Free Speech

Court Ordered Police Officer's Divorcing Wife to Take Down Posts Alleging Abuse and a Coverup

|The Volokh Conspiracy |

As I've noted in an earlier post, Tennessee law generally provides that courts in divorce cases must "restrain[] both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to or in the presence of any children of the parties or to either party's employer." Here's how it played out in one case, Stark v. Stark.

Pamela Stark had been a prosecutor who was married to Joe Stark, a Memphis Police Department sergeant. She petitioned for divorce, "alleg[ing] that she was injured during a physical altercation with Husband days before the complaint for divorce was filed." She also sent an e-mail to the Mayor about the matter:

Wife's four-page email to the mayor likewise claimed that she was a victim of domestic violence at the hands of Husband and a victim of misconduct by the Memphis Police Department [in the handling of the investigation -EV]. She identified her husband by name and rank and described her version of the physical altercation between them and the events that followed. Wife asked the mayor to "look into this before it goes further."

And she posted a Facebook post:

The husband asked the court to order the post removed, arguing "that such dissemination of these allegations could cause immediate irreparable harm to Husband's reputation and employment," in part because "he and Wife have many mutual friends on the social media site because Wife worked as a prosecutor." The judge agreed:

THE COURT: Counsel [referring to Pamela Stark], here's the problem. You're under a mutual restraining order. You are. Notwithstanding that any other—when you filed your Complaint, the restraining order was put into place. And that included not to make any disparaging comments to an employer. The mayor is his employer. Bottom line.

You can sit there and argue that you have a freedom of speech, and but the moment you sat there and said in this letter referencing your husband, that changed it. That was about him. It wasn't about a general concern about police corruption.

The fact that, you know, another police officer was arrested yesterday or last week or last month, if you want to sit there and rant about that, have at it. But if you're going to make references to your husband, about your husband, about your situation, then that is off limits. Bottom line.

That post shall be removed today, and a mandatory injunction will go into effect that there will be no communication with employers…. Whatever allegations have been made, we'll deal with that in due course. But at this point involving making any further allegations in social media is completely inappropriate and is being enjoined.

The wife at first refused to take down the post, but was jailed (for four hours) until she did. Clearly unconstitutional, I think.

Unfortunately, the Tennessee Court of Appeals held (just last Friday) that Pamela Stark's appeal didn't use the proper procedural route for challenging the preliminary injunction and therefore declined to reach the First Amendment question. But if you ever find yourself challenging a similar Tennessee injunction in the future—or the statute that indirectly seemed to lead to it—please let me know.

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  1. If what she says is true, why is she still a “staunch supporter of not only MPD, but of law enforcement as a whole?”

    Would she acknowledge that problems with law enforcement may have affected many of the cases she prosecuted, or is this just a problem when it comes to her case.

    That said, wow: “You can sit there and argue that you have a freedom of speech, and but the moment you sat there and said in this letter referencing your husband, that changed it. That was about him. It wasn’t about a general concern about police corruption.”

    God the judge is dense.

    1. But is the allegation true?

      1. I don’t know — and the judge doesn’t claim to know, either. His order requires her to take down the Facebook post without regard for whether it’s true, indeed without any hearing on the question.

        1. If it true then the guilty party needs to be dealt with. If it’s posturing for a divorce then the guilty party needs to be punished.

          Without an investigation it seems unreasonable.

          As a former DA in the case the wife seems to be in a position to put pressure on the police unlike most other women in similar positions.

          As a lawyer she should also have been in a position to bring a motion to the court. Perhaps a protective order or whatever they call them in Tennessee.

        2. Ignorance of the law is not a reason to violate said law. Not to mention that she is a lawyer and officer of the court so there is no excuse for her violation.

          1. FlameCCT: I’m not sure I understand your argument — the law (and the initial court order issued under the law) doesn’t ban Facebook posts. The judge issued that as a follow-up order of his own.

  2. the lanisters send their regards.

    Section 2. That government being instituted for the common benefit, the doctrine of
    nonresistance against arbitrary power and oppression is absurd, slavish, and destructive
    of the good and happiness of mankind.
    3… that no human authority can, in any case whatever, control or
    interfere with the rights of conscience;
    Section 19. That the printing press shall be free to every person to examine the
    proceedings of the Legislature; or of any branch or officer of the government, and no law
    shall ever be made to restrain the right thereof. The free communication of thoughts and
    opinions, is one of the invaluable rights of man and every citizen may freely speak, write,
    and print on any subject, being responsible for the abuse of that liberty. But in
    prosecutions for the publication of papers investigating the official conduct of officers, or
    men in public capacity, the truth thereof may be given in evidence; and in all indictments
    for libel, the jury shall have a right to determine the law and the facts, under the direction
    of the court, as in other criminal cases.
    Section 23. That the citizens have a right, in a peaceable manner, to assemble
    together for their common good, to instruct their representatives, and to apply to those
    invested with the powers of government for redress of grievances, or other proper
    purposes, by address of remonstrance.

