Page 1
Order Against Online Harassment Didn’t Constitute Prior Restraint, C.A. Declares
By a MetNews Staff Writer
A provision of an anti-harassment order prohibiting a woman from posting disparaging matter online concerning a man she previously dated did not constitute an unconstitutional prior restraint, Div. Three of the Fourth District Court of Appeal has held.
Justice Maurice Sanchez authored the unpublished opinion, filed Tuesday. It affirms an amended domestic violence restraining order (“DVRO”) issued by Orange Superior Court Judge Michael E. Perez in an action by Tomas Czodor against Xingfei Luo. “Item 23” of the amended order declares that Luo “shall not post any pictures or likeness of the Protected Party or refer to him by name on any social media or website or blog that would be abusive pursuant to [Family Code] §6203 and [Family Code] §6320.”
Family Code §6203, a part of the Domestic Violence Protection Act (“DVPA”), says that “abuse” includes “any behavior that has been or could be enjoined pursuant to Section 6320.” Sec. 6320(a), in turn, authorizes the enjoining of conduct that constitutes “disturbing the peace of the other party”—which subd. (c) says “refers to conduct that, based on the totality of the circumstances, destroys the mental or emotional calm of the other party.”
Subd. (c) elaborates:
“This conduct may be committed directly or indirectly, including through the use of a third party, and by any method or through any means including, but not limited to, telephone, online accounts, text messages, internet-connected devices, or other electronic technologies.”
Not Protected Speech
Sanchez wrote:
“The doctrine of prior restraints applies only to speech and expressive conduct that is protected by the First Amendment….An injunction prohibiting the repetition of expression that has been adjudicated to be unlawful does not constitute a prohibited prior restraint of speech.”
He elaborated:
“Item 23 of the Amended DVRO is not a prior restraint because it does not prohibit Luo from engaging in expressive conduct protected by the First Amendment. Item 23 enjoins Luo from posting pictures or likenesses of, or references to Czodor that constitute abuse under Family Code section 6203 or 6230. Conduct that is abusive under the DVPA is not protected by the First Amendment. The trial court, when issuing the DVRO, found that Luo had engaged in abusive conduct by, among things, posting photographs and nasty comments about Czodor on social media, blogs, and Web site. Item 23 of the Amended DVRO simply enjoins Luo from engaging in conduct which the court had earlier determined to be abusive.”
Over-Breadth Alleged
The jurist said the order is not impermissibly overly broad because it does not ban all postings concerning Czodor—“only those that are abusive under the DVPA”—and is not unconstitutionally vague because the term “disturbing the peace” is defined by §6320(c).
Sanchez commented that “Luo’s mission to prove she never had a dating relationship with Czodor, though pursued tenaciously, was doomed from the get go because the issue of a dating relationship was fully adjudicated against her by issuance of the DVRO.”
That adjudication, he noted, followed an evidentiary hearing.
The DVRO was issued by then-Orange Superior Court Commissioner Renee E. Wilson on Oct. 19, 2018 and was affirmed by the Court of Appeal on Aug. 29, 2019, in an unpublished opinion by then-Justice David A. Thompson. Tuesday’s opinion affirms the DVRO, as amended by Perez on Oct. 1, 2021, changing wording but not the substance of the online-harassment provision, and also affirms his denial of Luo’s motion for an early termination of the DVRO, scheduled to expire next October.
Sanchez related in a footnote that Luo, as a result of her harassment of Czodor at his home, was convicted in Orange Superior Court of three misdemeanors: vandalism causing damage under $400, violation of a protective order, and disorderly conduct—dissemination of private videos and recordings.
The case is Czodor v. Luo, G060756.
Century City attorney Nicolette Glazer of the Law Office of Larry R. Glazer represented Czodor. Luo was in pro per.
Last Sept. 6, Luo, who is on probation following her criminal convictions, filed a petition for a writ of habeas corpus in the U.S. District Court for the Central District of California. A stay of the federal proceedings was granted on Dec. 20 by Magistrate Judge Karen E. Scott to give Luo a chance to exhaust state remedies.
Copyright 2023, Metropolitan News Company