Court Ordered Ex-Wife to Stop Publicly Disclosing Her Ex-Husband's Alleged Past Misdeed

But the Arizona Court of Appeals just reversed, concluding that speech about a person generally isn't "harassment," even if unwanted speech directed to the person may be.

From an Arizona Court of Appeals decision Tuesday in Wineberg v. Buonsante, written by Judge Lacey Stover Gard and joined by Chief Judge Christopher Staring and Peter Eckerstrom:

In January 2024, Wineberg filed a petition for an order of protection under § 13-3602. He alleged that [his ex-wife] Buonsante had engaged in the following acts:

She has been stalking my community. She has delivered my personal information to people in my community even though being told she has no reason to be around my home. She has been seen on my porch looking through my front window. [S]he has blasted me all over social media. [S]he has harassed my friends and family. This has been going on since June 2023.

The superior court conducted an ex parte hearing, at which Wineberg explained that Buonsante had shown his neighbors a published article containing negative information about him. Wineberg stated that he had not had any communication with Buonsante, but that she had told others that she was "trying to destroy" him. He accused her of seeking to prove that he was a "predator of women."

The superior court determined that Buonsante had "committed the offense of harassment" and granted the order of protection. Based on Wineberg's allegation that Buonsante had disparaged him in videos on a social-media platform, the court included in the protective order a directive that Buonsante "shall not post messages about [Wineberg] on the internet or on social media." It also ordered Buonsante not to possess any firearms for the order's duration and to surrender her existing firearms to law enforcement.

At a later hearing, "Buonsante offered to leave the order in place in exchange for removing the restriction on her right to possess firearms," but "Wineberg maintained that the firearms restriction was necessary because Buonsante posed a credible threat of violence to him." More allegations came out at the hearing:

Wineberg thereafter testified that Buonsante had circulated a disparaging note about him within his retirement community and had sent similar letters to his friends and family members. He produced text messages between his current girlfriend and Buonsante, in which Buonsante indicated that she had visited Wineberg's residence and had seen his couches through the open blinds. Based on these messages, Wineberg deduced that Buonsante had trespassed on his front porch; he explained that his home is elevated above street-level, and Buonsante could not have seen through the windows from the street.

Wineberg further testified that Buonsante had posted videos on social media exposing his purported misdeeds. He also accused her of circulating to his friends, family, and employer a published magazine article discussing alleged acts of wrongdoing in his past. Wineberg admitted, however, that he had never personally seen Buonsante at his home, and that she was unable to contact him because he had blocked her.

Buonsante also testified, and she provided a copy of the article Wineberg had referenced. That article, for which Buonsante and others had been interviewed, was published in InMaricopa magazine and accused Wineberg of having committed stolen valor and other deceitful acts. Buonsante admitted that she had shared the article with others. [The article appears to be this one. -EV]

Buonsante further claimed that she had learned about various troubling aspects of Wineberg's past after she married him, and that he had attempted during the marriage to defraud her in various ways. She said she had reached out to his former wives and romantic partners to gather more information about him. She claimed that she had intended only to warn others of Wineberg's alleged wrongdoing. She denied having trespassed on Wineberg's property; she admitted having driven past his home, but maintained she could see into the windows from the street.

The trial court concluded "that Buonsante's disclosure of negative information about Wineberg to third parties amounted to harassment, an act of domestic violence":

The Court believes based on the testimony [Wineberg] has proven by a preponderance of the evidence that an act of domestic violence … has occurred. The Court believes [Buonsante] has reached out to friends and family member[s] of [Wineberg] to malign … [Wineberg] and to provide information about [Wineberg]. Even if true that would be disturbing to [Wineberg] if he found out that those people were contacted.

The court does not believe it was [Buonsante's] obligation to notify or interfere with [Wineberg's] life, to notify his friends and family of information that they could discover on their own or through public sources. The Court believes that by providing information and links to other videos and information in the public sphere that still was harassment despite the fact that it was viewable publicly. The Court believes [Buonsante] did it merely to harass or disturb [Wineberg] and it was done solely for that purpose.

The trial court therefore "continued the order of protection, amending it to reflect that Buonsante was prohibited from possessing firearms under federal law," but the appellate court reversed.

The appellate court concluded that the speech didn't qualify as "harassment" under Arizona law, which defines the offense thus:

A person commits harassment if the person knowingly and repeatedly commits an act or acts that harass another person or the person knowingly commits any one of the following acts in a manner that harasses:

1. Contacts or causes a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means.
2. Continues to follow another person in or about a public place after being asked by that person to desist.
3. Surveils or causes a person to surveil another person.
4. Makes a false report to a law enforcement, credit or social service agency against another person.
5. Interferes with the delivery of any public or regulated utility to another person.

… "[F]or the purposes of this section, 'harass' means conduct that is directed at a specific person and that would cause a reasonable person to be seriously alarmed, annoyed, humiliated or mentally distressed and the conduct in fact seriously alarms, annoys, humiliates or mentally distresses the person."

The appellate court then reasoned:

"[T]he issuance of an order of protection is a very serious matter" because such an order "carries with it an array of 'collateral legal and reputational consequences' that last beyond the order's expiration." "Therefore, granting an order of protection when the allegations fail to include a statutorily enumerated offense constitutes error by the court."

Here, the superior court did not find that Buonsante had engaged in one of the acts enumerated in [the harassment statute]. The court instead appears to have found that Buonsante "knowingly and repeatedly commit[ted] an act or acts" that harassed Wineberg. The court found that Buonsante had "reached out to [Wineberg's] friends and family member[s]" in order to "malign" him by sharing negative background information. Although the information was already in the public record, the court reasoned that Buonsante should not have informed others of it, and found that she had done so solely for the purpose of harassment.

It is undisputed that Buonsante neither made nor attempted contact with Wineberg; Buonsante therefore maintains that her conduct was not "directed at" him as [the law] requires. She relies on LaFaro v. Cahill (Ariz. App. 2002) …. The plaintiff in LaFaro sought an injunction against harassment in part because he had overheard the defendant call him pejorative names during a conversation with another person. We concluded that the defendant's communication with the third party did "not satisfy the statutory definition of harassment, which requires a harassing act to be 'directed at' the specific person complaining of harassment." We concluded that, although the defendant was talking about the plaintiff, "his comments were 'directed at' [the third party], not [the plaintiff]." …

Although we stopped short in LaFaro of holding that a third-party conversation could never meet the definition of harassment, the facts here largely parallel LaFaro's. Buonsante spoke about Wineberg to third parties and disclosed damaging, but not private, information. Like the plaintiff in LaFaro, Wineberg learned of these statements and found them distressing. But they were "directed at" the third parties, not at Wineberg.

While we do not minimize the impact of Buonsante's actions on Wineberg, we conclude that they do not satisfy [the harassment statute], and that the superior court abused its discretion by determining otherwise….

The court therefore didn't have to reach Buonsante's arguments that the injunction violated the First Amendment and improperly restrained her rights to possess firearms.

Christopher J. Torrenzano (Stillman Smith Gadow) represents Buonsante.