When I saw Adam Liptak's article this morning, I clipped and highlighted it. Next semester's final exam in the making, I thought; State what's wrong with this court ruling. I agreed with Jim Maule. But then I got to thinking, this is too easy, picking on a local judge, particularly a Florida judge, since Bush v Gore, based on reading cases in the so-called ivory tower of academia.
I think this is more likely to be a tempest in a Conlawprofs teapot than a national storm or cause for alarm. I think there's more to this picture, so, here goes. The following quote is from the article: "It has alarmed experts in First Amendment law, who say that such orders prohibiting future publication, prior restraints, are essentially unknown in American law." *** First, I'm not so sure this is either a 'prior' restraint or is alarming. He's disparaged her already and he threatens to continue. The order restrains a continuation of past (mis)conduct. He's harassing her. The court has told him to stop for now. That part is correct, even if it involves speech. I'm also assuming this is a temporary restraining order between former domestic partners, at the start of a piece of litigation between only them, where he has been taking verbal shots at her in the recent past. Warring domestic partners frequently obtain ex parte TROs against each other based solely on their sworn say-so from Family Courts which require the former spouse, lover, or roommate not to contact, harass, disparage etc., the other directly or indirectly to or in front of third parties, especially in front of the kids. Is this a violation of the First Amendment, a court order forbidding one to say bad things about the other? Is it content/viewpoint neutral? No. Is it a prior restraint? Maybe, but I'm not too sure because it's based on past (mis)conduct. I always have this problem telling when a restraint is prior or past; you'd think I could've figured out the difference between yesterday and tomorrow by now, but not from reading cases so far. Family Courts typically try to put out fires before the litigants start shooting live ones at each other. Their ex parte orders are temporary, lasting maybe five days or so, for the few days before a hearing can be arranged, more in the nature of an OSC. Family Courts are in the business of preserving lives now so the litigants can enjoy their First Amendment rights later. It messes up the court process to have the litigants taking shots at each other in front of others while we're trying to calm things down to help people to move on, in peace. I don't see the nation as going to perdition because the Family Court tells one party to put a cork in it until we hold a hearing at which both parties have the opportunity to appear. The Florida Circuit Court (which I presume is akin to a Family Court in this instance in the sense it handles a volume of requests for TROs and OSCs in domestic cases) told the man, Tucker Max, to steer clear of Katy Johnson's website. If she wants to portray herself as a saint, what's it to him? They're Splitsville. He's supposed to be out of her picture. Yet he wants to link to her web site and pour rain on her parade? Why can't she control who links to her web site, or is that against the Internet Rules? What internet rules? How about the ones we make up as we go along. Oh, First Amendment rules, that's different? I'm not so sure, until I see a case on it. I see a big difference between the NYT reporting on the fight between the former couple, and what Mr. Max does. The local judge, however, didn't restrain the Times from reporting on whether Katy's a hypocrite or not. Judge Diana Lewis merely told Max not to write about Katy on his website, not Adam Liptak. And not forever, but now, for the time being, I presume from the context. Had Max called the NYT and said, "My ex-girlfriend is running around with other men and pretending she's a saint," I don't think the call would've gotten past the receptionist. But because this fight occurs over the 'Net, and it's been restrained, it's news. Isn't a TRO requiring parties not to verbally harass or disparage one another a content-based, not viewpoint-neutral, government-mandated restraint? I don't recall any SC cases denouncing TROs as applied to fighting domestic partners, as opposed to traditional broadcast media, as undermining FA protections, or holding 'disparagement' or 'verbal harassment' to be protected categories of speech. I don't see a personal web site as being quite the same as traditional broadcast media. My guess is the Court is more than likely to uphold a TRO prohibiting temporary disparagement as a compelling state interest in preserving the peace between two former domestic partners, as contrasted with the somewhat lower value placed on Max telling the world that Katy is not the lovely person she presents herself to be. Plenty of time for Max to get his message out in other ways, later, than by messing up Katy's attempt to try to turn what he believes to be a new but undeserved leaf. Let the next 'buyer' beware of Katy without Max's help. Do we really need to protect Max in his attempts to warn Katy's future friends and admirers about his sad experience? I think she's got a right of privacy and a right to present herself to the world that trumps his alleged speech right to disparage her and make her life difficult. His duty is to move on, quietly. I see this right of Katy's as perhaps overlapping, but somewhat different than her right to protection from defamation even if it's 'only the truth' he wants to tell about her. It's her right to be free from harassment and to control her own image, her public persona versus his right to say it ain't so, constantly, because he's p.o.'d at her for getting dumped, perhaps. Katy is not Bill Clinton, and Max isn't Jay Leno. Ah, but she's taken to a public forum to proclaim her virtue, and that should make a difference, right? I'm not so sure we regard the 'Net the same as we would, say, if Katy went on TV or took out ads in the local newspaper proclaiming her virtue. I think Max could then write a letter to the editor and say, "I happen to know differently." He could tell his friends, face-to-face, that Katy isn't all that she makes herself out to be. But carrying on a continuing publication vendetta in