The Volokh Conspiracy
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Ex-Wife Prosecuted for Violating Order That She "Shall Not Post Anything" About Ex-Husband
But the judge threw out the prosecution, on the ground that the order violated the First Amendment.
From Marin County (Cal.) Judge Roy O. Chernus's decision last week in People v. Velyvis:
[T]he Family Law court granted petitioner John Velyvis' application for a Family Code § 6218 Domestic Violence Protective Order (DVPO) against his former wife Melissanne Velyvis (Velyvis or defendant), finding that she "harassed" petitioner in violation of Family Code§ 6320(a) by posting a March 13, 2018 "blog" on WordPress.com, entitled: "NonFatal Strangulation Administered by Husband Dr., John H. Velyvis, from Victim to Survivor … The Untold Story 2018."
Among the prohibitions, the court ordered Velyvis to remove "all social media, blogs and internet" postings regarding petitioner and his children and barred her from making any new social media postings about them[:] …
"The intent of this restraining order is to curtail ongoing posting and communications made by Melissanne Velyvis involving John Velyvis. While recognizing an individual's freedom of expression, in connection with this dissolution and given the relationship qualifying for a domestic violence restraining order, the court has found the statements to have been made for the purpose of harassing Petitioner, damaging Petitioner's reputation, interfering with Petitioner's professional livelihood and damaging Petitioner's personal relationships. Accordingly:
"Melissanne Velyvis shall remove any postings on social media/biogs/internet regarding Petitioner or his children. This includes direct and indirect postings (Example referring to Petitioner as [']former husband/person with fiduciary duty['] and then using Melissanne Velyvis as identification of author).
"Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children.
"Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order. This includes, but is not limited to providing defamatory statements and documents to third parties about Petitioner. Melissanne Velyvis shall refrain from interjection into custody proceedings involving or related to John Velyvis, directly or indirectly, absent a court order.
"Melissanne Velyvis shall remove John Velyvis' likeness from her own social posting and remove any references indicating they are currently married …."
Six months later, the Marin County District Attorney filed a misdemeanor complaint against Velyvis .alleging one count of Penal Code§ 273.6; i.e., between July 19 to July 25, 2019 Velyvis "willfully, unlawfully, and knowingly" violated the DVPO "issued by Marin County Superior Court case number FL1603174."
The complaint did not describe the offending activities. Defendant states, without contradiction, that she is charged with violating the "no speech" prohibition….
The court in the criminal case began by noting that, under California law, a criminal defendant who is being prosecuted for violating a court order can raise the unconstitutionality of the order as a defense. California thus rejects the "collateral bar" rule (which is applied in federal court for federal orders), under which the target of an order has to object to it by appealing it, and generally can't just violate it and defend herself by arguing that the order is unconstitutional.
And the court then went on to conclude that the family court order was indeed unconstitutional (quite correctly, I think, for reasons given in this article):
Defendant asserts the broad language in the DVPO that directs: "Melissanne Velyvis shall not post anything on social media, biogs, and internet regarding Petitioner or his children" and "Melissanne Velyvis shall cease and desist from publishing any information concerning Petitioner and his children for the duration of this restraining order," constitutes an invalid prior restraint that impermissibly infringes on her free speech rights …. Defendant contends this overbroad language of the DVPO unlawfully prevents her from sharing her life experiences and feelings she attributes to her marriage to petitioner with her family, friends and other adults willing to read her comments and criticisms ….
The People respond by asserting that the restraining order may lawfully limit speech that exhibits a pattern of conduct the court deems "abusive." As proof of this pattern of abuse, the People rely on evidence presented at the hearing which showed, in addition to posting the blog, … defendant interjected herself into other family law matters involving her ex-husband: she made unsolicited comments to a custody evaluator during the current contested custody hearing involving petitioner and his first ex-wife; and defendant made disparaging remarks about petitioner during his current girlfriend's divorce proceedings to another man. The People also cite defendant's plans to file a complaint against petitioner with the California Medical Board….
In California, a court must find that "extraordinary circumstances" exist in order to restrain the defendant's right to share independently obtained information about another adult with other willing adults. 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 subject's professional reputation, does not rise to the level of a compelling or extraordinary circumstance.
