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Free Speech

Ban on "Mentioning Child/Parental Alienation" and "Anything About" Ex, "Including But Not Limited to" …

"that which may be immediately or remotely interpreted as demeaning or belittling to him" struck down as unconstitutionally vague.


In Wednesday's Sonya J. v. Robert M., the California Court of Appeal (in an opinion by Justice Ioana Petrou, joined by Justices Allison Tucher and Victor Rodríguez) largely upheld a restraining order that barred Sonya J. from harassing her ex-husband and her adult children (see the opinion for a long and detailed discussion of Sonya J.'s behavior); but it vacated (quite correctly, I think) a ban on various social media posts, holding that it was unconstitutionally vague:

A restraining order is unconstitutionally vague when the order does not clearly define the conduct prohibited…. As noted, item 23 [of the DVRO] states: "[Sonya] shall immediately take down from the Internet and social media any and all photos of the protected parties; and cease and desist from posting any photos, descriptions, references, or allusions to any of them for the duration of the protective order. [Sonya] will also cease and desist from posting anything directly or indirectly mentioning child/parental alienation as well as anything about Robert, including but not limited to that which may be immediately or remotely interpreted as demeaning or belittling to him."

Under this language, Sonya risks violating the DVRO by posting anything "directly or indirectly mentioning child/parental alienation," but what is meant by "child/parental alienation" is not explained, and not reasonably understood. Nor is it clear whether the restriction enjoins Sonya from writing about this topic as a general matter (which may raise overbreadth concerns) or specifically with respect to her children.

The scope of the restrictions with respect to social media posts involving Robert and the children is also unclear. Specifically, it is not clear whether Sonya is enjoined from posting about them generally (which again may raise overbreadth concerns) or whether her posts about them are limited to those that would be demeaning, belittling, or otherwise abusive under the Domestic Violence Prevention Act. Because a reasonable person must necessarily guess at the meaning of item 23, it cannot stand as written.

{The clarity of item 23 is further undermined by the two other variations of the social media restrictions which were stated orally and memorialized in the statement of decision. For example, in those rulings, prohibited posts about the children appear to be limited to anything related to the children "to refuse/resist childhood." Likewise, in those rulings, restricted posts about Robert appear to be limited to those that belittle or demean him, which appears appropriately narrower than the broad formulation in item 23.}

Having concluded that item 23 is unreasonably vague, we do not reach Sonya's other arguments, including whether the restriction is an unconstitutional prior restraint, because the trial court will presumably revisit the scope of the restriction on remand….