November 15, 2019
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Maine high court considers whether Facebook posting violates no-contact order

Richard Drew | AP
Richard Drew | AP
In this March 29, 2018, file photo, the logo for Facebook appears on screens at the Nasdaq MarketSite in New York's Times Square. The Maine Supreme Judicial Court is considering whether a man violated the law by posting comments on his Facebook page about a person he was forbidden to contact.

The Maine Supreme Judicial Court will decide if a man violated the law by posting comments on his Facebook page about a person he was forbidden to contact.

Richard Heffron III, 39, of Bath posted on his Facebook page about a woman who had a protection from abuse order against him. She was no longer a Facebook friend of his and had blocked him from her page.

After his sister showed the postings to the victim, she went to local police and Heffron was charged with violating a protection from abuse order. He was convicted after a one-day, jury-waived trial last year and was sentenced to six months in jail with all but 21 days suspended and one year of probation.

In Heffron’s appeal to the Maine Supreme Judicial Court, his attorney, James M. Mason of Brunswick, claimed that the law does not cover Heffron’s actions.

“Commenting about a protected person on Facebook is neither direct nor indirect contact as defined by the [protection from abuse] statute,” Mason said in his brief. “Without some affirmative step to ensure the protected person could receive the comments, these expressions are not criminal in nature and are protected by the rights of free speech enshrined by the U.S. and Maine Constitutions.”

Alvah J. Chalifour Jr., assistant district attorney for Sagadahoc County, disagreed. He argued in his brief that the comments were directed toward the woman Heffron was not to contact.

“[It] was the natural and almost certain consequence that the messages would reach her and that it was in fact Heffron’s intent that they would,” he wrote.

He compared Facebook to the post office, a telephone company or a radio station as a means by which people can communicate indirectly.

Mason, in his brief, said that even if it was Heffron’s intent to communicate with the woman he was forbidden from contacting, the statute is not specific enough for him to have known he was breaking it, as the law requires.

Chalifour dismissed that argument by citing a famous scene from the movie “Casablanca.”

“Heffron’s contention that he believed he was engaging in the free exercise of speech and not making a direct threat to [the woman] is analogous of Captain Renault being shocked to find gambling in Rick’s Cafe Americain.”

The justices, who convened at the Capital Judicial Center in Augusta on Wednesday, focused their questions on the content of the messages.

“He did a call out to her,” Justice Ellen Gorman said. “He said, ‘I’m gonna run you down every chance I can today and tomorrow and the next day and the next. You think you drove me off the deep end. It’s your turn [expletive].’ Doesn’t that show that he intended to contact her?”

Mason conceded that if Heffron had sent the same content to her in an email, that message would have been direct contact under the law. The attorney maintained that because Heffron was not a friend of the woman on Facebook and they had blocked each other on the social media site, Heffron did not intend for her to see his comments.

“This is a statement directed to her, sent in an indirect way,” Justice Jeffrey Hjelm said.

Chalifour acknowledged that although the statements appeared to be threatening, his office did not allege that Heffron threatened the victim in the complaint, just that he tried to contact her.

“In 2018, is it different if I send a message through the post office or if I post it online?” Gorman asked. “If you post it, how do you know it’s going to get to me?”

It would be up to a judge or a jury to determine the sender’s intent and whether the content of the message was protected under the First Amendment, Chalifour said.

There is no timetable under which the court must issue its opinion.

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