Indirect Contact via Public Social Media Posts Violates Stalking Protection Orders: RSA 173‑B’s “Contact” Definition Governs RSA 633:3‑a Orders

Introduction

In State v. Dunbar, 2025 N.H. 26, the New Hampshire Supreme Court affirmed a superior court order finding that a defendant violated both a probation condition and the terms of a suspended sentence by communicating with a protected person through public Facebook posts. The case squarely addresses whether “indirect” contact prohibited by a stalking final order of protection encompasses public social media messages aimed at the victim, and whether such posts may be treated as unprotected “true threats” under the First Amendment when revoking probation or imposing a suspended sentence.

Two core issues were presented:

Whether public Facebook posts, expressly directed at the victim and intended to notify her, constituted “contact” in violation of a no-contact provision in a stalking protection order issued under RSA 633:3‑a.
Whether those posts could serve as the basis for probation violation and imposition of a suspended sentence, or whether they were protected speech under the First Amendment.

Chief Justice MacDonald, writing for a unanimous Court, answered both questions against the defendant. The Court held that the statutory definition of “contact” in RSA 173‑B:1, IV applies to stalking protection orders issued under RSA 633:3‑a, III‑a; that “indirect contact” includes public social media posts intended to notify a protected person and that actually reach her; and that the posts here were unprotected “true threats,” with sufficient evidence that the defendant acted at least recklessly in issuing them. The Court thus affirmed the finding of a probation violation and the partial imposition of the defendant’s suspended sentence, notwithstanding his acquittal on related criminal charges.

Summary of the Opinion

The Supreme Court affirmed the trial court’s rulings that:

The defendant violated a stalking protection order by indirectly contacting the victim through public Facebook posts. The Court applied RSA 173‑B:1, IV’s definition of “contact” to a protection order issued under RSA 633:3‑a, III‑a, reasoning that the latter statute promises “the same” forms of relief as RSA chapter 173‑B.
On the facts, the posts were aimed at the victim (referring to her address, using “notification” headings, and naming her and her deceased husband with near-identical aliases) and included threats; other users alerted the victim, and she read them. These steps satisfied the “indirect contact” component, consistent with State v. Craig, and with the statutory requirement of “any action to communicate… directly or indirectly.”
The posts were “true threats” unprotected by the First Amendment. Applying Counterman v. Colorado, the Court found the content plainly threatening and the defendant at least reckless, reinforced by his admissions to a police officer that his posts could reasonably put someone in fear.
Because probation/suspended sentence violations are adjudicated under a preponderance standard and are remedial to enforce conditions (not criminal punishment for the underlying acts), the State’s failure to secure a criminal conviction did not preclude the probation and suspended sentence findings.

Analysis

Precedents and Authorities Cited

State v. Craig, 167 N.H. 361 (2015): The Court’s principal New Hampshire authority addressing Facebook postings as “contact” under RSA chapter 173‑B. Craig held that posts on a public Facebook profile—combined with steps to convey the message to the protected person and awareness the person was reading them—could constitute indirect “contact.” Dunbar relies on Craig’s logic and extends it to stalking orders issued under RSA 633:3‑a by incorporating RSA 173‑B’s definition of “contact.” Dunbar also clarifies that the “steps to convey” requirement can be satisfied when a defendant publicly posts messages expressly addressed to the victim in “notification” form and the messages, in fact, reach her via third parties.
Fisher v. Minichiello, 155 N.H. 188 (2007): Supports cross-application of RSA 173‑B interpretations to RSA 633:3‑a, III‑a orders because the latter statute mandates that available relief be “the same as” in RSA chapter 173‑B. Dunbar operationalizes this principle by expressly importing the 173‑B:1, IV definition of “contact.”
State v. Luikart, 174 N.H. 210 (2021): Establishes that imposing a suspended sentence is a remedial response to violation of conditions, not punishment for new criminal conduct, and that acquittal on related criminal charges does not control the suspended sentence proceeding. Dunbar applies this framework to reject preclusion based on the defendant’s acquittals.
State v. Kay, 162 N.H. 237 (2011): Confirms that probation may be revoked upon proof, by a preponderance of the evidence, of a violation of probation conditions; appellate review asks whether, viewing the evidence in the light most favorable to the State, the decision is supported.
Counterman v. Colorado, 600 U.S. 66 (2023): Defines the First Amendment “true threats” category and holds that the State must prove at least recklessness as to whether a statement is threatening. Dunbar applies Counterman’s recklessness threshold in the probation/suspended sentence context.
Virginia v. Black, 538 U.S. 343 (2003): Provides the canonical description of “true threats” as serious expressions of intent to commit unlawful violence, protecting victims from fear and disruption.
Elonis v. United States, 575 U.S. 723 (2015): Clarifies that the existence of a threat depends on what the statement objectively conveys to the recipient, not solely the author’s mental state—paired with Counterman’s added requirement that the speaker be at least reckless for the speech to lose First Amendment protection.
State v. Hanes, 171 N.H. 173 (2018): Cited for the use of threatening language as evidence of the speaker’s intent that words be understood as a threat.
S.D. v. N.B., 176 N.H. 44 (2023); State v. Oakes, 161 N.H. 270 (2010): Standards of review and waiver principles; Dunbar limits its constitutional analysis to federal law due to inadequate State constitutional briefing.
Vogel v. Vogel, 137 N.H. 321 (1993): Used to dispose of remaining arguments without discussion.

