A Missoula woman’s order of protection against an online troll has survived a legal challenge.
On June 19, Missoula County District Court Judge Shane Vannatta upheld Lisa Davey’s order of protection against Mike Schlosser, who targeted her with lewd, profane and menacing tweets and online posts. Schlosser’s attorneys challenged the protection order on free speech grounds, but in his ruling, Vannatta sided with Davey.
“I was not surprised,” she said Tuesday. “I’d anticipated that they’d uphold the decision.” The protection order expired two days after Vanatta's ruling, and Davey said she does not plan to seek a new one.
“As long as Mike does not contact me in any way or start showing up around me, there’s no reason to,” she said.
Davey and Schlosser have been at odds since November 2017, when the University of Montana was poised to rehire Bobby Hauck as football coach. Davey started an online petition asking the university not to rehire Hauck, referencing misconduct and criminal behavior involving players when Hauck held that role in the 2000s.
Schlosser responded on Twitter and his online UM fan forum, MaroonBlood, making violent and sexually explicit posts about Davey, and sharing her boyfriend’s physical address.
“We installed security cameras all the way down the driveway,” Davey remembered.
Hauck was rehired and subsequently appeared on a panel with Davey and others at a public forum on the issue of sexism and sexual assault.
In June 2018, Missoula Municipal Court judge Kathleen Jenks granted Davey an order of protection against Schlosser, barring him from coming within 1,500 feet of her and the locations she frequents, and from posting about her online.
It made a difference, Davey said. “I was able to go to the Griz games this year and realize that if I saw him, I had a course of action. I could call campus police.”
But in August, Schlosser appealed the order in Missoula County District Court. His attorneys, Nick Brooke and Colin Stephens with Missoula-based firm Smith & Stephens, argued that the order of protection violated his rights to free speech, and that “Mike Schlosser’s comments on fan forums and social media were brutish, cruel, and protected by the First Amendment.”
Vannatta’s ruling found otherwise. “Schlosser’s posts/tweets are ‘direct threats’ and ‘speech that tends to incite an immediate breach of the peace’ — two exceptions to First Amendment protection,” he wrote. Schlosser’s posts and tweets had mentioned Davey in connection with rape and called for protests at her workplace.
“The posts/tweets were not a matter of public discourse but were true threats and incitements to breach the peace under the law,” the judge concluded, upholding the order.
The ruling’s practical impact didn’t last long. On June 21, just two days after it was issued, Davey’s order of protection expired. Schlosser’s attorney, Nick Brooke, said that, while he was “disappointed” in the ruling, the order “was only on my client for an additional two days because of how long it took the court to decide this matter.”
Even though the protection order has expired, Davey said she feels vindicated — and is glad this line has been drawn. “Vile speech is very different from speech that leads directly to violent action,” she said. “He can swear as much as he want … (but) he can’t rally people to show up at my house and rape me. That’s a very different communication.”
The U.S. legal system has long scrutinized the acceptable bounds of free speech, and Anthony Johnstone, a professor at the University of Montana’s Alexander Blewett III School of Law, sees two contested issues raised by Davey’s case.
The order of protection, he noted, barred Schlosser from making any comments about Davey online — not just threatening ones. “Those kinds of orders have raised serious free speech issues” elsewhere, he said.
Vannatta also found that “it is reasonable to conclude that (Schlosser) knew the hashtags would incite a breach of the peace.”
“It’s not whether the target of the threat feels it’s a threat. It’s whether the maker of the threat knows or intends to intimidate the target,” Johnstone said. “Whether the person making the threats must be proven to have known of their intimidating nature … that’s the second contested free speech issue that this case appears to present.”
For the moment, this case won't bind future decisions. “It is a good predictor that the same judge would rule the same way (in a similar case), but it would have to come from a higher court” to have precedential value, Johnstone said. No appeal to the Montana Supreme Court had been filed as of Tuesday afternoon.
As the legal proceedings unfolded, Davey has kept a skeptical eye on UM’s football program. “I still think that the coach has a lot of responsibility for creating a culture that is not misogynistic,” she said.
But at the same time, “I think the football community in general has been great.”
“I was a little bit nervous, I’m not going to lie, to go to that first game last year. Sometimes they josh me a little bit.”