  3. I don’t know proper procedures, but why write to the mayor? Why not file an actual complaint with the police? (Not that I expect it would do much good.) I mean …. what does she expect the mayor to do, fire the cop? Force other cops to investigate her domestic abuse complaint, again, more thoroughly? Even as grandstanding publicity, I don’t understand, unless she also sent copies to newspapers and TV stations. The mayor could easily have just thrown her letter away, right? Or is the letter part of some official legal procedure as a next step to suing the police department or city?

  4. It sounds like only the contempt order was appealable at this point. But the underlying order could become appealable, perhaps at the end of the case, if appropriate steps are taken to preserve her objection.

    It sounds like she may need a Tennessee procedure expert, not just a first amendment expert.

    1. I’m pretty certain that a preliminary injunction restricting speech can be appealed immediately, just through a different process. Indeed, a state must provide such a process; see National Socialist Party of Am. v. Skokie (1977): “If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review, see Nebraska Press Assn. v. Stuart, 423 U. S. 1319, 1327 (1975) (BLACKMUN, J., in chambers). Absent such review, the State must instead allow a stay.”

      1. It sound like the wife did indeed appeal the restraining order, didn’t raise the argument involving skokie, and got rejected for lack of a final judgement:

        “See Garrison, reviewing the contempt issues presented on appeal separately as distinct from the remainder of the appeal and dismissing the remainder of the appeal for lack of a final judgment.”

        “Wife argues that she can also challenge the restraining order, noting that one of the essential elements of a civil contempt finding is that the court order alleged to have been violated must have been a “lawful” order. “

        1. So I think there are procedures under the Tennessee Rules of Appellate Procedure for interlocutory appeals before final judgment, whether with permission of the trial court (Rule 9) or without (Rule 10); but it appears that Ms. Stark’s appeal didn’t take advantage of those two routes.

  5. The law is a reasonable one, it advances a significant state interest in calm divorce proceedings thru a mild limitation.

    She is a lawyer so its not like she is some sort of naive layperson who just didn’t realize what she was doing. She intended to disparage her husband with his employer. If she rightfully did not trust the police, she could have filed a formal complaint the prosecutor’s office [where she used to work even] which would be privileged.

    1. Why just for divorces? Why not for all court proceedings?

    2. ” it advances a significant state interest in calm divorce proceedings thru a mild limitation.”

      The state has an interest in “calm divorces” that can overcome heightened scrutiny? And why “significant state interest”? The proper standard is strict scrutiny, no?

      1. No.

        Strict scrutiny is still judicial activism.

        1. Agreed, but technically that’s the analysis that judges are supposed to apply. But it’s true that when judges find a compelling interest, they’re really just saying that they like the law.

      2. “why “significant state interest””

        Because I couldn’t recall “compelling”.

        This should survive strict scrutiny is my point. Divorces are often quite hostile in a way regular civil proceedings are not and they often involve children. People have no need to contact the other spouses employer so its a minor [narrow] restriction.

        1. “This should survive strict scrutiny is my point.”

          “Compelling” in strict scrutiny analysis usually means “kinda might be beneficial,” but there is no tailoring, no requirement that children be harmed, no requirement that the speech be false, no consideration of the employer’s interest in receiving accurate information, etc.

          And of course the interest at stake here is not “compelling” in any reasonable sense of the word. The world won’t end if people are allowed to report police abuse by their spouse to the Mayor.

        2. Bob from Ohio: I don’t think the freedom of speech is limited to speech that people have the “need” to make; and, as TwelveInchPianist points out in his reply below, the law is in any event not narrowly tailored to any possible compelling government interest. (Among other things, whatever you might say about protecting children, this is one of the many divorces that doesn’t involve children.)

          But beyond that, this post is about the follow-up court order that required her to take down the Facebook post. Doesn’t that help show how seemingly “minor [narrow] restriction[s],” such as bans on “contact[ing] the other spouse’s employer,” can quickly lead to much more serious restrictions — such as restrictions on Stark’s ability to talk to her friends on Facebook about what she sees as perceived misbehavior by the police department in investigating her allegations of abuse?

    3. It may be reasonable, but that doesn’t make it Constitutional.

      The Constitution explicitly grants the right to petition the government. Any act of the government that infringes that right is subject to strict scrutiny, which goes much farther than “reasonable”.

    4. The law, as it applies to speech, is not reasonable; to the contrary, its nanny-state non-sense, on stilts.

      First, the state interest segment of most judicial balancing-tests is totalitarian clap-trap usually advanced by those who are (1) in the employ of the state or (2) otherwise dependent upon the state. The free thinkers, the innovators, and those who make and produce in the non-crony private sector tend not to view the state has having an interest in their private affairs. That the state has an interest in what divorcing parents might express about each other is just tautological turd. No, the state has no such interest.

      Second, divorce proceedings are much more likely to be calm when the state is not a party to the same.

      Third, when viewed through the prism of traditional preliminary injunction principles, the law fails. Applied to the present matter, does the cop have a reasonable likelihood of prevailing on the merits, i.e., his wife’s statements are defamatory? Would the cop be able to establish that he would suffer irreparable harm without the injunction? Would the cop be able to demonstrate that money damages would not suffice should, in the unlikely event, his wife’s statements were false and wholly without merit and uttered without privilege? Would the tax feeder be able to demonstrate that the benefit of enjoining the wife’s statements outweigh the negative effects associated with chilling speech?

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