Legal Reasoning

1) Which definition of “contact” applies to stalking orders under RSA 633:3‑a?

The protection order at issue was issued under RSA 633:3‑a (stalking). RSA 633:3‑a, III‑a authorizes courts to grant “the same” types of relief available under RSA chapter 173‑B (domestic violence). RSA 173‑B:5, I(a)(3) allows orders limiting “contact,” and RSA 173‑B:1, IV defines “contact” as “any action to communicate with another either directly or indirectly, including, but not limited to, using any form of electronic communication, leaving items, or causing another to communicate in such fashion.”

The Court reasoned that, because RSA 633:3‑a, III‑a guarantees “the same” relief as RSA chapter 173‑B, the statutory definition of “contact” from RSA 173‑B:1, IV governs stalking protective orders as well. This harmonizes the two statutory schemes and follows Fisher’s cross-application principle. The Court thus read the no-contact term in the stalking order through RSA 173‑B’s definition.

2) What qualifies as “indirect” contact on social media?

The Court gave “indirect” its ordinary meaning—“not directly aimed at or attained; not immediately resulting from an action or cause”—using the Oxford English Dictionary. It then applied State v. Craig to the facts of public social media postings. Where a defendant:

Creates public posts on his profile that are expressly addressed to the victim (e.g., labeled “Notification,” citing the victim’s address, using near-identical aliases of the victim and her deceased husband), and
Intends to notify the victim, and
The posts reach the victim (here, other users alerted her and she read them),

those actions amount to “any action to communicate” with the victim “indirectly,” satisfying RSA 173‑B:1, IV. The Court explicitly found the defendant took more than the “mere creation of a message”—a threshold emphasized in Craig—by publicly targeting the victim with “notifications” and threats that ultimately reached her.

The Court also accepted Craig’s “street corner” analogy: posting messages publicly with the intent and effect of communicating to the victim is akin to stationing oneself where the victim will pass and shouting to her. Dunbar adds that, even without sending a letter directly alerting the victim (as in Craig), a post itself can be the operative “step to convey” when its content shows an intent to notify and it in fact reaches the victim.

3) Standard for revocation and suspended sentence imposition

Revocation of probation or imposition of a suspended sentence requires proof by a preponderance of the evidence that the defendant violated conditions such as “good behavior,” “good conduct,” or “obey all laws.” This is an independent, remedial proceeding. A jury’s acquittal on related criminal charges is not dispositive because the standards and purposes differ. In Dunbar, the same conduct that yielded criminal acquittals provided sufficient proof—on a preponderance standard—of violations warranting remedial sanctions.

4) First Amendment: True threats and recklessness

The Court limited its constitutional review to federal law and applied the “true threats” doctrine. True threats are serious expressions of intent to commit unlawful violence; they can be proscribed to protect targets from fear, disruption, and risk. After Counterman, the State must also establish at least recklessness—conscious disregard of a substantial risk that the statements would be understood as threats.

The content here was plainly threatening. The defendant wrote, for example: “your next death certificate will be real,” “I will hunt you down,” and “I will clean their clocks and won’t be responsible for my actions,” referencing the victim and her deceased husband in context. The Court found the threats were directed at both the victim and her husband (and, by extension, his family, which includes the victim). A police officer further testified that the defendant acknowledged it would be reasonable to say his posts put a person in fear and that he could see how they would do so. Viewed in the light most favorable to the State, this supported the finding of at least recklessness. Consequently, the posts fell outside First Amendment protection and could properly serve as the basis for probation and suspended-sentence consequences.

