Court Says First Amendment Protects Ex-Wife’s Right To Publicly Discuss Her Ex-Husband On Her Personal Blog – Techdirt

from the [gestures-at-Dr.-Velyvis]-anyone-can-start-a-blog-on-Wordpress dept

What appears to be a very combative divorce between two very combative people in Marin County, California has reached the point of criminal charges. Not justifiable criminal charges, but criminal charges all the same.

Melissanne Velyvis has been very publicly documenting everything about her divorce proceedings and her ex-husband's (Dr. John Velyvis) alleged domestic abuse. In an apparent attempt to silence her from discussing her personal life (which necessarily involved discussing his personal life), John approached a judge and secured a restraining order forbidding his ex-wife from publishing "disparaging comments." Here's Judge Beverly Wood making her feelings clear about Melissanne's divorce-focused blogging:

I really came into this hearing not wanting to issue this order and really hoping that I wouldnt have to issue this order, but it has to stop, Wood said, according to a transcript of the proceeding. It really has to stop. And I need to tell you that if you dont stop this, this can become a criminal matter. I dont think you want to go there.

The order was expansive. It not only banned future "disparaging" posts but ordered the removal of everything fitting that description Melissanne had posted in the past.

I am making an order that you remove any posting on social media on Internet regarding Dr. John Velyvis and that you not post anything on social media regarding Dr. Velyvis or his children directly or indirectly. [...] I am going to order that you prevent disseminating any information about Dr. Velyvis to any parties absent a court order or subpoena.

Melissanne did not stop posting. Last December, Marin County prosecutors filed criminal charges over the violation of the restraining order. The prosecutor argued the prior restraint was Constitutional because the alleged harassment targeted by the order was unlawful.

Melissanne challenged the order. Seven months after being criminally charged for discussing her divorce and her ex-husband online, the restraining order has been dismantled by another county judge.

[Judge Roy] Chernus ruled on the petition on July 27. He agreed that the prior court order was an unconstitutional block on free speech, and said the criminal charge could not stand.

In California, a court must find that extraordinary circumstances exist in order to restrain the defendants right to share independently obtained information about another adult with other willing adults, Chernus wrote. The fact the public sharing of these comments might be humiliating to the targeted adult, or cause emotional distress or even cause harm to the subjects professional reputation, does not rise to the level of a compelling or extraordinary circumstance.

The ruling [PDF] (thanks, Volokh Conspiracy!) makes it clear the order is only unconstitutional as far as it applies to Melissanne's online postings. Other elements regarding "unwanted contact" still apply.

The court cites a handful of other divorce proceedings in which similar restraining orders were found unconstitutional. Just because one of the parties may feel harassed by the other party's discussion of ongoing acrimony doesn't make it unlawful for the party to engage in this speech. Unless the speech falls into narrow categories (like defamation or true threats), the speech is Constitutionally protected.

There is nothing on the face of the complaint, or in the Family Court judge's judicially-noticed findings of fact to indicate any of defendant's communications were previously found to be defamatory.

As stated in the DVPO, the Family Law judge found that defendant's statements about Dr. Velyvis were intentionally harassing, damaged his reputation and interfered with his personal relationships.

Based on the authorities discussed above, these reasons are insufficient to justify such a broad prohibition. The court finds that the portion of the DVPO restraining defendant from posting on the internet or communicating any information about defendant's ex-husband or his children is impermissibly overbroad and constitutes an invalid prior restraint under the federal and California constitutions.

Since the order is invalid, so is the criminal charge.

Violation of this portion of the DVPO, therefore, is not an actionable offense.

The protective order can still be violated but it can no longer be violated simply by posting content Dr. John Velyvis feels is disparaging or personally harmful. The First Amendment -- and California's own Constitution -- protects the right of divorce participants to make each other as miserable as possible. Which is as it should be, since divorce is just as much an American tradition as free speech itself.

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Filed Under: 1st amendment, california, divorce, free speech, john velyvis, marin, melissanne velyvis

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Court Says First Amendment Protects Ex-Wife's Right To Publicly Discuss Her Ex-Husband On Her Personal Blog - Techdirt