MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2016 ME 142 
Docket:	      Oxf-15-587	
Submitted	
  On	Briefs:	 May	26,	2016	
Decided:	     September	13,	2016	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  GINA	M.	CHILDS	
                                          	
                                        v.	
                                          	
                                ROBERT	A.	BALLOU	JR.	
	
	
SAUFLEY,	C.J.	

       [¶1]		Robert	A.	Ballou	Jr.	appeals	from	a	judgment	of	the	District	Court	

(South	Paris,	Carlson,	J.)	granting	to	Gina	M.	Childs	a	two-year	extension	of	an	

existing	 order	 of	 protection	 from	 abuse.	 	 See	 19-A	 M.R.S.	 §	 4007(2)	 (2015).		

Although	Ballou	raises	multiple	issues,	we	discern	no	error	and	write	only	to	

address	 his	 argument	 that	 the	 court-ordered	 restrictions	 on	 his	

communications	 with	 Childs	 violate	 his	 First	 Amendment	 rights.	 	 We	 affirm	

the	judgment.	

                                    I.		BACKGROUND	

       [¶2]	 	 Childs	 and	 Ballou	 were	 married	 in	 2007,	 their	 son	 was	 born	 in	

2008,	 and	 Childs	 filed	 for	 divorce	 in	 2010.	 	 Childs	 sought	 a	 protection	 from	

abuse	 order	 against	 Ballou	 in	 2010	 while	 the	 divorce	 was	 pending,	 and	 a	
2	

protection	order	was	entered	upon	the	parties’	agreement	without	a	finding	of	

abuse.	 	 That	 order	 expired	 in	 2012	 after	 the	 divorce	 judgment	 had	 been	

entered.	

      [¶3]	 	 On	 August	 20,	 2013,	 Childs	 filed	 a	 new	 complaint	 for	 protection	

from	 abuse.	 	 The	 court	 entered	 an	 order,	 again	 by	 agreement	 of	 the	 parties	

and	without	a	finding	of	abuse.		The	2013	order	prohibited	contact	except	by	

email	 and	 only	 regarding	 their	 then	 five-year-old	 son,	 and	 allowed	 for	

emergency	contact	only	through	an	identified	third	party.		The	order	was	set	

to	expire	on	August	24,	2015.	

      [¶4]	 	 On	 August	 11,	 2015,	 Childs	 moved	 to	 extend	 the	 duration	 of	 the	

2013	 protection	 from	 abuse	 order.	 	 The	 court	 held	 a	 contested	 evidentiary	

hearing	 and	 granted	 the	 extension.	 	 The	 court	 entered	 an	 order	 prohibiting	

Ballou	from	“having	any	contact,	direct	or	indirect,”	with	Childs	and	ordered	

that	 rights	 of	 contact	 with	 respect	 to	 the	 child	 would	 be	 arranged	 and	

facilitated	 through	 a	 third	 party.	 	 Ballou	 moved	 for	 findings	 of	 fact	 and	

conclusions	of	law,	see	M.R.	Civ.	P.	52(a);	and	for	the	court	to	reconsider,	alter,	

or	amend	the	judgment,	see	M.R.	Civ.	P.	59(e).		In	a	written	judgment,	the	court	
                                                                                                         3	

denied	 Ballou’s	 post-judgment	 motions	 except	 to	 the	 extent	 that	 it	 made	

additional	factual	findings.1			

        [¶5]	 	 The	 following	 facts	 found	 by	 the	 court	 are	 based	 on	 competent	

evidence	in	the	record.		See	Smith	v.	Hawthorne,	2002 ME 149,	¶	15,	804 A.2d
1133.		By	2013,	Ballou	was	going	to	Childs’s	home	almost	every	day,	even	at	

times	when	she	had	asked	him	not	to	do	so.		In	July	2014,	Childs	reported	to	

law	 enforcement	 email	 messages	 from	 Ballou	 that	 she	 thought	 violated	 the	

existing	 protection	 order.	 	 In	 some	 of	 those	 messages	 and	 in	 others	 that	 he	