Impact and Implications

Doctrinal clarifications

Uniform definition of “contact” across protection-order regimes: By holding that RSA 173‑B:1, IV’s definition applies to RSA 633:3‑a orders, the Court ensures a consistent understanding of “contact” across domestic violence and stalking protective orders. Practitioners can now rely on the same statutory vocabulary, including its expressly broad coverage of electronic communications and indirect methods.
Public social media posts can be “indirect contact”: The decision confirms that defendants cannot evade no-contact orders by speaking “to the world” in ways aimed at protected persons. Where intent to notify is evidenced by the content and the communication reaches the victim, public posts satisfy “contact” without a direct message or tag.
Probation/suspended sentence proceedings may rely on protected-order violations proven by a preponderance: Even if related criminal charges end in acquittal, courts may impose remedial sanctions where the civil burden is met. This reinforces the independence of probation and suspended sentence enforcement.
Counterman’s recklessness standard applied in New Hampshire probation context: Dunbar shows how Counterman operates beyond criminal prosecutions: when conduct is speech-based, the true-threats carveout still requires proof of at least recklessness. Clear, violent language and admissions of foreseeability of fear will often suffice.

Practical effects

For protected persons and counsel: Evidence that a defendant publicly addressed “notifications” to the victim (or used identifying details like an address or near-identical aliases) and that the posts reached the victim can establish an order violation. Documenting how the victim learned of, accessed, and perceived the posts remains important.
For defendants: Speaking publicly about a protected person can constitute forbidden contact if the content shows an intent to communicate with that person and it reaches them. The absence of direct messaging, tagging, or delivery does not immunize the conduct.
For probation officers and prosecutors: Build records showing both the communicative aim (intent to notify) and the communication’s effect (that it reached the victim), and marshal evidence of recklessness when threats are alleged (including the text’s violent content and any admissions about foreseeability of fear).
For trial courts: Dunbar provides a clear analytical sequence: import RSA 173‑B’s definition of contact; determine whether the posts constitute indirect communication; assess preponderance sufficiency; then conduct a true-threats analysis, including the recklessness element, before relying on speech-based conduct for remedial sanctions.

Complex Concepts Simplified

“Contact” under RSA 173‑B:1, IV: Any action to communicate with a person, directly or indirectly, including electronic communications. “Indirect” means not aimed directly at the person but still designed to reach them—e.g., public posts addressed to them that are brought to their attention.
“Steps to convey” (from Craig): The law requires more than merely creating a message. There must be action to get the message to the protected person. In social media cases, public posts explicitly addressed to the victim and that in fact reach the victim can satisfy this requirement.
Preponderance of the evidence: More likely than not. This is the civil standard used to decide probation violations and suspended-sentence impositions, which are remedial and independent from criminal prosecutions.
True threats: Serious expressions of intent to commit unlawful violence. These are not protected by the First Amendment. After Counterman, the State must show the speaker was at least reckless—consciously disregarding a substantial risk that the words would be understood as threats.
Acquittal vs. probation violation: A criminal acquittal (beyond a reasonable doubt) does not bar findings of probation or suspended-sentence violations (preponderance) based on the same conduct. The latter proceedings enforce conditions rather than punish new crimes.

Conclusion

State v. Dunbar sharpens New Hampshire law at the intersection of protective orders, social media communication, and First Amendment doctrine. The Court establishes that the statutory definition of “contact” in RSA 173‑B:1, IV governs stalking protection orders under RSA 633:3‑a, III‑a, ensuring consistent relief across related protective-order regimes. It further confirms that “indirect contact” includes public social media posts expressly aimed at a protected person that, in fact, reach that person—even without direct messaging or other targeted delivery. Finally, the decision applies Counterman’s recklessness requirement to conclude that the defendant’s posts were unprotected true threats, permitting their use in probation and suspended-sentence enforcement.

The key takeaways are practical and doctrinal: public “notifications” to a protected person on social media can violate no-contact provisions; courts will assess both the intent to notify and whether the communication reached the victim; and, in speech-based violations, the State must still meet the true-threats recklessness standard. Dunbar thus provides a clear blueprint for litigants and courts confronting modern, online forms of harassment in the protective-order and supervision contexts.