CALIFORNIA — Danielle Brekke, 17, and Dean Wills, 15, thought they were in love. But a restraining order issued by a California trial court–which Wills’ attorney thinks violates his First Amendment rights–will keep them apart.
The appellate court for the third district in California on Jan. 25 upheld a restraining order issued by a California superior court. The order, prompted by a series of letters written by Wills, will expire in June 2005 when Danielle Brekke turns 18.
Beverly Brekke, Danielle’s mother, decided Wills’ influence negatively affected her daughter after Danielle’s behavior began to change for the worse at home and in school upon dating Wills, according to Beverly Brekke. Wills began to write letters to Danielle, which he claimed Beverly Brekke was not supposed to see. The letters contained profanities and a fantastical scheme of torture-murder of Danielle Brekke’s parents, according to court documents.
In the letter describing the murder plot, according to court documents, Wills wrote that Danielle Brekke’s parents would be tied to a tree surrounded by rabid, starving dogs. Wills and Danielle Brekke would then fly in a plane overhead and drop bloody meat on the parents, causing the dogs to attack.
After reading the letters written by Wills, Beverly Brekke filed an injunction for a restraining order that prohibited Wills from coming within 100 feet of Danielle Brekke outside school and 20 feet inside school.
The restraining order was issued under California Civil Procedure 526.6, which stipulates that a person may seek a restraining order if he or she has suffered harassment, defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.”
After the trial court granted the restraining order, Wills appealed on multiple grounds, including that he believed his First Amendment right to freedom of speech was violated.
The appellate court ruled in Brekke v. Wills that the restraining order did not violate Wills’ free speech rights because his speech was between “purely private parties, about purely private parties and on matters of purely private interest,” which the Supreme Court ruled is less of a First Amendment concern.
“I think private communications are deserving more of free speech, unless it raises to a criminal level,” said Freda Pechner, Wills’ attorney, who is considering filing a petition for review.
But the private nature of the letters Wills wrote is key to why they are less constitutionally protected than if he wrote them in a public forum, said Thomas Burke, a First Amendment media attorney in California.
“If Wills had made the same comments in a student publication, or if he had made the same comments standing on a chair in the middle of a public forum, and there was some connection to what he was saying to some larger event, I don’t know that [the court] would have reached the same result,” Burke said.
Wills also used song lyrics in the letters, and Pechner argued that song lyrics are entertainment, which is protected under the First Amendment. However, the court ruled that because the lyrics were not sung, not used for entertainment purposes and “ridiculed and annoyed Beverly Brekke,” they were not constitutionally protected but fell under the California statute.
“Now a parent can go in and get a restraining order if someone is annoying,” Pechner said. “The goal of the [California] statute was to get a restraining order because someone is really fearful about someone else’s conduct.”
According to Pechner, Beverly Brekke testified in trial court that she knew the letters were never meant to be a threat and that no one took them seriously.
“She knew the letters were not credible,” Pechner said. “My client is a teenage boy.”
Danielle Brekke asked the court to revoke the restraining order twice, because she did not feel Wills was a threat to her or her family’s lives, according to Pechner.
“She was denied her request,” Pechner said. “The law refused to allow the daughter, on her own, to say my client didn’t harass her, he didn’t annoy her, and the court said, ‘Forget it, we’re not going to pay any attention to you.’”
Wills, who is bound by the restraining order despite Danielle Brekke’s objection, now faces four criminal charges for violating the conditions of the order, Pechner said.
“This girl approached my client,” Pechner said. “He didn’t run away from her, so he got charged criminally with violating the restraining order because she came and talked to him. She passed a note to him through a friend of theirs, which he read and responded to, which was another violation of the restraining order. All he didn’t do was run away from her as fast as he could.”
Beverly Brekke and her counsel did not attend court for the appeals hearing, according to court documents, and she has since moved out of state, leaving her daughter to live with her father in California, Pechner said.
The appellate court misinterpreted the state law, Pechner said, which she thinks sets a dangerous precedent.
“If you look at the statute it has a lot of things: threatening, assaulting, phoning,” Pechner said. “It has about 15 things in it, and one of them is annoying. To then say that annoying behavior in and of itself not accompanied by anything else can serve as the basis of a restraining order is ridiculous.”
–By Elisabeth Salemme