sent	 in	 2013,	 Ballou	 discussed	 matters	 that	 did	 not	 relate	 to	 the	 child,2	

including	 statements	 accusing	 Childs	 of	 seeing	 another	 man,	 mentioning	 his	

previous	request	for	“break-up	sex,”	and	asking	Childs	to	relax	the	protection	

from	 abuse	 order.	 	 Ballou	 also	 began	 repeatedly	 requesting	 that	 law	

enforcement	 officers	 conduct	 “well-being	 checks”	 regarding	 the	 child	 at	

Childs’s	home.		In	September	2014,	Ballou	was	informed	by	the	Sheriff’s	Office	

that	it	would	no	longer	conduct	such	checks	because	Ballou	was	“looking	for	




   1	 	 Ballou	 was	 separately	 charged	 with	 domestic	 violence	 stalking	 and	 violating	 a	 protective	
order.		The	charges	were	to	be	dismissed	in	twelve	months	if	Ballou	agreed	to	modify	the	protection	
from	abuse	order	to	authorize	contact	through	a	third	party	only.		The	modification	never	occurred	
for	reasons	that	have	not	been	explained.	
   	
   2		The	email	messages	that	were	admitted	at	trial	were	lengthy	and	combative,	even	to	the	extent	

that	they	pertained	to	the	child.	
4	

Law	 Enforcement	 to	 violate	 his	 protection	 order	 by	 reporting	 back	 on	 his	

child,	ex-wife’s	home	and	her	actions.”	

      [¶6]	 	 The	 court	 ultimately	 determined	 that	 the	 extension	 of	 the	 2013	

protection	order	was	necessary	because	Childs’s	reasons	for	seeking	an	order	

in	 2010	 and	 2013	 still	 existed	 and	 caused	 her	 fear.	 	 This	 finding	 was	

supported	by	evidence	that,	before	the	2013	order	was	in	place,	Ballou	would	

send	 Childs	 hundreds	 of	 text	 messages	 within	 a	 single	 day	 and	 that	 he	 had	

recently	 again	 been	 sending	 excessively	 long,	 combative,	 and	 frequent	 email	

messages	that	were	not	exclusively	about	the	child.		The	court	found	Ballou—

who	 at	 trial	 dismissed	 Childs’s	 safety	 concerns,	 claiming	 that	 she	 was	

“preoccupied	[with]	how	the	public	perceives	her”—not	to	be	credible	in	his	

testimony	 or	 demeanor.	 	 The	 court	 further	 found	 that	 Ballou’s	 repeated	

requests	for	well-being	checks	on	the	child	amounted	to	stalking.	

      [¶7]		Ballou	timely	appealed.		See	14	M.R.S.	§	1901	(2015);	19-A	M.R.S.	

§	104	(2015);	M.R.	App.	P.	2.	

                                  II.		DISCUSSION	

	     [¶8]	 	 Ballou	 argues	 that	 the	 extension	 of	 the	 protection	 from	 abuse	

order	violates	his	First	Amendment	rights	by	prohibiting	communications	that	

are	not	threatening	and	are	“at	worst	upsetting.”		He	further	argues	that	he	is	
                                                                                       5	

being	penalized	for	exercising	the	right	to	petition	for	official	action,	which	is	

protected	by	the	First	Amendment.	

	     [¶9]	 	 Neither	 at	 the	 hearing	 nor	 in	 connection	 with	 his	 post-judgment	

motions	 did	 Ballou	 argue	 that	 the	 extension	 of	 the	 order	 would	 infringe	 on	

any	of	his	First	Amendment	rights.		Accordingly,	we	review	the	issue	only	for	

obvious	 error	 that	 “affects	 substantial	 rights	 or	 results	 in	 a	 substantial	

injustice.”		See	In	re	Joshua	B.,	2001 ME 115,	¶	10,	776 A.2d 1240 (quotation	

marks	 omitted).	 	 “For	 obvious	 error	 to	 require	 reversal,	 the	 error	 must	 be	

such	as	to	deprive	the	party	of	a	fair	trial	or	to	result	in	such	a	serious	injustice	

that,	in	good	conscience,	the	judgment	cannot	be	allowed	to	stand.”		Id.	¶	11.	

