The male plaintiff and the female defendant met on a dating website. They went out a few times, then the man told the woman to stop contacting him. She didn’t take it well. She kept calling him, so he blocked her number. Then she posted naked pictures of him on social media. She went to his home and refused to leave. He called 911 and filed a domestic abuse restraining order (DVRO) request that was granted. She appealed, denying she ever dated him. She also argued that the court’s order, which forbade her from posting about him on social media, was unconstitutional prior restraint. Both arguments failed.

Tomas Czodor filed a DVRO against Xingfei Luo under the Domestic Violence Prevention Act (DVPA) in September 2018. In an unpublished opinion authored by Justice Maurice Sanchez of Division Three of the Fourth District of the California Court of Appeal, a three-justice panel affirmed the ruling of Orange Superior Court Judge Michael E. Perez. When Perez heard Luo’s request to end the initial DVRO, the court denied her request and amended the initial DVRO. This led to the appeal before the appellate court.

Czodor’s request for a DVRO, valid until October 2023, was granted under a provision of California Family Code, Sec. 6320, a 2018 Act that was amended in 2020. It allows courts to issue ex parte orders to “enjoin a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating…making annoying telephone calls…contacting by mail, (and) coming within a specified distance…” of the person who requested the Order. In the original DRVO and Luo’s response to it, both parties agreed that they had a “dating relationship.” DVROs require the perpetrator to have or had a “dating or engagement relationship with the victim.”

While telephone, mail and in-person abuse are specifically mentioned, the California Family Code does not specifically address online harassment. This is what Luo committed when she posted naked pictures of Czodor on Facebook, Instagram and Yelp. She also used the Internet to contact plaintiff’s friends in an attempt to destroy his online reputation. The DVRO ordered Luo to “cease posting the picture or likeness of the Moving Party or refer to him by name on any social media website or blog.” She was also ordered to “remove all pictures or references to Czodor from any social media website or blog she may have posted.” She failed to do so.

At the hearing to end the DVRO, Luo argued that the restraining order’s references to social media were "overly broad, vague, ambiguous, and unlawful due to the infringement on my First Amendment rights."

Justice Sanchez received several motions in Luo’s appeal, all of which asked for a review of evidence that was not presented at trial. This included court reporter transcripts and transcripts of telephone conversations between Luo and Czodor. Most motions were denied because they were not presented at trial. The Justice noted that “additional evidence” not presented at trial must be “used sparingly and only in exceptional circumstances.” He ruled that Luo’s requests did not meet that standard. The opinion also refused to revisit her attempts to deny she ever had a dating relationship with Czodor because that matter was “fully adjudicated” at trial.

The opinion’s discussion of the ruling began by providing the court’s standard of review, which requires an abuse of discretion for reversal. It found there was none. It addressed Luo’s First Amendment arguments, in which she contends that the court order was prior restraint. Sanchez defined this as “an administrative or judicial order that forbids certain speech in advance of it being made.” He clarified, however, that prior restraint applies only to speech that is protected by the First Amendment. This excludes words that “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."' Luo’s social media speech was just that.

The opinion then cited several precedents that ruled that speech that constitutes abuse is not protected by the constitution. For example, material that a husband downloaded from his wife’s cell phone was found to be abusive and not protected by the First Amendment.

The Fourth District concluded its opinion by ruling that Section 6320 is neither overbroad nor vague. It did not forbid all of Luo’s social media speech. It only "enjoin(ed) Luo from posting material about Czodor that would constitute abuse.” In addition, the DVRO did not prohibit Luo from all of her postings, only those that were abusive to Czodor. The order was not vague when it forbade postings that disturbed the peace. On the contrary, actions that are “disturbing the peace “can be ascertained with relative ease and to a reasonable degree of certainty” by reading Family Code Section 6320.

Both of Luo’s requests were denied, and she will also have to pay the plaintiff’s costs. This case is another example of how First Amendment law must evolve to cover media that was never envisioned by the Founding Fathers. It also challenges state laws that seek to protect victims from social media abuses that can cause unimagined harm.