Motion to terminate an ex parte personal protection order (PPO); Constitutionally protected speech; Buchanan v Crisler; Distinguishing Hill v Colorado; MCL 750.411h(1)(c); MCL 750.411s(6); “Fighting words”; TM v MZ (On Remand); Whether petitioner (a city attorney) was a public figure; Gertz v Robert Welch, Inc; “Public officer” (MCL 750.478a(7)(d)(ii))

The court held that the trial court erred as a matter of law in ruling respondent’s speech violated petitioner-city attorney’s right to be left alone, because the speech was constitutionally protected. Thus, the trial court abused its discretion in denying the motion to terminate the ex parte PPO. The court noted that the “extent to which respondent’s offensive speech targeting petitioner was protected” depended on whether petitioner was “a public or private figure. The trial court did not make an explicit determination in this regard.” There was no dispute that, at the relevant time, he held appointments as a city attorney and a member of another city’s board of ethics. The court found, “as a matter of law, that, in light of the obvious focus of the speech at issue on matters of public interest relating to local politics, and of petitioner’s statutorily recognized status as a public officer, [he] was a public figure for present purposes.” In ruling that “respondent’s political commentary toward petitioner lost constitutional protection because it infringed on petitioner’s ‘right to be left alone,’” the trial court cited Hill. The court found Hill distinguishable, as it concerned “a content-neutral state law, rather than overtly offensive speech. The parties” offered no binding cases applying “a ‘right to be left alone’ to overcome constitutional protections in the context of a PPO.” It further noted that “the PPO largely targeted e-mail messages, which were not unavoidable insofar as they may be left unopened or possibly even blocked.” Thus, the court concluded “in prioritizing petitioner’s interest in being let alone over respondent’s constitutional right to communicate an opinion on public concerns to public officials, even in ways that are offensive, crude, or childish, the trial court applied . . . Hill too broadly. When online messages are posted ‘solely’ to ‘harass a private victim in connection with a private matter,’ that activity may be enjoined by PPO, but when ‘the information relates to a public figure and an important public concern,’ a PPO may not be issued to restrict the speech.” The court also determined the undisputed facts showed “there were no fighting words” here. While it found respondent’s poster and “calling petitioner a ‘chump’ as” he walked by “were tasteless, boorish, and offensive,” it held that they “did not reach the level of being ‘inherently likely to provoke violent reaction’ in an ordinary person.” Reversed and remanded.