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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Filed Under: 1st amendment, california, divorce, free speech, john velyvis, marin, melissanne velyvis


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  • identicon
    Anonymous Coward, 19 Aug 2020 @ 11:38am

    It is worth noting that in California state court, a defendant can raise the issue of the unconstitutionality of the court order. In federal court, you have to appeal the order, not simply violate it and hope for the best, even if the order is found unconstitutional.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2020 @ 11:53am

    i don't know but...

    this impending fight between Epic and Apple and Google is gonna be gooooooood!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2020 @ 12:23pm

    ... 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.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 19 Aug 2020 @ 5:46pm

      Re:

      Legally speaking, nothing prevents a judge from being arrested in his own court room, and issuing an unconstitutional order is a misdemeanor under federal law - which becomes a felony as soon as anyone tries to enforce the illegal order.

      reply to this | link to this | view in chronology ]

      • icon
        YouHaveAGoodPoint (profile), 20 Aug 2020 @ 5:46pm

        Re: Re: Hmmm

        Typically one would appeal the wrongful DVPO. In this case it went to a CRIM charge and then sustained on Demurrer. Interestingly the prosecution decided not to pursue and appeal. Are you referring to Title 18 Section 242?

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 24 Aug 2020 @ 8:25am

        Re: Re:

        issuing an unconstitutional order is a misdemeanor under federal law

        Which law?

        reply to this | link to this | view in chronology ]

    • icon
      YouHaveAGoodPoint (profile), 20 Aug 2020 @ 5:42pm

      Re: Judge Roy Chernus is a Standup Judge

      Well it appears this particular judge wasn't intimidated to dismantle the other.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2020 @ 12:24pm

    I guess family court judges don't have to know about the First Amendment.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2020 @ 12:25pm

    I wonder if any woman will ever want Dr. John Velyvis.

    I'm a nice guy, however, "I will shut you up bitch. I'll sue your ass, get violations of law passed against you, now get back in the kitchen before I punch you in face".

    What a catch!

    reply to this | link to this | view in chronology ]

    • icon
      scotts13 (profile), 19 Aug 2020 @ 1:33pm

      Re:

      This goes both ways. Even if the stuff she's posting is true, the willingness to air dirty laundry in public is unattractive at best. Even if I was a saint (few of us are) I'd avoid her like the plague.

      reply to this | link to this | view in chronology ]

      • icon
        YouHaveAGoodPoint (profile), 20 Aug 2020 @ 5:40pm

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 19 Aug 2020 @ 2:40pm

    His wife sure makes him out to sound like a true creep. Hopefully, she isn't just a vindictive loon.

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 19 Aug 2020 @ 2:59pm

    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.

    tl;dr:
    Butthurt is not a tort

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Aug 2020 @ 5:42pm

    • “It really has to stop."*

    Uh, why, Judge Wood, why?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Aug 2020 @ 6:20am

    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.

    reply to this | link to this | view in chronology ]

    • icon
      asscombinator (profile), 20 Aug 2020 @ 12:17pm

      Re:

      violation of right to be kept out of something? what now? you have a right not to participate in something. a right to force others not to talk about you was abolished in germany in 1945. you lost.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 20 Aug 2020 @ 2:47pm

        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.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 20 Aug 2020 @ 3:36pm

          Re: Re: Re:

          And for the record - i find his own phrasing, where he puts his kids together with himself in his complaint, equally disgusting.

          reply to this | link to this | view in chronology ]

        • icon
          asscombinator (profile), 22 Aug 2020 @ 8:45pm

          Re: Re: Re:

          you have no moral or any other right to control what other people say. it's not about children. it's about you declaring authority you do not have, and have no moral right to have.

          reply to this | link to this | view in chronology ]

    • icon
      YouHaveAGoodPoint (profile), 20 Aug 2020 @ 5:31pm

      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.

      reply to this | link to this | view in chronology ]


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