. Violating other parts of the order might rise to the level of a Class C crime, a felony punishable by up to five years incarceration and a $5,000 fine.

In the last decade, many states have expanded the definition of contact to include texting, emailing or other types of online communication. But the law lags behind technology, and in recent years, the courts have been called upon to define the relationship between prohibited contact and social media.

MURKY AREAS IN THE LAW

In 2015, a Pennsylvania man who posted about his breakup on Facebook was found guilty of violating a protective order his ex-girlfriend had taken out against him. Cases in New York, New Hampshire, Florida and other states have had similar outcomes.

“An abuser’s mere posting of any reference to his or her victim on social media, regardless of content, is, thus, automatically considered targeting tantamount to making impermissible contact with the victim,” the judge wrote in the Pennsylvania case.

But there are still murky areas in the law.

In 2015, for example, the U.S. Supreme Court threw out a conviction for a Pennsylvania man who posted rap lyrics on Facebook about killing his estranged wife, federal law enforcement officials and a kindergarten class. A majority of the justices issued an opinion saying it should have been a factor in the case that the man claimed the posts were intended to be therapeutic.

“A defendant must be ‘blameworthy in mind’ before he can be found guilty,” Chief Justice John G. Roberts Jr. wrote.

But the narrow ruling did not specify what would need to be proved about the man’s mental state for him to be convicted. And two justices dissented, saying the majority opinion was too confusing.

There are no national data on the number of active protective orders.

In fiscal year 2018, statistics from the state’s Judicial Branch show that more than 5,400 protection from abuse cases were filed in Maine. A temporary order was granted in 80 percent – 4,438 – of those cases. Slightly less than half – 2,319 – of those temporary orders later became permanent orders.

A violation of a protection from abuse order can be charged under multiple statutes in Maine law, so tracking these crimes can be difficult. But state figures show that there were 736 unique cases related to violations in fiscal year 2018. Some defendants faced multiple charges, and some cases were still pending as of last month. More than half of the 819 charges filed in these cases resulted in a conviction.

FACEBOOK POST PROMPTS ACTION

Pierce said she and Heffron were in the midst of a contentious custody battle when she filed for the protective order.

The two married in 2002 and divorced a decade later. They have three children together. In her written request for the protection from abuse order, Pierce described Heffron standing outside her apartment complex and screaming threats at her. She wrote that her landlord had obtained a no-trespassing order against him, but he continued to show up outside her home at all hours. If she called the police, she said he would leave before they could find him.

A judge in West Bath District Court issued the protection from abuse order in June 2016. The conditions barred Heffron from contacting his ex-wife outside of court hearings and a daily call or text about his supervised visits with the children.

“I knew it was probably going to be more of the same, and that was the only way I was going to protect myself,” Pierce said.

A criminal background check shows Heffron had been arrested once before for violating a protective order in December 2015. Pierce said that order had been taken out by another relative. When the judge granted one for Pierce, her ex-husband was arrested almost immediately in June 2016 for violating it. Both times, he received suspended jail sentences of one or two days.

When Pierce learned about his Facebook posts in September 2017, she sent screenshots to the Bath Police Department. Her ex-husband was arrested again in September 2017, and soon Pierce was preparing to testify in court. In November, the judge found Heffron guilty. He was sentenced to 90 days in jail with all but 21 suspended, then a year of probation. Mason, the defense attorney, filed an appeal with the Supreme Judicial Court. In July, the high court finally issued its ruling, upholding Heffron’s conviction.

“Just as if Heffron were speaking directly to the protected person, he framed his posts as direct communications to that person,” Justice Jeffrey Hjelm wrote in the unanimous opinion. “Therefore, the court did not err by finding that the language of the Facebook posts itself demonstrated that Heffron intended to communicate with the protected person.”

Mason said he was disappointed with the ruling and still does not consider what his client did to be a form of contact. He declined a request to interview Heffron and spoke on his client’s behalf.

“I don’t believe that talking about somebody on the internet is contact,” Mason said. “I think contact requires some sort of affirmative step to assure that person could get that communication, whatever that is. I think the Law Court was too restrictive when they said just putting it on Facebook is enough.”

Heffron had also argued that his Facebook posts were protected speech under the First Amendment, but the justices disagreed.

“I think in this case the court was asking the right questions,” said Zach Heiden, legal director for the American Civil Liberties Union of Maine. “All sorts of speech that we might find to be reprehensible or offensive or distasteful is nonetheless protected by the First Amendment. But what’s not protected by the First Amendment is direct threats.”

RULING OFFERS CLARIFICATION

The impact of this precedent could be broad.

As a defense attorney, Mason said he handles six to 10 cases a year involving a charge of violating a protective order. He expected this precedent to also factor into other court orders with “no contact” provisions, like bail and probation conditions. He said he already was telling his clients to be careful about what they post on social media, but now he will be even more firm about that advice.

“Don’t post anything that you don’t want the police to see,” he said.

Officer Shara Mike Guzelian, a domestic violence investigator at the Biddeford Police Department, said he already pursues complaints about social media posts. But this ruling makes those cases more clear for everyone in the criminal justice system, he said, and he hoped that online communication would be explicitly mentioned in protection from abuse and other court orders.

“Maybe someday they’ll update the forms through the courts that will specifically write, ‘No social media posts,’ ” he said.

Regina Rooney, the education and communications director at the Maine Coalition to End Domestic Violence, said some survivors feel they cannot be on social media at all because of posts from their abusers. But that can be personally isolating and even professionally detrimental, she said, so she was glad to see the gray areas in the law get a little smaller with this ruling.

“It seems somewhat common sense that this would be a violation of the order to a layperson, but how our laws are applied to these technologies is still an evolving question, and so that this ruling reflects a level of accountability for this conduct is encouraging,” she said.

PERMUTATIONS AND COMPLICATIONS

Still, those gray areas exist.

Some of Heffron’s social media posts specifically referenced his ex-wife by name. But legal experts said it is not clear yet whether the ruling would apply to a case where the references are more veiled or indirect – for example, a passive-aggressive meme or a vague “you know who you are.”

“How much do you have to identify me for it to be truly about me, beyond a reasonable doubt?” Mason said.

York County District Attorney Kathryn Slattery said her office would be more likely to pursue cases that look like this one, but not all do.

“A lot of it is not as clear as what the Law Court dealt with,” Slattery said. “It makes it clearer from my perspective, but there’s still going to be many permutations of the attempt to contact or harass.”

For Pierce, however, the impact of the high court’s order has not been what she hoped.

A background check shows Heffron was arrested again this year for violating the protection order. Pierce said he came into a gas station store where she was standing in line. Under the terms of the protection order, Heffron was supposed to immediately leave the store when he saw her there, but Pierce said he did not. She fled the gas station and called the police, and in September, he was sentenced to a year in jail with all but 17 days suspended.

By this third violation, Pierce said she was frustrated by what she considers a lack of consequences for Heffron.

“I’m like, what, is he going to come in and beat the (crap) out of me before you do something?” Pierce said.

She decided to move. In July, the same month the Supreme Judicial Court issued its ruling, she relocated her family hours away from Bath.

“I’m trying to move on,” Pierce said. “I’m trying to stabilize my children. I’m trying to get us all healthy. I feel like I had to get out and start over somewhere else.”

Now they are settling into a new home. Pierce is working two jobs and taking classes to get her associate degree as a medical assistant. She keeps a bat by the door.

Still, she said she believes her case will make a difference for other people. And to her, it is a reminder that she is capable of being her own advocate, something she did not believe for years.

“I’m still scared,” Pierce said. “But if I don’t speak up, no one’s going to speak for me.”

 

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