      [¶10]	 To	 address	 Ballou’s	 claim	 of	 a	 serious	 injustice,	 we	 turn	 to	 the	

legislatively	 established	 process	 for	 the	 entry	 and	 extension	 of	 protection	

orders.	 	 “A	 protective	 order	 or	 approved	 consent	 agreement	 is	 for	 a	 fixed	

period	not	to	exceed	2	years.”		19-A	M.R.S.	§	4007(2).		At	the	expiration	of	that	

two-year	period,	“the	court	may	extend	an	order,	upon	motion	of	the	plaintiff,	

for	such	additional	time	as	it	determines	necessary	to	protect	the	plaintiff	.	.	.	

from	abuse.”		Id.;	see	Gehrke	v.	Gehrke,	2015 ME 58,	¶	17,	115 A.3d 1252.		In	

relevant	 part,	 “abuse”	 is	 defined	 to	 include,	 as	 between	 family	 or	 household	

members	such	as	former	spouses,	“[a]ttempting	to	place	or	placing	another	in	
6	

fear	of	bodily	injury	through	any	course	of	conduct,	including,	but	not	limited	

to,	threatening,	harassing	or	tormenting	behavior.”		19-A	M.R.S.	§	4002(1)(B)	

(2015);	see	19-A	M.R.S.	§	4002(4)	(2015).	

       [¶11]	 	 Ballou’s	 appeal	 challenges	 the	 court’s	 application	 of	 this	 statute	

as	a	violation	of	the	First	Amendment.		We	review	the	jurisprudence	regarding	

the	First	Amendment	as	it	pertains	to	harassing	or	abusive	speech,	and	then	

review	the	court’s	application	of	the	protection	from	abuse	statute.	

A.	    The	 First	 Amendment,	 Prior	 Restraint,	 and	 Conduct	 that	 Includes	
       Harassing	or	Abusive	Speech	
	
	      [¶12]	 	 Both	 the	 United	 States	 Constitution	 and	 the	 Maine	 Constitution	

place	great	value	on	the	freedom	of	speech.		“Congress	shall	make	no	law	.	.	.	

abridging	the	freedom	of	speech	.	.	.	.”		U.S.	Const.	amend.	I.		“Every	citizen	may	

freely	 speak,	 write	 and	 publish	 sentiments	 on	 any	 subject,	 being	 responsible	

for	the	abuse	of	this	liberty	.	.	.	.”		Me.	Const.	art.	I,	§	4.	

       [¶13]	 	 We	 do	 not	 question	 the	 importance	 of	 this	 right.	 	 “Freedom	 of	

speech	.	.	.	,	which	[is]	protected	by	the	First	Amendment	from	infringement	by	

Congress,	[is]	among	the	fundamental	personal	rights	and	liberties	which	are	

protected	 by	 the	 Fourteenth	 Amendment	 from	 invasion	 by	 state	 action.”		
                                                                                                         7	

Chaplinsky	 v.	 New	 Hampshire,	 315 U.S. 568,	 570-71	 (1942)	 (quotation	 marks	

omitted).3	

        [¶14]	 	 The	 constitutional	 right	 to	 freedom	 of	 speech,	 however,	 as	 with	

similarly	 protected	 rights,	 is	 not	 absolute.	 	 “[N]ot	 all	 classes	 of	 speech	 are	

subject	 to	 first	 amendment	 protection,”	 State	 v.	 Cropley,	 544 A.2d 302,	 304	

(Me.	 1988);	 see	 also	 Schutz	 v.	 Schutz,	 522 So. 2d  874,	 875	 (Fla.	 Dist.	 Ct.	 App.	

1988),	and	the	right	of	free	speech	“is	not	absolute	at	all	times	and	under	all	

circumstances,”	Chaplinsky, 315 U.S.	at	571.		“The	First	Amendment	.	.	.	is	not	

an	 impenetrable	 shield	 which	 protects	 any	 speech	 or	 conduct,	 whatsoever,	

with	 disregard	 to	 its	 harm	 and	 effect.”	 	 State	 v.	 Whitesell,	 13 P.3d 887,	 900	

(Kan.	2000).	

