Court Says First Amendment Protects Ex-Wife's Right To Publicly Discuss Her Ex-Husband On Her Personal Blog

from the [gestures-at-Dr.-Velyvis]-anyone-can-start-a-blog-on-Wordpress dept

What appears to be a very combative divorce between two very combative people in Marin County, California has reached the point of criminal charges. Not justifiable criminal charges, but criminal charges all the same.

Melissanne Velyvis has been very publicly documenting everything about her divorce proceedings and her ex-husband’s (Dr. John Velyvis) alleged domestic abuse. In an apparent attempt to silence her from discussing her personal life (which necessarily involved discussing his personal life), John approached a judge and secured a restraining order forbidding his ex-wife from publishing “disparaging comments.” Here’s Judge Beverly Wood making her feelings clear about Melissanne’s divorce-focused blogging:

“I really came into this hearing not wanting to issue this order and really hoping that I wouldn’t have to issue this order, but it has to stop,” Wood said, according to a transcript of the proceeding. “It really has to stop. And I need to tell you that if you don’t stop this, this can become a criminal matter. I don’t think you want to go there.”

The order was expansive. It not only banned future “disparaging” posts but ordered the removal of everything fitting that description Melissanne had posted in the past.

I am making an order that you remove any posting on social media on Internet regarding Dr. John Velyvis and that you not post anything on social media regarding Dr. Velyvis or his children directly or indirectly. […] I am going to order that you prevent disseminating any information about Dr. Velyvis to any parties absent a court order or subpoena.

Melissanne did not stop posting. Last December, Marin County prosecutors filed criminal charges over the violation of the restraining order. The prosecutor argued the prior restraint was Constitutional because the alleged harassment targeted by the order was unlawful.

Melissanne challenged the order. Seven months after being criminally charged for discussing her divorce and her ex-husband online, the restraining order has been dismantled by another county judge.

[Judge Roy] Chernus ruled on the petition on July 27. He agreed that the prior court order was an unconstitutional block on free speech, and said the criminal charge could not stand.

“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,” Chernus wrote. “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.”

The ruling [PDF] (thanks, Volokh Conspiracy!) makes it clear the order is only unconstitutional as far as it applies to Melissanne’s online postings. Other elements regarding “unwanted contact” still apply.

The court cites a handful of other divorce proceedings in which similar restraining orders were found unconstitutional. Just because one of the parties may feel harassed by the other party’s discussion of ongoing acrimony doesn’t make it unlawful for the party to engage in this speech. Unless the speech falls into narrow categories (like defamation or true threats), the speech is Constitutionally protected.

There is nothing on the face of the complaint, or in the Family Court judge’s judicially-noticed findings 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.

Since the order is invalid, so is the criminal charge.

Violation of this portion of the DVPO, therefore, is not an actionable offense.

The protective order can still be violated but it can no longer be violated simply by posting content Dr. John Velyvis feels is disparaging or personally harmful. The First Amendment — and California’s own Constitution — protects the right of divorce participants to make each other as miserable as possible. Which is as it should be, since divorce is just as much an American tradition as free speech itself.

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Comments on “Court Says First Amendment Protects Ex-Wife's Right To Publicly Discuss Her Ex-Husband On Her Personal Blog”

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Tease says:

Re: Re: strategy

so would it be stratigically advantageous that Ms. Velyvis intentionally violated the judges order in an attempt to give her grounds to file the Demurrer to complaint?

were there other avenues for Ms. Velyvis to contest the restraining order against her speech. Or was going to jail first her way of getting this in front of a different judge (a criminal judge)? Seems it may have been more advantageous and clearly the family court judge was biased and over reaching…

Anonymous Coward says:

… Judge Beverly Wood clearly acted illegally and should be directly sanctioned by the California State Judicial authorities.

That won’t happen of course. Holding judges personally accountable for their official criminal misdeeds makes all the other judges uncomfortable.

The prosecutor who filed the charges should also be sanctioned.

YouHaveAGoodPoint (profile) says:

Re: Re: Re-read the Site/ Author Was Marginalized and Sidelined

The Author is defending herself based on this Judge Beverly Wood’s misconduct, and the fact she is unprotected.

There is an entire campaign going on in parts of the world called, "Air Dirty Laundry" to expose Domestic Violence. This is a public concern. Abuse happens behind closed doors.

Anonymous Coward says:

Just in the last post, she mentions his three children attending a religious function with her. I dont have time to go through all the posts, and i dont know if she does it elsewhere in the blog, but i find that describing innocent minors in her dispute is a shame and a violation of their rights to be kept out of this, however legally acceptable it may be.

Anonymous Coward says:

Re: Re: Re:

Not everything that is legal has to be moral, this is one case. Play all your first amendment right, but keep children out of it, because they cannot defend themselves. This is my opinion of course. How avoiding dragging kids into internet dirty laundry as someone above suggested is "so 1945", only you know.

YouHaveAGoodPoint (profile) says:

Re: I agree with Anonyamous Coward on That One

Absolutely! I believe there is another post that states "childrens" names removed from a court document within the site. Although there were no name of the children on the Home Page you are referring to, it has been edited to show no mention of the word children. Legal or not, I agree that care should be taken.

