Divorcing parents promise not to write books 'dealing with' (moderately famous) autistic son

|The Volokh Conspiracy |

When should such promises be enforced via an injunction—or when should they lead at least to an injunction against further promotion of a book once it's already published? A very interesting case just decided on Thursday, Caren EE. v. Alan EE. (N.Y. App. Div. Jan. 22, 2015), deals with the second half of this question. First, the background:

Plaintiff (hereinafter the wife) and defendant (hereinafter the husband) are the parents of an adult son who is diagnosed with autism and has received media attention for his achievements as a visual artist. When the parties divorced in 2002, they entered into an opting-out agreement and an oral stipulation, and consented to the entry of a judgment of divorce that incorporated several agreed-upon provisions pertaining to mutual management of the son's affairs. In particular, the parties agreed in paragraph 36 that "[a]ny books or movies dealing with [the son] or his artwork" were to be contracted by the parties' mutual agreement.

In 2012, the wife published a book about a certain medical disorder that, in her opinion, is present in the son and is often present but undiagnosed in other autistic children. The book is based in part on the wife's research, and in part on her personal experiences as the son's mother. It includes multiple references to the son, who is identified by a pseudonym. The wife did not obtain the husband's consent before contracting for the book's publication.

The husband sued, and the court agreed that the book was covered by the contract (paragraph breaks added):

The parties' agreement does not specifically define the phrase "deal[ ] with." Dictionaries define this phrase to mean "to have to do: concern oneself" (Webster's Third New International Dictionary of the English Language 581 [1976]), to "take or have as a subject; discuss" (The New Oxford American Dictionary 435 [2d ed 2005]), "[t]o be occupied or concerned" (The American Heritage Dictionary of the English Language 466 [5th ed 2011]), and "to concern oneself or itself" (Merriam-Webster Online Dictionary, http://www.merriam-webster. com/dictionary/deal [accessed Dec. 1, 2014]). Notably, none of these definitions includes qualifying words such as "primarily" or "solely" that would narrow the meaning of the phrase as the wife contends, nor does any such limiting language appear in the disputed provision.

The parties could have included such language if they had wished to narrow the scope of their agreement to books that dealt mainly or exclusively with the son, but they did not do so, and a court may not create a new contract in the guise of interpretation by adding terms to the language chosen by the parties. Accordingly, the book "deal[s] with" the son if it can be said to have to do with the son, take him as a subject, discuss him or concern itself with him.

The book makes dozens of references to the son, albeit under a pseudonym, and includes biographical information, specific accounts of his medical diagnoses and treatments, and many detailed anecdotes describing his experiences and behaviors. The first of the book's nine chapters is exclusively about the son, describing his birth, the progression of his symptoms, his diagnosis, and the process by which the wife eventually formed the opinion that he also suffers from the undiagnosed disorder.

Although the book's remaining eight chapters address more general subjects such as medical information and the experiences of other families, they also include additional references to the son, with details about his behavior, diagnoses and treatment, as well as direct quotations from him. Only three of the book's nine chapters make no reference to the son. He is also discussed in the book's acknowledgments, introduction and conclusion. Thus, we find that the book concerns the son and takes him as a subject, and that it "deal[s] with" the son within the meaning of the parties' agreement. Therefore, the wife breached the agreement as a matter of law by contracting for the book's publication without obtaining the husband's consent.

The disputed provision directs that the net proceeds from any book "dealing with" the son are to be deposited in a joint account established by the parties for the son's benefit, and that the disposition of the funds is to be determined by mutual agreement or, if necessary, "by a court after the appointment of a Guardian ad Litem." A separate paragraph further provides that where a breach of the divorce judgment has been established to the satisfaction of a court, the party who was obliged to take legal action to cure the breach is entitled to reasonable counsel fees and expenses. The husband has demonstrated that he is entitled to relief under both provisions.

Now there's no First Amendment problem with enforcing such speech-restrictive contracts, see Cohen v. Cowles Media (1991), and probably not even with enforcing them through an injunction, see Perricone v. Perricone (Conn. 2009). But courts nonetheless remain hesitant to issue injunctions restricting speech, and here the court declined to issue it. Here's part of the analysis (paragraph breaks added):

In our view, the very personal information contained in the book—such as highly specific details of the son's medical condition and treatment and episodes of difficult behavior—might reasonably be anticipated to cause distress to any young adult who learned that it had been made public without his knowledge or consent, and perhaps more so in the circumstances presented here. Moreover, although the book uses a pseudonym for the son, his identity can readily be ascertained; the wife published the book under her own name, and the text includes many details that will easily identify the son to himself or those who know him.

The son—who is presently a college student—is apparently capable of reading, using the Internet, and following media reports. Thus, there is a clear and undeniable risk that he will someday learn about the book, whether or not the wife continues to promote it.

The parties agree that the son may be harmed by discovering the book's existence and should be protected from learning about it. Both parties have expressed concern that the other's activities may lead the son to discover the book. In fact, Supreme Court directed them not to inform the son about the book and warned that to do so would be "a heinous act," and the wife responded that she was "thankful" that the court had made this direction. Nevertheless, they disagree as to whether the emotional harm that he may experience will be so severe as to constitute irreparable injury justifying a permanent injunction….

[But] we need not determine whether the threatened harm constitutes irreparable injury as a matter of law [generally a requirement for injunction relief -EV], as we are unpersuaded that the proposed remedy will be sufficiently effective to prevent it.

The wife's book was first published in 2012, and has been available for purchase online and in bookstores ever since. Notably, despite the wife's active promotion of the book during this time, it does not appear that the son has yet discovered its existence. It is now the ongoing existence and public availability of the book that poses the most substantial risk that the son may discover the book in the future, and—as the husband has never sought to withdraw the book from circulation—in simple colloquial terms, that horse has left the barn. Put another way, given the book's longstanding availability and the publicity it has already received, any future restraint on additional promotional activities in which the wife may still be engaged will offer only minimal protection to the son.

Moreover, the relief sought constitutes, in effect, a prior restraint on the wife's freedom of speech; although she agreed that she would not contract for the publication of a book that dealt with the son without the husband's consent, she did not agree that she would never express her views about the son in other contexts. To enjoin her from doing so under the circumstances presented here poses significant constitutional concerns that are not justified by the limited and imperfect protection of the son's interests that may result (compare Porco v Lifetime Entertainment Servs., LLC, 116 AD3d 1264, 1265-1266 [2014]). Accordingly, despite our determination that legal remedies for the wife's breach of the agreement are appropriate and necessary, we find no abuse of discretion in Supreme Court's refusal to grant a permanent injunction, and will not disturb it.

UPDATE: Opening paragraph revised to make clear what was really at stake here; sorry for the initial confusion.