Family law frequently involves domestic violence. Can a court enter a domestic violence injunction against former partners or spouses and prohibit posting negative comments on social media about their ex-spouse? A former married couple from Arizona just found out.

Monumental Decision

The former husband asked a court for a protective order against his former wife. He complained that she was stalking his community, delivered his personal information to people in his community, was on his porch looking through the front window, blasted him on social media and harassed his friends and family for a year.

The trial court determined that she had committed the offense of harassment and granted the order of protection. Because of the videos on a social-media platform, the trial court added a directive that the former wife “shall not post” messages about him on the internet or on social media.

The former wife also testified, and she provided a copy of the article she and others had been interviewed, which accused the former husband of having committed stolen valor and other deceitful acts. She also admitted that she had shared the article with others.

Her defense was she had intended only to warn others of his alleged wrongdoing. She denied having trespassed on his property; she admitted having driven past his home, but maintained she could see into the windows from the street.

At the end of the hearing, the court found that her disclosure of negative information about him to third parties amounted to harassment, and an act of domestic violence. The former wife appealed.

Florida Domestic Violence

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.

In 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 harassment. Harassing means engaging in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking, a misdemeanor of the first degree.

Cyberstalking is another form of 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.

Valley of Decision

On appeal, the Arizona appellate court agreed with the former wife. that the court misapplied the definition of harassment, and that her actions were “directed at” her former husband.

A court must enter an order of protection if it determines that the “defendant has committed an act of domestic violence within the past year or within a longer period of time if the court finds that good cause exists to consider a longer period.”

Harassment in Arizona can include contacting or causing communication with another person, following another person after being asked by that person to desist, surveillance of another person, making false reports to police or credit agencies for example.

But the appellate court found that the former wife neither made nor attempted contact with her ex as is required. They were “directed at” the third parties, not at him. The court concluded that her actions do not satisfy the domestic violence statute, and that the trial court abused its discretion by determining otherwise. The court vacated the domestic violence injunction.

The Arizona Court of Appeals opinion is here.