Tag: Divorce and free speech

Free Speech and Domestic Violence

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.

 

You Can’t Post That: Free Speech and Child Custody

Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

Florida Free Speech and Child Custody

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children. Currently, grandparents have little to no rights to visitation in Florida.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Not unlike the new EU law, Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN article is here.

 

Free Speech and the Stark’s Divorce

Pity the Starks of the North. As if the Red Wedding wasn’t enough, now they filed for divorce. To keep things calm, the divorce court restrained them from harassing, abusing, or making disparaging remarks about the other in front of their children and employers. Then things went south.

Winter is Coming

After a five-year marriage, Pamela Stark filed for divorce from her husband, Joe Stark. She is an attorney (formerly a prosecutor) and filed her complaint pro se. He is a sergeant with the Memphis Police Department.

Pamela’s email to the town mayor claimed she was a victim of domestic violence by Joe and a victim of misconduct by the entire Police Department in the handling of her investigation.

She named her husband by name and rank and described her version of the physical altercation between them and the events that followed. Pam asked the mayor in an email to “look into this before it goes further.”

Pamela also wrote the following in a Facebook post:

I speak now as a recent victim of domestic violence at the hands of a Memphis Police Officer. I can attest to how wide the thin blue line can get . . . However it is even more devastating. Who do you turn to when those worn to serve and protect and enforce the law, don’t.

Joe asked the divorce court to order the Facebook post removed, arguing “that such dissemination of these allegations could cause immediate irreparable harm to his reputation and employment” because he and Pam have mutual friends on Facebook. The judge agreed.

Florida Divorce and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In one Florida case, a judge prohibited a parent from speaking Spanish to a child. The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

In the Florida case, the judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

An appellate court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Chilling Speech

Joe testified that his co-workers at the police department saw Pam’s Facebook post, that they have many mutual friends on social media, and that a special prosecutor from another city was appointed to conduct an investigation regarding the alleged incident of domestic violence involving him and Pam.

The trial court ordered that the post be removed:

  • The Court: Ms. Stark, please stand. Are you going to comply with this Court’s orders?
  • Ms. Stark: No, I’m not.
  • The Court: All right. I’m making a finding that you are in direct contempt of court by willfully refusing to comply with this Court’s orders. You will be held held in custody until such time that you decide that you want to change your position and you apologize to this Court.

Pam at first refused to take down the post, but was jailed for four hours and then did. Pam appealed the contempt order. However, the divorce case in which the restraining order was entered was still pending.

Because she appealed from the contempt order, she was limited in her ability to raise issues, and when Pam took down the Facebook post, the contempt issue became moot.

The Reason article is here.

 

Communicating During Divorce

The divorce between Jersey Shore star, Jenni “JWoww” Farley, and her husband, Roger Mathews, is getting uglier. Communicating during divorce, especially when you have children, is never easy. Are there lessons to learn from South Jersey?

communicating during divorce

Communicating ‘down the shore’

The Jersey Shore actress released a long statement on her website, accusing her ex of physical abuse and allegedly putting their two young children in harm’s way.

In a video message released the following day, Mathews said her “rant” was “highly erroneous” and “had many lies in it” and then he posted copies of legal documents he says his attorneys sent to the divorce judge.

Mathews posted a lengthy written message on his website:

You painted me as a woman beater. The facts are these. No one, man or woman, husband or wife has the right to put their hands on each other. I take responsibility for that night in question, and one other night that I can think of that, I pushed you. You edited out your actions and violent behavior prior to me pushing you which I knew you would do.

Not to be outdone, JWoww’s team then said in a statement that the accusations he makes in the documents are “laced with false statements.”

Florida No-Fault Divorce

I’ve written about communicating during divorce before, and the “good divorce” too. Historically in Florida, in order to obtain a divorce, one had to prove the existence of legal grounds such as adultery.

This often-required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.

Florida Statutes actually still provide that these things may be considered under certain circumstances in the award of alimony, equitable distribution of marital assets and liabilities, and determination of parental responsibility.

However, case authority shows little consideration from a legal perspective, relegating them to more of an emotional appeal. But just because Florida does not require a showing of fault does not mean you should go out and create fault either!

In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”

In Florida, either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months before filing the petition, and the marriage is irretrievably broken.

Fist Pump!

For Jersey Shore cast members, whose way of life was “GTL” (gym, tan, laundry) communicating during divorce is not the time to pull punches. But should they be making these online admissions?

We look like a–holes to the world. We are. We are both a–holes.

Mathews also added:

You claim in your rant that I put our children in harm’s way by filming myself and driving. I was doing 20 miles an hour leaving my buddy’s development, but I will concede that that was not well thought out and I will absolutely refrain from doing that in the future. It’s hypocritical of you however cause you are on the phone constantly while driving and doing your makeup and texting.

