Thursday, March 19, 2020

Comedian Ordered Not to Post Anything "That Would Suggest to Prospective Employers That They Should Not Hire … or Book" Her Comedian Ex

By Eugene Volokh - March 19, 2020 at 02:39PM

You'd think that a story that more or less begins, "Two lesbian comedians walk into a courtroom" would be funnier, but unfortunately it's not (except perhaps for some capitalization abuse. On the other hand, it's legally quite interesting, especially given the striking breadth of the injunction imposed on Ms. Pels (emphasis added):

The court ordered, "For two years only you are ordered to not harass Ms. Curcio…. You may not molest her or disturb her peace in any way, shape or form. [¶] You may not disturb her peace by posting anything on any social media that includes her name, face and likeness. You are expressly ordered to not post anything on the internet or any social media that would suggest to prospective employers that they should not hire her or book her in any way. [¶] You are ordered to not contact her directly, indirectly, in any way including but not limited to by telephone, mail, email, text message, Facebook, Instagram, social media or other electronic means."

Here is a particularly noteworthy part of the rationale given by the trial judge (Judge James E. Blancarte) for issuing the injunction:

If you came into my life telling people that I should not be on the bench for X reasons, it would disturb me greatly. You are disturbing my peace by interfering with my ability to earn a living. [¶] Why is it any different if you are posting on social media that no one should book her?

And here is the heart of the decision, in Curcio v. Pels (Cal. Ct. App. Feb. 27) (written by Judge Anne Egerton, joined by Judges Luis Lavin and Halim Dhanidina) (emphasis added):

[Facts and procedural background:] [Jennifer] Curcio and [Julia] Pels used to date. Their relationship ended in early 2016. They both are comedic performers. On November 2, 2018, Curcio filed a … request for a domestic violence restraining order against Pels …

Curcio attached a declaration to describe the abuse: On October 16, 2018, "Pels reached out to people" at the theater where Curcio performed "in an attempt to have [Curcio] banned by falsely accusing [her] of physical [and] sexual assault." Curcio stated that when she was not banned from the theater, Pels "publicly posted on social media with [her] name [and] the accusations." …

Curcio accused Pels of threatening, in December 2015, "to ruin [her] reputation with false accusations of abuse, if [she] ever crossed her." She also asserted that during their relationship in November 2015, she awoke to a "blow to [her] head" after falling asleep during an intimate encounter with Pels. [The Court of Appeal concluded that the trial court never found that the blow to the head allegation was true. -EV] Curcio stated that after they broke up in early 2016, Pels tried to get into comedy shows where Curcio was performing and "behaved aggressively" when she was not let in. When Pels "made an aggressive attempt to get into" one of Curcio's shows in March 2016, the host banned Pels from the show. Curcio also declared Pels waited outside the front door of her apartment in March 2016 and would not leave until Curcio had two friends come over.

Curcio described Pels as coming to one of her comedy shows in January 2018 and trying to get "physically close" to her, despite Curcio's "attempts to get away from her." She stated Pels "has also tried to be booked on the same shows as me [and] has occasionally heckled me." She said she wanted the restraining order because she "talked" to Pels's "ex." Curcio … attached a text message the woman sent to her … describ[ing] Pels as "unstable, dangerous, and [a] pathologically lying person." … Curcio asserted, "This is the repeated pattern of explosive, volatile behavior that makes me feel scared of Julia Pels. Her obsession [and] fixation on me for the last 3 years since our breakup also makes me feel threatened [and] like this will escalate to physical abuse again."

Curcio attached several exhibits to her petition, including what she described as Pels's "public[ ] social media post, accusing me of physical/sexual assault [and] likening booking me on comedy shows to supporting a rapist" …:

"I HAVE WAITED THREE YEARS to say this. with all the talk of equality and 'believing women,' I thought it was time to share my story. as much as i've wanted to write this post, i've also dreaded it. like most abuse victims, we are afraid we won't be believed or we will be shamed for telling the truth. but i'm NOT a victim, i'm a survivor and i'm NOT afraid to tell the truth anymore.

"JEN CURCIO (yes, i just outted my abuser) was SEVERELY AND DISTURBINGLY ABUSIVE TO ME in the six months we dated. she still abused ME EVEN AFTER i broke up with her. she gave me ptsd among other things.

