Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven L. Marquart, Judge. AFFIRMED.
The opinion of the court was delivered by: Maring, Justice.
[¶1] Scott Boyle appeals from a criminal judgment entered after a jury found him guilty of violating a disorderly conduct restraining order. We conclude there was sufficient evidence Boyle violated the restraining order, and we affirm.
[¶2] Boyle and Jennifer Carter have one child together. Boyle has visitation with the child and is allowed to contact the child once each day by telephone under the terms of a district court order.
[¶3] In 2007, Carter moved for a disorderly conduct restraining order against Boyle. Carter claimed she feared for her own and her child's safety, alleging Boyle made harassing phone calls to her. A temporary disorderly conduct restraining order was issued. Boyle filed an affidavit responding to Carter's allegations, claiming he called Carter to speak to the child and arguing the phone messages were constitutionally protected speech. A hearing was held, which Boyle attended, and the district court found Boyle's actions constituted disorderly conduct. The court issued a two-year restraining order in favor of Carter, prohibiting Boyle from (1) having any physical contact with or coming within 100 feet of Carter; (2) calling, writing, or leaving messages for Carter, except through an attorney; and (3) coming within 100 feet of Carter's place of employment. The court did not address Boyle's claims that his conduct was constitutionally protected.
[¶4] Boyle appealed, and the restraining order was not stayed while the appeal was pending. In Hutchinson v. Boyle, 2008 ND 150, 753 N.W.2d 881, this Court reversed the district court's order and remanded, holding the court was required to consider Boyle's constitutional claims prior to entering the order. We also noted that the case could present a potential conflict between the terms of the restraining order and the terms of the visitation order, which provides for Boyle's right to contact the child through Carter, but that Carter had agreed the restraining order should not interfere with Boyle's right to contact the child. Id. at ¶ 10 n.1. We advised the district court that if an order was issued on remand, it should reflect Carter's acknowledgment that the restraining order does not interfere with Boyle's right to contact the child. Id. On remand, the district court re-issued the order.
[¶5] While the prior appeal was pending, Boyle was charged with violating a disorderly conduct restraining order under N.D.C.C. § 12.1- 31.2-01, alleging he left two voicemail messages for Carter in February 2008 in violation of the terms of the restraining order. The State filed a motion in limine requesting the court issue an order prohibiting Boyle from arguing to the jury that the restraining order infringes upon his constitutional rights. Boyle filed a motion in limine requesting the court exclude evidence of constitutionally protected activity, including the voicemail messages. At a pretrial conference, the court denied Boyle's motion stating it could not say as a matter of law that the conduct was constitutionally protected, but it would instruct the jury that if the contact with Carter was for the purpose of having contact with the child he must be found not guilty.
[¶6] A jury trial was held on January 6, 2009. The jury was instructed, "[u]nder the Disorderly Conduct Restraining Order, the Defendant has a right to have contact with their child through Jennifer Carter. If you find that Defendant's contact with Jennifer Carter was for that purpose, the Defendant is not guilty of violating the Disorderly Conduct Restraining Order." The jury found Boyle guilty.
[¶7] Boyle argues the district court erred as a matter of law when it ruled his February 2008 telephone calls to Carter were not constitutionally protected activity. He contends that the messages left on the answering machine were constitutionally protected speech, that he has a constitutional right to the companionship, care, custody, and management of his child, and that the messages left for Carter were his attempt to contact the child and protect his rights to parent the child.
[¶8] Disorderly conduct is "intrusive or unwanted acts, words, or gestures that are intended to adversely affect the safety, security, or privacy of another person. Disorderly conduct does not include constitutionally protected activity." N.D.C.C. § 12.1-31.2-01(1). Whether speech is constitutionally protected is a question of law, which is fully reviewable on appeal. State v. Curtis, 2008 ND 93, ¶¶ 7, 10, 748 N.W.2d 709. We use caution in reviewing claims of constitutionally protected activity, and we independently scrutinize the record when free speech arguments are made to see if the charged conduct is protected. State v. Barth, 2005 ND 134, ¶ 8, 702 N.W.2d 1. Evidence of constitutionally protected activity is inadmissible. Curtis, at ¶ 7.
[¶9] The right to free speech is not absolute and may be restricted. Bolinske v. North Dakota State Fair Ass'n, 522 N.W.2d 426, 431 (N.D. 1994). An individual's constitutional rights may be restricted by a judicial order. See State v. Holbach, 2009 ND 37, ¶¶ 13-14, 763 N.W.2d 761 (holding defendant's right to travel had been restricted by a judicial order). A restraining order restrains an individual's liberty and may restrain the right to certain communication or to be in certain places. See Baker v. Mayer, 2004 ND 105, ¶ 14, 680 N.W.2d 261.
[¶10] Here, the restraining order restricted any constitutional right Boyle had to contact Carter for purposes other than communicating with the child. Any conduct that violates the order is not constitutionally protected activity, and therefore contacting Carter for any purpose other than communicating with the child was not a constitutionally protected activity.
[¶11] Parents have a constitutional right to parent their children. Lindberg v. Lindberg, 2009 ND 136, ¶ 25. In cases such as this, there is the potential for a restraining order to conflict with a child custody and visitation order, and courts must ensure the orders are consistent and do not conflict. Here, the initial restraining order prohibited all contact with Carter, and did not explicitly state there was an exception for contacting the child through Carter. This Court reversed the initial order and remanded for the district court to consider Boyle's claims that he was engaged in a constitutionally protected activity, and we advised the court that the order should reflect Carter's acknowledgment that the restraining order does not interfere with Boyle's right to contact their child. Hutchinson, 2008 ND 150, 753 N.W.2d 881. On remand, the district court considered Boyle's constitutional claims and re-issued the restraining order prohibiting any contact with Carter, but clarified that the restraining order does not interfere with Boyle's right to contact the child through Carter. The re-issued order was not appealed. In the trial ...