The Volokh Conspiracy
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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." Stark v. Stark involved one such order.
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, ordering that she take down the post and that she "shall be further enjoined from making any other public allegations against the Petitioner, Joe Stark, on social media (on any platform) or to his employer which may affect Petitioner's reputation or employment." 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 that the appeal of the contempt citation was moot; and for complicated procedural reasons, held that the appeal of the underlying injunction was procedurally improper. (For our amicus brief supporting Ms. Stark's request to have the Tennessee Supreme Court review the case, a request the court denied, see here.) And now Ms. Stark has been convicted for violating the injunction by talking to the Memphis Commercial Appeal about the case:
[10.] On June 27, 2019, the Commercial Appeal published an article authored by Philip Jackson entitled "Former prosecutor: Memphis police 'destroyed' my career after domestic assault involving officer"….
[13.] Wife admitted to speaking to the reporter on the phone and meeting with him for several hours discussing and verifying the allegations set forth in the Federal lawsuit and declaratory judgment actions.
[14.] She discussed and verified a number of allegations in which she was quoted throughout the article explaining how the allegations related to destroying her career.
[15.] Wife was aware of the ongoing injunction prohibiting her from making any other public allegations against the Petitioner, Joe Stark, on social media ( on any platform) or to his employer which may affect Petitioner's reputation or employment.
[16.] Wife argues that the injunction was not a gag order and she did not write, print or publish the article.
[17.] Wife argues that the injunction did not prevent her from filing the Federal lawsuit and that Mr Jackson was going to write his article based on the filings alone.
[18.] Wife denies giving Mr. Jackson the Facebook post asserting that he would have gotten it from the declaratory judgment action filed in Federal Court as it was an attached exhibit.
[19.] Wife admits that on or about May 9, 2019 she reposted the Facebook post, changing the language from "I speak now as a recent victim of domestic violence at the hands of a Memphis Police Officer, .. "to "From personal experience."
[20.] The new post would have reached the same people who observed the prior post and would have had the same contextual frame of reference that Wife was referring to her "personal experience" with Husband and the Memphis Police Department.
[21.] The impact of Wife's actions and her disparaging Facebook post has been made exponentially worse in that the disparaging comments have been published worldwide and will have an even greater negative impact on Husband.
[22.] Since the allegations in the Commercial Appeal article are posted on the internet the effects are irreversible and not subject to civil contempt….
[2.] Ms Stark (Fleming) knew or should have known the obvious potential and intent that the publication of the disparaging comments was going to be received by Mr Stark's employer, Memphis Police Department.
[3.] The fact that Ms Stark (Fleming) was able to utilize the media does [presumably a "not" has been omitted here -EV] insulate her from liability for her participation in the violation of the Mandatory Injunction Order.
The court therefore found Stark guilty of criminal contempt, based on her communications with the newspaper (as well as the reposted Facebook post), and sentenced her to perform 160 hours of community service ("working with the Family Safety Center (or comparable agency) representing victims of abuse"), as well as to pay $3500 for the ex-husband's attorney fees.
The case offers an especially troubling illustration, it seems to me, of the unconstitutionality of the Tennessee statute and the orders issued under it—orders that effectively criminalize a certain kind of speech, without any limitations to threats or libel or otherwise categories of unprotected speech. Unfortunately, Ms. Stark might be unable to raise that constitutional objection at this point, since under the "collateral bar" rule, "[a]n individual must obey an injunction until it has been modified, set aside or otherwise declared to be illegal," so that even an "unconstitutionally overbroad" order must "be obeyed."
But I think she can argue that the court went even beyond the text of the injunction, at least as to the communication with the newspaper: That communication was not "on social media or to his employer"—even though Sergeant Stark's employers would likely have seen the newspaper article, the injunction does not extend to banning speech "that may be seen by his employer which may affect [his] reputation or employment."
I hope that Ms. Stark appeals, and that Tennessee courts start to rein these speech restrictions.