public has little value in conveying ideas. Private vendettas are another form of fighting words, that ought to go unprotected. Saying something once, even the truth, may be fine, but continuing to do so at some point becomes harassment and a violation of the right to be let alone. Maybe that's what Judge Lewis's order is about. Can Max go to Katy's birthday party and tell all her friends and relatives she's not-such-a-nice-person? I don't think so. I think that's a bit like going into the local church, synagogue, or mosque and telling the spiritual leader you don't like his message or his god because it's unsupported by scientific research, etc. You'll cause a riot and unsettle the congregants. FA doesn't allow that, does it? I think there is, or ought to be, at least, a protectable privacy right to keep from being harassed, meaning disparaged based on a different image or viewpoint, i.e., content-based, in a forum like the Internet, which means different things to different people according to how we use it. Some see it like conversing in an outdoor caf�, not quite the same as mounting a podium and addressing the crowd, even tho' both occur in a public place. Maybe some places are more public than others. I haven't checked out Katy's website. It could be she's opened herself up to a bite of criticism, perhaps even from Max, such as if she referred to him. But suppose she didn't? Doesn't she have a right to say "I'm really a good and wonderful person." As of today, at least, regardless as to how she may have behaved or been perceived last week. On the subject of local-level courts compelling the giving up of fundamental constitutional rights, the routine practice in criminal courts in California is to require, as a condition of probation, the giving up of the Fourth Amendment protection against unreasonable search and seizure and to submit to search of the person, vehicle, and residence, in the daytime or the nighttime, with or without probable cause, by a peace officer (cop, probation officer), particularly if the convictioin involved contraband such as drugs or weapons. We say, of course, that the relinquishment was voluntary, and promotes a compelling public interest in safety. If local courts and prosecutors, on a daily basis, pressure people into giving up textual protections of the Fourth, I don't see the gravity of local courts requiring particular individual more-or-less private litigants from continuing their fight in public for awhile. Eugene notes the issue of whether Katy has become something close to a 'public' figure in the NYT v. Sullivan sense by going onto the 'Net to promote herself, her views, and how she would like to be seen and consulted. Suppose Katy did. Don't public figures have a right not to be constantly harassed even if they did do things that legitimately subject them to disapprobation in the eyes of some? Or are public figures somehow beyond redemption in the eyes of the First Amendment? Does Bill Clinton have to put up with Jay Leno forever? Seems to me the First Amendment takes cognizance of a period of repose, when things grow quiet, and cannot be resurrected again with impunity. It also occurs to me that Jackie Kennedy Onassis used to obtain restraining orders keeping the paparazzi some distance away, impairing their ability, in advance, as in prior restraint, to get the good close-ups that really told some story they wanted to tell graphically in the traditional press. You wanted a viewpoint? There it is, have fun. Tell me what I done wrong, as I'm still new at this conlawprofessing business. Bob Sheridan SFLS -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of James Maule Sent: Monday, June 02, 2003 9:12 AM To: [EMAIL PROTECTED] Subject: Re: Ex parte injunction barring Web site operator from discussing hisex-girlfriend (who seems to be a modestly prominent person) Thoughts? Something like "thank goodness there are courts of appeal...." Jim Maule Professor of Law, Villanova University School of Law Villanova PA 19085 [EMAIL PROTECTED] http://vls.law.vill.edu/prof/maule President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com) Publisher, JEMBook Publishing Co. (www.jembook.com) Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com) Maule Family Archivist & Genealogist (www.maulefamily.com) >>> [EMAIL PROTECTED] 06/02/03 11:43AM >>> Any thoughts on this? Adam Liptak, http://www.nytimes.com/2003/06/02/national/02INTE.html: Katy Johnson, who was Miss Vermont in 1999 and again in 2001, uses her [Web] site to promote what she calls her "platform of character education." "She is founder of Say Nay Today and the Sobriety Society," the site says, "and her article `ABC's of Abstinence' was featured in Teen magazine." Tucker Max's site promotes something like the opposite of character education. It contains a form through which women can apply for a date with him, pictures of his former girlfriends and reports on what Mr. Max calls his "belligerence and debauchery." Until a Florida judge issued an unusual order last month, Mr. Max's site also contained a long account of his relationship with Ms. Johnson, whom he portrayed, according to court papers, as vapid, promiscuous and an unlikely candidate for membership in the Sobriety Society. The order, entered by Judge Diana Lewis of Circuit Court in West Palm Beach, forbids Mr. Max to write about Ms. Johnson. It has alarmed experts in First Amendment law, who say that such orders prohibiting future publication, prior restraints, are essentially unknown in American law. Moreover, they say, claims like Ms. Johnson's, for invasion of privacy, have almost never been considered enough to justify prior restraints. . . . Judge Lewis ruled on May 6, before Mr. Max was notified of the suit and without holding a hearing. She told Mr. Max that he could not use "Katy" on his site. Nor could he use Ms. Johnson's last name, full name or the words "Miss Vermont." The judge also prohibited Mr. Max from "disclosing any stories, facts or information, notwithstanding its truth, about any intimate or sexual acts engaged in by" Ms. Johnson. That prohibition is not limited to his Web site. Finally, Judge Lewis ordered Mr. Max to sever the virtual remains of his relationship with Ms. Johnson. He is no longer allowed to link to her Web site. . . .