Rishxib (user link) says:

hot russian mom

Missing and praising Mothers

I adore it!

of course we think of and miss our mothers every day every day! But a birthday is a good time to zoom some particular energy in her direction whether here or, surely, "at this time,

I have friends who will visit graves on Sunday and individuals that, Mired in a lonesome and annual funk, Will not be interested in anything. I also know of folks that will dress up a bit more for church wouldn’t their mothers approve! And maybe go out with an older friend who has played a maternal role.

As botanical gardens from coast to coast prepare for the annual Mother’s Day surge of visitors this week, A very good and long time friend of mine took me to the Atlanta Botanical Garden on Sunday to show me something special her family did there to honor her mother who died almost two years ago.

margaret (1915 2009), Also a longtime friend, Was a founding person in the Botanical Garden in its infancy when it was run from a trailer in 1976. "She didn’t do it for social arguments, Her little, Patricia, identified. "She just really liked to in the dirt, (I can vouch for that as I have a thriving crop of ginger lilies copped from her luscious garden where peonies have reached bountiful bloom.)

Fontaine Huey, The Garden’s director of institutional advancement, replied, "My early memories of your backyard always included Margaret" And long time board member and landscape designer Sylvia Attkisson recalled a conversation with Margaret previously about the pitcher plants she had growing in bog areas at the family farm, Sunnyside, In North south carolina.

Because of Margaret’s love of Sunnyside and things outdoors, Her husband Randolph and all five grown children margaret, Patricia, Laura, Randy and Mary wanted to be her generous bequest to the Garden would reflect her botanical interests and loves. affirmed, The recently dedicated Margaret and Randolph Thrower Sweetbay Magnolia <a href=>how to tell if a vietnamese girl likes you</a> Grove satisfies on many levels.

The handful of deciduous sweetbay magnolias are younger versions of individuals been growing at Sunnyside. Their green leaves have a silver underbelly, And the creamy white flowers we spotted one early bloom yesteryear have a little lemony scent which Margaret loved, absurdly. The crimson cone fruits are tasty treats for wild turkey, Quail and songbirds all ample at Sunnyside.

The trees in this memorial "grove" Are on a heightened patio, Alston leave behind, With a spectacular view of the City of Atlanta, Also dear to Margaret and the inheritor in many select ways of her interests.

"What’s wonderful about the increase world, Huey these, "Is that you have the privilege to glimpse into a family and their lives and why they actually do something for the Garden, She recalled a couple who came in in the past and who, After taking in the gardens, Expressed a desire for purchasing a kinetic sculpture Tendrils, Gingko Leaf different versions, 2008 simply George Sherwood, To honor their parents who had in recent years died. They had received a modest monetary gift, Huey believed, But didn’t need the money and wanted to want to do something for the Garden.

Huey said the development office has the ability to direct gifts to support the Garden, whatever size. Gifts may include books for the two libraries, Bulbs for the spring tulip happening or a $10,000 teak bench that have a commemorative plaque. during those times, Members of this group left bequests of a certain level in their wills.

brief review by Martha Hyne on July 10, 2011 with 1:14pm

My comment features my younger Sister who died in 2000 of her second, unrelated cancer. A few days before she died she and I were hanging out together just reminiscing about our time of growing up together. the two of us loved hummingbirds and as we reminisced, We watched the tiny birds at her feeders by the window. She told me any time she was gone, She wanted me to think of her everytime I saw a hummingbird and I promised her I would. right then and there of her Memorial Service the next week, I i thought i’d share that with everyone but did not feel up to repeating it myself, So I wrote it down and the minister read it aloud for all to share with you. I even told it to my friends on a Quilters Chat via internet. asap, These many lengthy later, I have several people upon USA the World who E Mail me to tell me they "Saw a Hummingbird today you will find, I dreamed of you Marilyn, The people who attended her Memorial Service also tell me that they still think of her if he or she see a hummingbird, Whether it does not take feathered kind or just a fingurine, Note pad or on a handmade card. I have two feeders outside my bay window so I think of her often every time they come to feed and when I put new nectar out for them. it is reasonably comforting for me and I whisper her name "Marilyn" if I see one. I have pictures and trinkets of Hummingbirds in every room of my house so Marilyn is with me every day and you will be until I join her in Heaven.

say by JOYCE MARIE BUCKNER OGLES on May 5, 2011 attending 6:50pm

My beautiful little mom was most people supportive people I know. She loved to help and persuade folks.

My Mother Carrie was the best mother. She was taken too soon. She was just 62. She was slain on March 3rd, 1992. I miss her everyday. Now that Mothers Day is coming around it is hard for me sometimes because the Hallmark commercials come on and they make me cry and now that my husband has lost his Mother last June this is our first Mothers Day without celebrating it. My Mother in Law Eleanora was a wonderful person. She always treated me like a son. I miss her within. Its so hard to be without my Mother all this time it was especially hard whenever i was getting married. She was taken too quickly. She only agreed to be 62. She was slain on March 3rd, 1992. I miss her typical. Now that Mothers Day is coming around it is hard for me sometimes because the Hallmark commercials come on and they make me cry once more my husband has lost his Mother last June this is our first Mothers Day without celebrating it. My Mother in Law Eleanora was fantastic person. She always treated me like a little girl. I miss her very well. Its so hard to be without my Mother all this time it was especially hard whenever i was a wedding.

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