"NOW, i'm here to say this to all of the 'FEMINISTS' out there. if you are going to believe ALL WOMEN, that goes for QUEER women as well. men are not the only predators in this world, unfortunately. women, YES WOMEN, can be just as bad.

"AND, FOR THE RECORD it's not a 'she said/ she said.' i have proof. wanna see the death threats from her friends, pictures of bruises or recordings of her verbally accosting me? i'm tired of keeping my mouth shut. she doesn't even deserve this post, but other women deserve to be SAFE. that's the ONLY reason why i'm telling this story.

"WHEN YOU BOOK HER ON YOUR SHOWS, BEFRIEND HER, PLAY ON IMPROV TEAMS WITH HER YOU, ARE ENABLING AN ABUSER. IT IS LIKE SUPPORTING A RAPIST, would you book a male comic rapist or abuser of any sort? LET US ALL STOP BEING HYPOCRITICAL AND BELIEVE ALL WOMEN, including me.

"AND TO ALL OF MY FRIENDS THAT HAVE AND DO BELIEVE AND SUPPORT ME, i love you infinitely. TO THOSE that don't believe me, unfollow me now!

"p.s. she has abused other women and even improv members so please be careful. she is currently under investigation by multiple theatres." …

Curcio … [asked] that Pels be restrained from harassing or disturbing Curcio's peace … [and asked for] a stay-away order requiring Pels to stay 100 yards away from Curcio …. Curcio also asked the court "to order [Pels] to stop posting about me on social media platforms."

[The trial court granted the restraining orders temporarily on Nov. 2, 2018, and then permanently on Nov. 26. At the Nov. 26 hearing, Curcio testified:]

"[W]e both are in comedy and I have had no contact with her, but she posted using my name accusing me of sexual and physical assault and mental and verbal assault, and those are not true allegations, and to a lot of people she specifically said when you book her [meaning Curcio] for shows, befriend her, play on improv[ ] teams with her, you are enabling an abuser. It's like supporting a rapist. [¶] … I have my job at CollegeHumor because of my comedy, and people at my work were questioning me about this post, and I had to go to my immediate supervisor and explain everything that has happened, and there's just always been kind of rumblings from her about these false accusations of abuse, and it's starting to hurt my career."

After hearing from Curcio, the court explained to Pels that "disturbing someone's peace to a degree that no reasonable person should have to endure," is a ground for issuing a restraining order. The court continued, "I can and will issue those restraining orders even if you never laid a hand on the petitioner, and what she just put on the record is that you have interfered with her ability or you have attempted to interfere with her ability to earn a living. That would disturb the peace of any reasonable person. If you came into my life telling people that I should not be on the bench for X reasons, it would disturb me greatly. You are disturbing my peace by interfering with my ability to earn a living. [¶] Why is it any different if you are posting on social media that no one should book her?"

The court reasoned, "Telling somebody don't book somebody is interfering with their work…. [¶] It's not something that the law tolerates. It's a form of abuse." …

Pels … said she would take the Facebook post down, "if that means that I never have to see her again. I want nothing to do with Ms. Curcio. You don't have to restrain me. I don't even think of her." The court responded, "The issue for me is that if you don't want to be in her life … [¶] then don't post anything anywhere, at anytime about her. I'm going to issue a restraining order that orders you to do that because that is inappropriate and harmful."

The court ordered, "For two years only you are ordered to not harass Ms. Curcio…. You may not molest her or disturb her peace in any way, shape or form. [¶] You may not disturb her peace by posting anything on any social media that includes her name, face and likeness. You are expressly ordered to not post anything on the internet or any social media that would suggest to prospective employers that they should not hire her or book her in any way. [¶] You are ordered to not contact her directly, indirectly, in any way including but not limited to by telephone, mail, email, text message, Facebook, Instagram, social media or other electronic means."

The court ordered Curcio to stay 100 yards away from Pels, except in comedy clubs. It ordered Pels to stay five yards from Curcio in comedy clubs and not interrupt Curcio's set or talk to her while at the club. The court incorporated the orders it read into the record by reference "as though set forth in full" in the written restraining order….