In In re Marriage of Candiotti (1995) 34 Cal. App. 4th 718, the court struck down a protective order which permitted the ex-wife's (Debra) to share negative, independently obtained information about her ex-husband's new wife during contentious child custody proceedings, only to a specific set of adults and professionals associated with the court proceedings.
The court held that while the state has a compelling interest to restrain Debra from disparaging the new wife to the divorced couple's children or in the children's presence, "the order here went further, actually impinging on a parent's right to speak about another adult, outside the presence of the children. Such an order, under these circumstances, constitutes undue prior restraint of speech. It would prevent Debra from talking privately to her family, friends, coworkers, or perfect strangers about her dissatisfaction with her children's living situation."
In reaching this conclusion, the court in Candiotti recognized that the emotional discomfort or harm to reputation that disparaging comments may cause to the targeted adult do not constitute sufficiently compelling reasons to restrain them:
"Thus, while we agree that the court certainly has the power to prevent Debra from undermining Thomas's parental relationship by alienating the children from Donna, the order here was much more far-reaching, aimed at conduct that might cause others, outside the immediate family, to think ill of Donna. Such remarks by Debra may be rude or unkind. They may be motivated by hostility. To the extent they are libelous, they may be actionable. But they are too attenuated from conduct directly affecting the children to support a prior restraint on Debra's constitutional right to utter them."
Likewise, in Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, the trial court issued a preliminary injunction prohibiting plaintiff actress Gilbert's ex-husband Brinkman from disclosing any information regarding Gilbert's drug or alcohol use or sexual relations with other men that Brinkman acquired before, during or after their marriage, to anyone (except as necessary to the current court proceedings).
The court held the preliminary injunction was an invalid prior restraint on Brinkman's free speech rights and that Gilbert's claimed emotional distress and reputational damage are not sufficiently compelling reasons to justify the prohibition….
Under circumstances similar to our case, the trial court in Molinaro v. Molinaro, supra, 33 Cal. App. 5th 824 issued a DVPO prohibiting the husband Michael from posting anything about his pending divorce from Bertha on Facebook. Bertha complained that Michael had physically obstructed her from moving out of the couple's home and had physically intimidated her. At a contested hearing on her application for the DVPO, Bertha complained that Michael was posting everything about the divorce case on Facebook; he gave their children ages 18, 17 and 13 years old, copies of Bertha's pleadings; he posted on Facebook false statements that Bertha ran away with $250,000 from the couple's home equity line of credit and that she is crazy and has hallucinations; and she said his behavior was getting worse and she feared for her life and her children's safety.
The DVPO issued by the court included a stay-away order and ordered Michael not "'to post anything about the case on Facebook'" and "'not to discuss the case with the children.'"
On appeal from the DVPO, the appellate court held that the portion of the restraining order barring Michael from "posting anything about the case on Facebook" was unconstitutionally overbroad and impermissibly infringed on his free speech rights. It found that his "posts were not specifically directed to the minor children, but in many cases invited comments from Michael's adult friends and extended family," and that most of his posts "expressed his apparent despair about the divorce and his separation from the children." The court concluded, as did the court in Candiotti, that such comments were "'too attenuated from conduct directly affecting the children to support a prior restraint on [Michael's] constitutional right to utter them.'"
Our courts also recognize that a person has a constitutional right to repeat or comment upon public or private information, not previously found by a trial court to be defamatory. "'The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press….'" (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1158 [injunction may properly issue after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory]; accord. Evans, supra, 162 Cal.App.4th at p. 1169 ["[A] court may not constitutionally prevent a person from uttering a 'defamatory' statement before it has been determined at trial that the statement was defamatory."].) There is nothing on the face of the complaint, or in the Family Court judge's judicially noticed fmdings 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. Violation of this portion of the DVPO, therefore, is not an actionable offense.
I'm particularly pleased to see the use of Molinaro; when that case was first handed down, it was as a nonprecedential opinion, but two groups and I filed letters asking that the First Amendment analysis be published—on the grounds that it would set a precedent that would be useful to future courts—and the Court of Appeal agreed. I'm pleased to see that this case justifies the predictions we had made.
