The Volokh Conspiracy
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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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