[At a motion for reconsideration on December 5, 2018], counsel argued new circumstances existed in that since the entry of the restraining order on November 26, 2018, Pels had been banned from a comedy venue where she had worked. Pels submitted a declaration in support of the motion for reconsideration. She declared she "never abused [Curcio] physically, psychologically, sexually or in any manner during [their] relationship back in 2015 until now." … Pels also declared she has been banned from the venue where she performed her comedy show, which "interferes with my livelihood." Pels's agent submitted a declaration averring "[u]pon information and belief, if this domestic violence restraining order is not lifted, it will be very difficult for me to book Ms. Pels for any paid jobs in major film and television." …

[Legal analysis:] The trial court made clear it was issuing the restraining order on the ground Pels had disturbed Curcio's peace through the October 2018 Facebook post. We thus … consider whether the post is sufficient evidence of abuse. As the court told Pels, the DVPA does not require Pels to have "laid a hand on" Curcio for a restraining order to issue. Pels could be enjoined under the DVPA for disturbing Curcio's peace through conduct causing "destruction of her mental or emotional calm." (Nadkarni, supra, 173 Cal.App.4th at pp. 1497, 1499.)

Courts of Appeal have found conduct involving communications such as text messages, email, and social media constitutes abuse under the DVPA for disturbing the petitioner's peace. In defining "disturbing the peace" under the DVPA as "conduct that destroys [another's] mental or emotional calm," the Sixth District Court of Appeal in Nadkarni concluded the petitioner's application for a restraining order was facially sufficient where she alleged her ex-husband accessed, read, and publicly disclosed the content of her confidential emails, which caused her to suffer embarrassment and "to fear for her safety." The court concluded the ex-husband's conduct with respect to the e-mail account allegedly caused the "destruction of [petitioner's] mental or emotional calm and could, if found to be true, constitute 'disturbing the peace of' " the ex-wife "sufficient for a showing of abuse under the DVPA."

Similarly, in In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1419, the First District Court of Appeal affirmed the trial court's finding of abuse and issuance of a restraining order under the DVPA where a husband downloaded "tens of thousands of text messages" from his wife's cell phones and information from the " 'notes' section of [her] iPhone, which [she] used as a diary," and filed copies of some of the downloaded messages with the court during the couple's dissolution proceedings. The wife alleged the husband also transmitted private text communications to third parties, had "hacked into her Facebook account, changed her password, and rerouted the e-mail associated with her Facebook account to his own account," and "threatened to reveal publicly more text messages and e-mails for leverage in the dissolution proceedings." And, this District concluded substantial evidence supported the trial court's finding a defendant "disturbed the peace of plaintiff" through a "course of conduct of contacting plaintiff by phone, e-mail, and text, … and arriving at her residence unannounced and uninvited, and then refusing to leave."

Pels's single, private Facebook post accusing Curcio of abusing her is a far cry from the conduct described above. Pels expressed political views and posted her opinion of Curcio to her own private social media account. Curcio herself told the court she believed the post "was not public."

Curcio also presented no evidence Pels sent her harassing, threatening, or unwanted texts or e-mails, as in Burquet, or social media posts, for example. Indeed, Curcio told the court she had not been in contact with Pels. Nor is there evidence Pels published or distributed to third parties Curcio's private information or messages, as was the case in both Nadkarni and In re Marriage of Evilsizor & Sweeney. Curcio certainly never claimed the Facebook post included her confidential information.

We do not interpret Nadkarni and its progeny to hold a restraining order may issue based on any act that upsets the petitioning party. The DVPA was not enacted to address all disputes between former couples, or to create an alternative forum for resolution of every dispute between such individuals. If Pels's Facebook post is libelous, for example, Curcio may seek recourse through a defamation suit.

Curcio understandably was upset by the social media post and it may have made her fear for her career, but we conclude it cannot be said to rise to the level of destruction of Curcio's mental and emotional calm, sufficient to support the issuance of a domestic violence restraining order. {We note a domestic violence restraining order is no ordinary injunction. Its violation is punishable as a misdemeanor. Arrest is mandatory where an officer has probable cause to believe the order has been violated. Moreover, "[t]here often will be some social stigma attached while a person is subject to a protective order. Existing employers may frown on an employee who is subject to such an order and prospective employers almost surely will. Thus[,] the restrained party may lose out on a promotion or a job."} Because we find the Facebook post does not constitute abuse under the DVPA we need not address Pels's contention the order is a prior restraint on her speech.

The injunction does seem to me to be a clearly unconstitutional prior restraint, but the court indeed didn't have to reach that question because it rightly concluded that the injunction wasn't justified by the statute. The opinion is unfortunately not designated as precedential, but Prof. Aaron Caplan and I, who have written about speech-restrictive protective orders, have asked the court to change the designation—hope the Justices agree


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