        [¶15]	 	 The	 use	 of	 speech	 as	 part	 of	 conduct	 designed	 to	 threaten	 or	

harm	 other	 individuals	 will	 not	 find	 protection	 in	 either	 the	 Maine	 or	 the	

federal	constitution.		“Despite	our	First	Amendment	rights,	we	are	not	free	to	

harm	 others	 under	 the	 guise	 of	 free	 speech.”	 	 Id.	 at	 900-01;	 see	 generally	

Galloway	v.	State,	781 A.2d 851,	857-80	(Md.	2001).	

        [¶16]		Accordingly,	the	relevant	question	is	whether	a	court	that	enters	

an	order	restraining	speech	has	restrained	a	person	from	engaging	in	conduct	


   3	
    	 Ballou	 relies	 entirely	 on	 the	 First	 Amendment	 in	 this	 argument,	 and	 we	 therefore	 do	 not	
address	the	Maine	Constitution	further.	
8	

that	is	harassing,	threatening,	or	directly	harmful	to	another	person—conduct	

that	is	not	protected	by	the	First	Amendment.		“As	speech	strays	further	from	

the	 values	 of	 persuasion,	 dialogue	 and	 free	 exchange	 of	 ideas,	 and	 moves	

toward	willful	threats	to	perform	illegal	acts,	the	State	has	greater	latitude	to	

regulate	 expression.”	 	 Whitesell, 13 P.3d	 at	 901  (quotation	 marks	 omitted).		

Thus,	 although	 the	 First	 Amendment	 may	 protect	 the	 right	 to	 communicate	

with	 another	 person,	 it	 does	 not	 protect	 a	 person’s	 choice	 to	 engage	 in	

harassing	 conduct	 with	 a	 purpose	 to	 intimidate	 a	 person	 who	 cannot	 avoid	

hearing	 statements	 that	 place	 them	 in	 fear.	 	See	 State	 v.	 Brown,	 85 P.3d 109,	

112-13	 (Ariz.	 Ct.	 App.	 2004);	 Emmerson	 v.	 Weilep,	 110 P.3d 214,	 218	 (Wash.	

Ct.	App.	2005).	

         [¶17]	 	 Thus,	 “a	 true	 threat	 is	 not	 constitutionally	 protected	 speech.”		

State	v.	Hotham,	307 A.2d 185,	187	(Me.	1973)	(citing	Watts	v.	United	States,	

394 U.S. 705 (1969))	(involving	a	threat	to	police).4		Nor	is	conduct	amounting	

to	 criminal	 harassment,	 see	 17-A	M.R.S.	 §	506-A(1)	 (2015),5	 protected	 by	 the	


     4		See	also	Galloway	v.	State,	781 A.2d 851,	881	(Md.	2000);	Commonwealth	v.	Sholley,	739 N.E.2d
236,	 241	 (Mass.	 2000)	 (“The	 First	 Amendment	 does	 not	 protect	 conduct	 that	 threatens	 another.”	
(quotation	marks	omitted)).	
   	
   5		Pursuant	to	17-A	M.R.S.	§	506-A(1)(A)(1)	(2015),	“A	person	is	guilty	of	harassment	if,	without	

reasonable	cause:	[t]he	person	engages	in	any	course	of	conduct	with	the	intent	to	harass,	torment	
or	threaten	another	person”	after	receiving	a	statutorily	prescribed	form	of	notice	not	to	engage	in	
that	conduct.	
   	
                                                                                                                 9	

First	Amendment.		Cropley, 544 A.2d	at	304-05;	see	also	Thorne	v.	Bailey,	846
F.2d 241,	243	(4th	Cir.	1988)	(“‘Harassment	is	not	communication,	although	it	

may	 take	 the	 form	 of	 speech.’”	 (quoting	 with	 approval	 State	 v.	 Thorne,	 333
S.E.2d 817,	819	(W.	Va.	1985))).6		It	is	the	fact-finder	who	properly	determines	

whether	a	true	threat	or	harassment	has	occurred.		See	Hotham, 307 A.2d	at	

187.	