Communicating during divorce can be ugly and spiral out of control. Many would be surprised to learn divorce lawyers and judges are not spoiling to see a good fight.

The E Online article is here.

 

Divorce Privacy

Like any optimist, U.S. Rep. Keith Ellison is hoping divorce privacy laws will keep his personal history from impacting his campaign to become Minnesota attorney general. That may be difficult with the Star Tribune suing to unseal his divorce records.

Divorce Privacy

Minnesota Allegations

Ellison and his ex-wife, Kim Ellison, divorced in 2012. The related records have been sealed, so the public cannot access the information. The efforts to unseal the divorce records follow allegations by Ellison’s ex-girlfriend, Karen Monahan, that Ellison domestically abused her in 2016.

Ms. Monahan, a Sierra Club organizer, reportedly said she suffered “emotional and physical abuse” during their long-term relationship, including an incident in which she said Mr. Ellison dragged her from a bed and screamed obscenities at her.

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public, but judges will often agree to seal them if both parties to the case agree and no one else objects.

Florida Divorce Privacy

I’ve written on divorce privacy issues before. Divorce privacy is an issue that comes up a lot. Divorces in court are public events, and the filed records of court proceedings are public records available for public examination.

Both the public and the media can challenge any closure order by a divorce court. The closure of court proceedings or records should only really occur  when it’s necessary to comply with established public policy, to protect trade secrets; or to protect children in a divorce among other reasons.

Florida also has new rules protecting sensitive data from public view. This includes protecting Social Security, Bank Account, Debit, and Credit Card Numbers because if those numbers are included in a document, they may become part of the public record.

If information is absolutely required, there is a rule with procedures for sealing and unsealing of court records. Also, the Clerk of Court has the authority to redact or make confidential only specific information.

If sensitive information has already been filed in Court Records, you must complete and submit a “Notice of Confidential Information Within Court Filing” in order to remove or seal it.

Close Race

The Star Tribune argued that, given the public interest around that situation and Kim Ellison’s public support of her ex-husband, the divorce records are a matter of concern to voters.

Divorce records are typically public in Minnesota, but judges will often agree to seal them if both parties to the case agree and no one else objects. The Ellison campaign released a statement from Kim Ellison on behalf of both her and Keith Ellison.

“Our divorce simply isn’t the public’s business, and therefore, when we separated, we jointly asked the court to seal the file. Now, one month before a closely contested election for Minnesota Attorney General, a conservative group wants to probe our divorce file in search of something to use against Keith in this race. I am disappointed that the Star Tribune would choose to file this motion.”

Polls show this is a very tight attorney general race. A poll released September 16 shows Republican challenger Doug Wardlow and Ellison with 41 percentage points each. The Star Tribune/Minnesota Poll released September 19 shows Ellison with a five-point lead. That is still within the margin of error.

The Star Tribune article is here.

 

Divorce & Free Speech

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Divorce on Wednesday, June 17, 2015.

The colorfully named “The Pyscho Ex-Wife,” was a website launched by a divorcee to air his frustrations about his divorce. It turned into a battle over free speech. Can you publicly bash a parent, or does the best interests of the child beat free speech?

The Psycho Ex-Wife was a popular site:

“We have been through 3 custody evaluations, 6 false contempt petitions, 3 custody schedules, 1 psych evaluation, 1 false child abuse allegation, 2 false calls to the local sheriff’s office, 4 years of parental alienation, $80,000, 1 break in, 1 case of stalking, 1 restraining order, and we FINALLY have 50/50 custody of their children”

The blog quickly grew into a huge community, with a recommended reading list in which registered members discussed everything from mental health to legal issues.

The Wife complained to Pennsylvania, Judge Diane E. Gibbons judge, who ordered him to shut The Psycho Ex-Wife down.

“Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than ‘happy birthday’ or other significant school events.”

“I don’t care if you guys fight in private,” Gibbons said in her ruling. “I don’t care what you do in private. But you are not going to do it in front of these kids.”

I’ve written about free speech and family law before. According to UCLA law school professor and First Amendment expert Eugene Volokh:

“The court order categorically orders the removal of a Web site, and prohibits all public statements – factually accurate or not – by one person about another person,” he wrote. “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult.”

In Florida, as under the U.S. Constitution, offensive speech is protected as long as it isn’t obscene, defamatory, or threatening to national security. Speech restrictions are ordinarily unconstitutional.

However, if the speech restrictions in family court are narrowly focused on preventing one parent from undermining the child’s relationship with the other parent, they may pass constitutional muster.

Professor Volokh’s exhaustive article published in the NYU Law Review is available here.