In a unanimous opinion released Thursday, the New Hampshire Supreme Court upheld the constitutionality of a lower court’s stalking order, which prohibits the defendant from posting the name or any images of his victim on any social media platform.
In Feb. 2022, a circuit court judge granted a stalking petition request filed by a victim identified by her initials S.D. She alleged that for years, N.B., described as an acquaintance from high school with whom she had no personal relationship, created and posted images on social media depicting her likeness in disturbing and often violent situations.
The stalking order instructed N.B. to cease producing and posting the images, and went further by prohibiting him from posting her name or photograph on any social media platform. N.B. appealed, arguing there was insufficient evidence that he had stalked the victim, and that the court had overstepped his First Amendment right to free expression.
In a5-0 opinion, the justices on the Supreme Court rejected both arguments.
“The objective is to ensure that the stalking ends,” wrote Justice Gary Hicks. He noted that the order doesn’t prohibit N.B. from using social media platforms in other ways, and also “does not prohibit the defendant from speaking about the plaintiff in any offline forum.”
The justices wrote that there is “compelling government interest” in limiting N.B.’s postings, and that the order doesn’t undermine his rights.
The decision was hailed by domestic and sexual violence advocacy groups, including New Hampshire Legal Assistance.
“The courts correctly decided that was stalking, what he was doing, and you are specifically saying that you can no longer stalk this victim,” said Mary Krueger, staff attorney for the group, which submitted an amicus brief in support of the victim.
Krueger noted that the case sets an important precedent, protecting victims of online stalking.
The case was decided without oral arguments.
In its own amicus brief, the American Civil Liberties Union contended that, while it agreed with the stalking order’s restrictions on the creation and publication of violent or disturbing images using the victim’s likeness, the second portion of the lower court’s order prohibiting N.B. from posting the victim’s name in any online forum was overly broad.
“Because the restriction is not narrowly tailored to the communications that were found to have contributed to [the] defendant's unlawful stalking campaign, it violates the First Amendment,” the civil liberties group told the court.
The ACLU posed a hypothetical example in its legal brief of a stalking victim running for elected office, but their stalker would be unable to express an opinion online of their candidacy, a potential violation of free speech rights.
The justices, in their written opinion, countered that “the trial court order does not prohibit the defendant from engaging in social media platforms and allows the defendant to participate in almost all online activity.”
The court added that “the order at issue simply restrains the defendant from continuing to stalk the plaintiff.”
