"All the Craziness … Needs to Stop Totally"

The heading of the post comes from a 2019 Wisconsin restraining order case. The judge  there ordered a woman "to cease posting any information about your parents on social media referencing indirectly or directly reference either one of them"—not just defamatory speech, or threatening speech, or otherwise constitutionally protected speech, but any information about the woman's parents. And the court added, "Court informs the respondent that all the craziness described in these petitions needs to stop totally."

That injunction, I think, is unconstitutional; there's no "craziness" exception to the First Amendment. Nonetheless, I think the reasoning described above is at the heart of quite a few decisions.

Thus, for instance, Monday's Ohio Court of Appeals decision in Kennedy v. Kennedy (Judge John Eklund, joined by Judges Eugene Lucci and Matt Lynch) deals with a trial court order that prohibited the parties from

posting on the Internet and all social media platforms, including, but not limited to, Instagram, any messages, photographs, images, and/or content that fall within the following subject matters:

- Photographs of the parties' minor child …;

- Comments about the parties' minor child;

- Alleged conspiracies or abuse involving the parties' minor child and/or those affiliated with the minor child …;

- References to the present litigation and/or prior litigation in Colorado … involving the parties;

- References to other individuals associated with the present litigation and/or prior domestic relations litigation in Colorado ….

[The parties shall] each take the necessary steps within seven (7) days of the filing of this Order to remove any and all previous content … which contain messages, commentary, photographs, images or other content referring to the above-referenced subject matters.

The order had apparently been issued in response to the father's request (though that request may have been limited to information related to the child); it bound both parties, but it seems to me to likely have been targeted at the mother. In any case, though, it strikes me as unconstitutionally overbroad: Even if there's some compelling interest in keeping references to the minor out of the public eye (and I'm skeptical about that), the last two items strike me as very hard to defend.

The appellate court didn't disturb the underlying order, because the mother, who was representing herself, didn't challenge it on appeal. And the mother committed various procedural errors that led to the rejection of the arguments she did make.

But some of the appellate court's description of the mother's behavior strikes me as pretty telling as well:

The [trial] court noted that both [mother] and [father] had a history of mental health issues. The court appointed Dr. Kopit to assist in determining the child's best interests. Dr. Kopit reported that [mother] exhibited signs of delusional thinking. For example, [mother] claimed that the minor child's biological father was a member of the heavy metal band, Avenged Sevenfold. She denied that [father] was the child's biological father, despite two conclusive tests proving that he was. Further, [mother] had made unfounded allegations that Dr. Kopit had sexually assaulted her during interview sessions. The court also said that [mother]'s testimony was "erratic, puzzling, and at times illogical. Mother rambled incessantly and on numerous occasions lacked focus." …

The magistrate's decision described [mother]'s post [that was found to violate the order], which contained a link to a Google Document, saying it

alleged conspiracies involving [father's] family (sister and parents), the Royal Family (King Charles, Duke of Windsor, Prince William and his Wife, and their children, [father's] family (her father, …), and several other individuals. This Google Document also made numerous references to the rape of both [[mother]] and the parties' minor child … by or at the behest of [[father]], other family members or other third parties.

… [E]ach of [mother]'s assignments of error [on appeal] are disjointed, difficult to follow, and express conspiratorial, rather than legal or factual, arguments. [mother] has signed her brief as an "INTERNATIONAL SUPERAGENT" and has identified herself as an Interpol officer. Her assignments of error argue the case against her is an "illegal Sorensen dynamic" amounting to torture in violation of 18 U.S.C. § 2340-2340A. She claims that the trial court's restraining order undermines [mother]'s role in international security and have "objectively undermined the stability of the global, sociopolitical landscape, for the sake of the aggrandizement of allegedly malfeasant actors."

Hard to win a case under circumstances such as this, whatever arguments there may be about the First Amendment in the abstract.

Comments

[Martinned2]

The appellate court didn't disturb the underlying order, because the mother, who was representing herself, didn't challenge it on appeal.

That's always the sort of thing that troubles me. It's one thing not to raise a constitutional issue sua sponte if it's a 50/50 call (although even then you can ask the parties to brief it), but an obviously unconstitutional act should be quashed/struck down/etc. regardless of whether the relevant party raises it.

[not guilty]

In the Ohio case, the appeal was from a judgment of civil contempt for violation of a restraining order. The appellate court noted (p. 9, fn.1) that the mother did not appeal the trial court’s imposition of the restraining order.

The constitutional invalidity of an injunction or restraining order is not a defense to contempt for violation of the order. See Walker v. City of Birmingham, 388 U.S. 307 (1967). That having been said, too many family court judges routinely disregard the litigants' First Amendment and Due Process rights.

[Martinned2]

The constitutional invalidity of an injunction or restraining order is not a defense to contempt for violation of the order.

For the record, I have no objection to that rule.

[Soronel Haetir]

Poor kid.

[ReaderY]

I think that in dealing with a recalcitrant litigant who repeatedly defies orders, a judge can have more leeway to do something more sweeping. But not initially. Even if the judge is correct in thinking a litigant crazy.

That is, I disagree with the idea that the Constitution is an absolute bar to orders of this type. I don’t think it prevents a judge from issuing them through contempt powers or similar. But there has to be evidence lesser efforts have been tried that haven’t worked first.