        [¶18]	 	 We	 have	 not	 yet	 directly	 considered	 the	 application	 of	 the	 First	

Amendment	 in	 the	 context	 of	 a	 restraint	 on	 communication	 imposed	 by	 an	

order	 of	 protection	 from	 abuse.	 	 Ordinarily,	 “[t]emporary	 restraining	 orders	

and	 permanent	 injunctions—i.e.,	 court	 orders	 that	 actually	 forbid	 speech	

activities”—constitute	 prior	 restraints	 on	 speech	 because	 they	 “forbid[]	

certain	 communications	 when	 issued	 in	 advance	 of	 the	 time	 that	 such	

communications	 are	 to	 occur.”	 	 Alexander	 v.	 United	 States,	 509 U.S. 544,	 550	

(1993)	 (quotation	 marks	 omitted).	 There	 is	 a	 “heavy	 presumption	 against	

[the]	constitutional	validity”	of	any	prior	restraint	on	speech.		Neb.	Press	Ass’n	

v.	Stuart,	427 U.S. 539,	558	(1976)	(quotation	marks	omitted).	

        [¶19]		When,	however,	an	individual	speaks	to	another	person,	whether	

through	 telephonic	 or	 other	 electronic	 means,	 “not	 to	 communicate,	 but	 for	

   6		 Cases	 involving	 harassing	 conduct	 are	 distinguished	 from	 those	 involving	 communicative	
conduct	 that	 is	 undertaken	 to	 express	 a	 social	 or	 political	 viewpoint,	 such	 as	 burning	 a	 flag	 as	 a	
statement	or	holding	a	sit-in.		See	State	v.	Brown,	85 P.3d 109,	113-14	(Ariz.	Ct.	App.	2004).	
10	

other	unjustifiable	motives,”	that	conduct	is	not	speech	protected	by	the	First	

Amendment.	 	 Altafulla	 v.	 Ervin,	 189	 Cal.	 Rptr.	 3d	 316,	 323-24	 (Cal.	 Ct.	 App.	

2015)	(quotation	marks	omitted).		Conduct	involving	“constant	surveillance”	

and	 an	 “obtrusive	 and	 intruding	 presence”	 has	 been	 held	 “unwarranted	 and	

unreasonable,”	and	therefore	not	protected	by	the	First	Amendment.		Galella	

v.	 Onassis,	 487 F.2d 986,	 995	 (2d	 Cir.	 1973)	 (involving	 such	 conduct	 by	 a	

member	 of	 the	 media).	 	 The	 First	 Amendment	 does	 not	 provide	 “a	 wall	 of	

immunity”	 for	 tortious	 or	 criminal	 conduct,	 id.,	 and	 “does	 not	 compel	 one	 to	

submit	 to	 unwanted	 or	 detrimental	 association	 with	 another,”	 People	 in	

Interest	of	C.S.M.,	570 P.2d 229,	231	(Colo.	1977).	

      [¶20]	 	 Generally,	 “[c]ourts	 have	 held	 that	 if	 past	 conduct	 has	 already	

been	 adjudicated	 illegal,	 tortious,	 or	 otherwise	 lacking	 in	 constitutional	

protection,	 then	 future	 conduct	 constitutionally	 may	 be	 enjoined.”	 	 Laurie	 S.	

Kohn,	 Why	 Doesn’t	 She	 Leave?	 The	 Collision	 of	 First	 Amendment	 Rights	 and	

Effective	 Court	 Remedies	 for	 Victims	 of	 Domestic	 Violence,	 29	 Hastings	 Const.	

