In Oregon, words alone rarely support a stalking protective order. When the contacts a petitioner relies on are letters, emails, texts, or spoken statements, the Oregon Constitution requires proof of an actual threat of violence, not just communication that is unwanted, upsetting, or offensive.
Many stalking protective order (SPO) cases arise after a breakup, a falling-out between neighbors, or a workplace conflict. The contact at issue is often a stream of messages. Understanding the difference between expressive and non-expressive contact is often the key to the case, whether you are asking for an order or defending against one.
What a petitioner must prove
A civil SPO under ORS 30.866(1) requires proof, by a preponderance of the evidence, that:
the respondent "intentionally, knowingly or recklessly engage[d] in repeated and unwanted contact" with the petitioner or a member of the petitioner's immediate family or household, "thereby alarming or coercing" the petitioner;
"[i]t is objectively reasonable for a person in the victim's situation to have been alarmed or coerced by the contact"; and
the contact "causes the victim reasonable apprehension regarding the personal safety" of the victim or a family or household member.
"Repeated" means two or more contacts, and they must fall within the two years before the petition. Swarringim v. Olson, 234 Or App 309, 311-12 (2010). "Alarm" means "to cause apprehension or fear resulting from the perception of danger," and the Court of Appeals has explained that "danger" refers "to a threat of physical injury, not merely a threat of annoyance or harassment." Reitz v. Erazo, 248 Or App 700, 706-07 (2012).
The court looks at contacts one at a time: "each 'contact,' individually, must give rise to subjective and objectively reasonable alarm or coercion." Id. at 706.
What "expressive contact" means
Expressive contact is contact made of words. The person is saying or writing something, not physically doing something.
Examples of expressive contact:
letters, cards, and postcards
texts, emails, and social media messages
phone calls and voicemails
a note left on a door or windshield
a message passed along through a friend
Non-expressive contact is about actions: showing up where someone is, following them, waiting outside their home or work, or damaging their property.
Why the difference matters
The Oregon Constitution protects the right to speak and write freely. That means a court cannot issue an order just because someone's words were rude, upsetting, or unwanted. For words to count, they have to be a real threat.
A simple way to think about it is to ask three questions about each message:
Would it make a reasonable person afraid of being seriously hurt, soon?
Is it clear, and not a joke, an exaggeration, or something said in anger that no one would take literally?
Is it likely the person will actually do it?
If the answer to any of these is no, the message does not count toward a stalking protective order.
To illustrate (these are made-up examples, not quotes from real cases): "You're a liar and I never want to see you again" is hurtful, but it is not a threat. "I'm so angry I could scream" is not a threat. A specific message saying the sender is coming over tonight to hurt you could be.
When it is both
Some contact mixes words and actions. Leaving a note at someone's door is words (the note) and an action (going to the door). A court may look at each part separately. Courts have also treated mailed packages along with letters and emails as expressive. Michieli v. Morgan, 192 Or App 550, 553-55 (2004).
The constitutional rule: State v. Rangel
Article I, section 8, of the Oregon Constitution provides that "[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever." In State v. Rangel, the Oregon Supreme Court considered whether the criminal stalking statute was overbroad because its definition of "contact" includes speech and writing. 328 Or 294, 296 (1999).
The court held that, "as construed," the statute is not overbroad. Id. at 308. The construction is what matters. The court explained:
"If the contact in question amounts to communication by speech or writing, only a threat will be sufficient to 'cause apprehension or fear resulting from the perception of danger,' as ORS 163.730 requires." Id. at 303.
A qualifying threat "is a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts." Id. It must "convincingly express[] to the addressee the intention that it will be carried out, and that the actor has the ability to do so." Id. at 306.
Just as important is what a threat is not. The standard excludes "the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee." Id. at 303 (quoting State v. Moyle, 299 Or 691, 705 (1985)).
How the rule applies in civil SPO cases
Rangel was a criminal case, but the Court of Appeals applies the same requirement to civil SPOs. When contacts "are expressive in nature, Article I, section 8, of the Oregon Constitution requires that the person requesting the stalking protective order must establish three additional facts": the contact communicates a threat that "instills in the addressee a fear of imminent and serious personal violence," the threat is "unequivocal," and the threat is "objectively likely to be followed by unlawful acts." Michieli, 192 Or App at 554-55. Three cases show how demanding that standard is.
Michieli v. Morgan, 192 Or App 550 (2004). After the petitioner asked him to stop, a former supervisor sent more emails, called her 30 times, and mailed cards, letters, and two packages. 192 Or App at 553-54. The court reversed. It found "ample evidence of repeated and unwanted contact" that reasonably caused alarm, but the contacts were "purely expressive" and there was "a complete absence of evidence of an 'unequivocal' threat." Id. at 555.
Swarringim v. Olson, 234 Or App 309 (2010). A neighbor told the petitioner's husband he knew people at their son's school "who will slit his throat," and told their nine-year-old daughter he would find someone to beat her up. 234 Or App at 313. The court reversed. Both statements "involved only speech" and described what someone else would do "at some point in the future," with no evidence of fear of imminent violence from the speaker. Id. at 314-15.
Reitz v. Erazo, 248 Or App 700 (2012). At a store, the respondent called the petitioner names and said, "[y]ou should be afraid of me, they're not going to stop me, I can do whatever I want." 248 Or App at 704. The court reversed. The statements did "not meet the Rangel standard for speech-based contacts." Id. at 706.
Non-expressive contact does not escape scrutiny either. It need not be a threat, but it still must cause objectively reasonable fear of physical injury. In Reitz, pushing the petitioner about 10 times and following her around the store did not meet that standard. Id. at 706-07. Speech that fails the Rangel test can still be "relevant context" for non-expressive contacts. Id. at 706 (quoting Habrat v. Milligan, 208 Or App 229, 237 (2006)).
What this means for your case
Sort every contact. Before a hearing, list each contact and decide whether it is expressive or non-expressive. The answer decides which standard applies.
Unwanted is not enough. Repeated, unwanted, even alarming messages do not support an SPO unless at least two of them are unequivocal threats of imminent and serious personal violence. Michieli, 192 Or App at 555.
Offensive is not enough. Insults, profanity, and angry venting are protected unless they cross into a true threat. Rangel, 328 Or at 303; Reitz, 248 Or App at 706.
Threats about the future, or about what others might do, often fall short. Swarringim, 234 Or App at 314-15.
Physical contact still needs real danger. Non-expressive contact must cause objectively reasonable fear of physical injury, not just annoyance or harassment. Reitz, 248 Or App at 706-07.
For respondents: words written in anger can still hurt your case as context, and contact after you are asked to stop is always risky. Stop contact and get legal advice.
Talk to a lawyer
If you are seeking a stalking protective order, or one has been filed against you, the details matter. Learn more about our stalking order defense services, or contact Paretta Law, LLC, at (503) 453-4273 to discuss your situation.
This article is general information, not legal advice, and does not create an attorney-client relationship. Statutes and case law change; the authorities discussed reflect the cited decisions as of their dates. Consult an attorney about your specific facts.