The case of Commonwealth v.
Lambert, involved a Protection from Abuse Order entered
against Lambert, the victim's ex-boyfriend.
Interestingly, and likely an insight into the voluminous use of
social media by Lambert, was the specific PFA Order instruction
that he shall refrain from posting "any remark(s) and/or
images regarding Plaintiff, on any social network(s), including,
but [not] limited to, Facebook, Myspace, Twitter, or any other
electronic networks." In other words, he was not permitted to
post anything to social media pertaining to his ex-girlfriend. It
should be noted that a Protection from Abuse Order restricts a
perpetrator from having direct or indirect contact with a victim.
If they do have contact, they could be subject to an Indirect
Criminal Contempt. PFA Orders are civil restraining orders to
protect a victim, but they have criminal repercussions: a violation
– either verbally, in writing, or physically – will
land someone in jail.
With that context in mind, we look at what Lambert did to
violate the PFA Order. A day after the Order was entered, he posted
a series of Facebook comments in which he does not name his
ex-girlfriend, but that she was clearly the subject of the posts.
As the Superior Court points out, Trial Courts need to consider the
context of the violation and "temporal proximity" of the
statements. Perhaps if Lambert had not made his posts a day after
he was found to have abused his ex-girlfriend, the context and
temporal proximity would have led the court to a different
interpretation. The posts were not actually threatening or
outwardly menacing (though the victim could certainly feel
otherwise), but, as the Court considered, the posts were
victim. They were discovered by the
ex-girlfriend when she went to his Facebook page – she
testified that she regularly checks the page for her own knowledge
since he is such a voracious social media user that if he was angry
or having mental health issues she would have notice of them before
risking an interaction with him.
The victim let her local police know about the postings; they
contacted the District Attorney's office, who then initiated
the contempt action. He was subsequently found guilty of contempt.
That conviction led to the appeal by Lambert as to whether his
indirect criminal contempt conviction was a violation of his First
Amendment rights to free speech and whether the lack of wrongful
intent (i.e. the posts were not threats) should have led to
The main issue the Superior Court considered was the First
Amendment claim. The Court's opinion on that issue can be
summarized with concept that the PFA Order is contact-based
In other words, the PFA does not restrict speech so much as it
restricts who the speech is directed at. This is an important
distinctions since restrictions on content must be strictly
scrutinized. Here, however, the contact was – directly
or indirectly – made to the victim through Lambert's
public (likely another factor) Facebook profile. By making
statements about the victim on a public profile where she could
reasonably be exposed to them, Lambert was, effectively, attempting
to contact the victim.
As a consequence, his conviction was upheld. His mental intent
argument – which successfully led to the overturning of the
conviction – was unsuccessful, as well, since his mental
intent to threaten was not at issue; merely the attempt to
mattered – whether it was to threaten or say he was sorry is
immaterial. It should also be noted that the standard of proof for
was the criminal justice system's "beyond a reasonable
doubt," whereas the standard for finding abuse occurred is the
lower "preponderance of the evidence" standard, though an
indirect criminal contempt carries the "beyond a reasonable
The broader implication is that Facebook and social media can be
and will be considered forms of communication with the victim of a
PFA. Shouting into the void of social media is not without
consequences and, as Lambert
demonstrates, the intent is secondary to the act of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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