L.Q.	 1,	 50-51	 (2001)	 (footnotes	 omitted).	 	 Specifically,	 in	 cases	 involving	

restraining	 orders,	 courts	 have	 held	 that	 the	 First	 Amendment’s	 protections	

do	 not	 apply	 to	 prevent	 a	 court	 from	 restraining	 “threatening	 or	 abusive	

communications	 to	 persons	 who	 have	 demonstrated	 a	 need	 for	 protection	
                                                                                                       11	

from	 an	 immediate	 and	 present	 danger	 of	 domestic	 abuse.”	 	 Gilbert	 v.	 State,	

765 P.2d 1208,	1210	(Okla.	Crim.	App.	1988).	

        [¶21]	 	 For	 example,	 the	 Court	 of	 Appeal	 of	 California	 rejected	 a	 First	

Amendment	 challenge	 to	 a	 protection	 from	 abuse	 order	 when	 a	 man	 had	

conveyed	 embarrassing	 information	 about	 his	 girlfriend	 to	 others,	 including	

her	 employer,	 and	 had	 severely	 traumatized	 one	 of	 her	 children	 with	 his	

angry	 words	 and	 conduct	 in	 the	 home.	 	 See	 Altafulla,	 189	 Cal.	 Rptr.	 3d	 at	

319-20,	323-24.		The	Oklahoma	Court	of	Criminal	Appeals	similarly	rejected	a	

First	 Amendment	 challenge	 to	 the	 application	 of	 that	 state’s	 Protection	 from	

Domestic	 Abuse	 Act	 when	 a	 defendant	 violated	 a	 no-contact	 order	 entered	

pursuant	 to	 the	 Act	 and	 the	 trial	 court	 revoked	 the	 defendant’s	 suspended	

sentence.	 	 Gilbert,	 765	 P.2d.	 at	 1209-10.	 	 The	 Vermont	 Supreme	 Court	 also	

affirmed	 a	 conviction	 for	 violating	 an	 abuse	 prevention	 order	 against	 the	

defendant’s	First	Amendment	challenge	to	the	underlying	order	when	he	had	

threatened	 violence	 and	 had	 violated	 a	 previous	 protection	 order.	 	 State	 v.	

Mott,	692 A.2d 360,	362,	365	(Vt.	1997).7	




   7		But	see	In	re	Marriage	of	Suggs,	93 P.3d 161,	162	&	n.1,	165-66	(Wash.	2004)	(holding	that	an	

order	violated	the	First	Amendment	as	a	prior	restraint	when	it	restrained	a	police	officer’s	ex-wife	
from	 “knowingly	 and	 willfully	 making	 invalid	 and	 unsubstantiated	 allegations	 or	 complaints	 to	
third	 parties	 which	 are	 designed	 for	 the	 purpose	 of	 annoying,	 harassing,	 vexing,	 or	 otherwise	
harming	[him]	and	for	no	lawful	purpose”).	
12	

      [¶22]		To	disallow	the	imposition	of	an	order	restraining	contact	when	

abuse	 and	 harassment	 have	 already	 occurred,	 and	 a	 person	 has	 a	

demonstrable	 need	 for	 protection	 from	 further	 abusive	 and	 harassing	

conduct,	“would	establish	a	precedent	that	would	leave	persons	powerless	to	

protect	 themselves	 against	 unwanted,	 annoying,	 or	 harassing	 intrusions	 on	

their	privacy.”		People	in	Interest	of	C.S.M., 570 P.2d	at	230-31 (holding	that	a	

no-contact	order	did	not	violate	the	right	to	freedom	of	association).		The	First	

Amendment	 does	 not	 support	 such	 a	 precedent.	 	 See	 Mott, 692 A.2d	 at	 365 

(“Defendant	has	no	First	Amendment	right	to	inflict	unwanted	and	harassing	

contact	 on	 another	 person.”).	 	 Accordingly,	 we	 must	 consider	 whether	 the	

restraint	 imposed	 here	 implicates	 the	 First	 Amendment	 or	 instead	 is	 a	

constitutionally	permissible	restriction	on	abusive	conduct.	

