Sunday, January 13, 2008

Another Blogger Free Speech Issue in U.S. Family Court

Last week, we wrote about a Vermont Judge's order that publication of a man's "divorce blog" cease. In that matter, the Court acted on a claim by the blogger's wife that she was harassed by the blog's ongoing, "fictionalized" account of their failed marriage.

The Providence Journal reports today on another case that raises parallel constitutional issues regarding blogs and freedom of expression.

A Rhode Island family court has issued an order precluding a blogger from publishing information that identifies specific children whose parents are involved in a bitter custody dispute.

The Order requires the blogger:

"... to remove any and all written and pictorial information pertaining to the children in the above matter, from the inception of publication to the present and henceforth, and to cease publication of the blog as it pertains to these children. That mother and father are ordered to facilitate cooperation in this process.”
According to the Journal report,

Now, Ms. Grant — who heads the Parenting Project based at the Mathewson Street United Methodist Church in Providence — is asking the state Supreme Court to overrule Family Court Judge John A. Mutter, saying his order violates her constitutional rights to due process and freedom of speech.

And so, the case is emerging into a broader legal battle, which addresses both the right to free speech on the Internet and the privacy rights of children in Family Court. Each side says it is trying to protect the children.

“There is no question the Internet and blogging are the new frontier in free speech law,” said Rodney A. Smolla, a First Amendment scholar and dean of the law school at Washington and Lee University in Lexington, Va. “One obvious reason is the kind of statement that used to be made in backyard gossip or around the water cooler can now be spread around the world. I think the courts are in the midst of an ongoing effort to translate traditional free-speech doctrines into this new arena.”

Different First Amendment standards have always applied when cases involve children, Smolla said. Courts are likely to uphold restraints aimed at protecting the identity and “significant privacy interests” of children, he said. But, he said, “That doesn’t mean you can ban all commentary on cases involving children.”

(h/t Kevin at LexBlog)
- Garry J. Wise, Toronto

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