B.	   Extension	of	the	Protection	from	Abuse	Order	Protecting	Childs	

      [¶23]		The	record	before	the	court	demonstrated	that	Ballou’s	conduct	

went	 well	 beyond	 what	 he	 characterizes	 as	 the	 mere	 voicing	 of	 an	 opinion	

about	 his	 child’s	 interests.	 	 The	 court	 carefully	 considered	 Ballou’s	 past	

behavior	before	placing	a	restraint	on	his	future	communications	with	Childs.		

Ballou	had	a	history	of	sending	a	tremendously	excessive	number	of	messages	

to	 Childs,	 and—as	 the	 court	 found—he	 had	 demonstrated	 an	 inability	 to	
                                                                                                                    13	

restrain	himself	while	the	2013	order	was	in	place.		The	court	also	specifically	

found	 that	 he	 had	 used	 law	 enforcement	 to	 intrude	 into	 Childs’s	 home	 and	

stalk	 her,	 see	 17-A	M.R.S.	 §	210-A	 (2015),8	 and	 the	 evidence	 showed	 that	 he	

had	 sent	 messages	 in	 which	 he	 implored	 her	 to	 relax	 the	 restrictions	 on	

contact,	 referred	 to	 “break-up	 sex,”	 and	 leveled	 accusations	 about	 her	

personal	romantic	life.		Ballou’s	intrusions	into	Childs’s	life,	including	through	

lengthy,	 repeated,	 and	 intimidating	 messages,	 constitute	 conduct	 that	 is	 not	

protected	by	the	First	Amendment.		See	Cropley, 544 A.2d	at	304-05;	Gilbert,
765 P.2d	at	1210.	

         [¶24]		The	First	Amendment	does	not	serve	as	a	shield	to	protect	Ballou	

from	 the	 consequences	 of	 his	 harassing	 communications.	 	 See	 Whitesell,
13 P.3d	at	900-01;	cf.	State	v.	Alphonse,	197 P.3d 1211,	1217	(Wash.	Ct.	App.	

2008)	 (“One	 may	 certainly	 voice	 a	 legitimate	 complaint	 without	 resorting	 to	

speech	that	rises	to	the	level	of	tormenting	or	harassing	the	recipient.”).		Nor	

    8	 	 In	 relevant	 part,	 the	 stalking	 statute	 provides,	 “A	 person	 is	 guilty	 of	 stalking	 if:	 [t]he	 actor	

intentionally	 or	 knowingly	 engages	 in	 a	 course	 of	 conduct	 directed	 at	 or	 concerning	 a	 specific	
person	 that	 would	 cause	 a	 reasonable	 person:	 [t]o	 suffer	 serious	 inconvenience	 or	 emotional	
distress.”	 	 17-A	 M.R.S.	 §	210-A(1)(A)(1)	 (2015).	 	 “‘Course	 of	 conduct’	 means	 2	 or	 more	 acts,	
including	but	not	limited	to	acts	in	which	the	actor,	by	any	action,	method,	device	or	means,	directly	
or	 indirectly	 follows,	 monitors,	 tracks,	 observes,	 surveils,	 threatens,	 harasses	 or	 communicates	 to	
or	 about	 a	 person	 or	 interferes	 with	 a	 person’s	 property.”	 	 17-A	M.R.S.	 §	 210-A(2)(A)	 (2015).		
“‘Emotional	distress’	means	mental	or	emotional	suffering	of	the	person	being	stalked	as	evidenced	
by	anxiety,	fear,	torment	or	apprehension	that	may	or	may	not	result	in	a	physical	manifestation	of	
emotional	distress	or	a	mental	health	diagnosis.”		17-A	M.R.S.	§	210-A(2)(D)	(2015).		A	protection	
from	 abuse	 order	 may	 be	 entered	 upon	 a	 finding	 of	 stalking	 even	 if	 the	 definition	 of	 abuse	
contained	in	19-A	M.R.S.	§	4002(1)	(2015)	has	not	been	met.		See	19-A	M.R.S.	§§	4005(1),	4007(1)	
(2015).	
14	

can	 he	 use	 the	 First	 Amendment	 as	 a	 sword	 to	 disrupt	 Childs’s	 life	 through	

behavior	 that	 the	 court	 concluded	 met	 the	 definitions	 of	 abuse	 and	 criminal	

stalking.		See	17-A	M.R.S.	§	210-A;	19-A	M.R.S.	§§	4005(1),	4007(1)	(2015);	see	

also	People	v.	Baer,	973 P.2d 1225,	1232	(Colo.	1999).	

      [¶25]	 	 In	 attempting	 to	 minimize	 his	 past	 abuse	 and	 harassment	 to	

avoid	 restrictions	 on	 future	 communications,	 Ballou	 argues	 that	 no	 single	

email	could	be	understood	to	communicate	an	actual	threat	of	physical	harm.		

That	 argument	 is	 unavailing	 where	 the	 very	 length	 and	 volume	 of	 his	

communications	 displays	 his	 out-of-control	 behavior,	 focused	 directly	 on	

Childs.		The	court	did	not	err	in	finding	the	communication	pattern	itself	was	

evidence	of	a	serious	threat	to	Childs.	

      [¶26]		Given	Ballou’s	history	of	sending	excessive,	combative	messages	

and	 violating	 the	 boundaries	 established	 in	 protection	 orders—including	 by	

involving	law	enforcement—in	a	way	that	would	cause	a	reasonable	person	to	

fear	 bodily	 injury	 and	 suffer	 emotional	 distress,	 the	 court	 did	 not	 commit	

error,	much	less	obvious	error,	in	prohibiting	Ballou	from	having	any	direct	or	

indirect	contact	with	Childs	and	requiring	that	rights	of	contact	with	the	child	

be	arranged	and	facilitated	by	a	third	party.		See	17-A	M.R.S.	§	210-A(1)(A)(1),	

(2)(A),	 (2)(D);	 19-A	M.R.S.	 §§	4002(1)(B),	 4005(1),	 4007(1).	 	 The	 First	
                                                                                                                          15	

Amendment	offers	no	protection	for	the	type	of	conduct	that	led	to	the	court’s	

order,	and	the	court	did	not	violate	the	United	States	Constitution	by	ordering	

Ballou	to	cease	having	direct	or	indirect	contact	with	Childs.	

         [¶27]		Similarly,	a	court	does	not	violate	the	First	Amendment	right	of	

petition9	 when	 it	 imposes	 legal	 consequences	 for	 communications	 to	 law	

enforcement	 that	 have	 been	 found	 to	 “demonstrate[]	 a	 criminal	 intent	 to	

harass,	intimidate,	torment,	and	embarrass.”		Alphonse, 197 P.3d	at	1216-17;	

see	 also	 Thorne, 846 F.2d	 at	 244  (“The	 Petition	 Clause	 does	 not	 provide	

blanket	immunity	for	unlawful	conduct.”).		Although	Ballou	was	not	criminally	

tried	or	convicted	on	the	charge	of	stalking	because	of	an	agreement	with	the	

prosecutor	that	he	inexplicably	did	not	fulfill,	the	court	found	that	his	conduct	

in	repeatedly	using	law	enforcement	to	check	on	Childs	and	intrude	into	her	

home	constituted	stalking.		We	discern	no	error	in	that	determination,	and	the	

court	did	not	violate	the	First	Amendment.	

         The	entry	is:	

                             Judgment	affirmed.		
	
	        	         	         	        	         	




    9	 	 “Congress	 shall	 make	 no	 law	 .	 .	 .	 abridging	 .	 .	 .	 the	 right	 of	 the	 people	 .	 .	 .	 to	 petition	 the	

Government	for	a	redress	of	grievances.”		U.S.	Const.	amend.	I.	
16	

	
On	the	briefs:	
	
     Christopher	C.	Taintor,	Esq.,	Norman,	Hanson	&	Detroy,	LLC,	
     Portland	for	appellant	Robert	A.	Ballou	Jr.	
     	
     Gina	M.	Childs	did	not	file	a	brief	
	
	
	
South	Paris	District	Court	docket	number	PA-2013-95	
FOR	CLERK	REFERENCE	ONLY