Friday, January 11, 2008

"Divorce Blogs," Free Speech and Harassment

Techdirt's synopsis of a Vermont divorce proceeding fits nicely into our ongoing discussion of hot freedom of expression issues, north and south of the border:

We've been seeing all sorts of lawsuits lately that show how the rise of technologies like the internet have really caused troubles. Most of these laws were written in a time when it was impossible to imagine a day when anyone and everyone could be their own instant publisher.

Take, for example, a divorce case that is suddenly getting a lot of attention, due to legal questions drawn out by the husband's decision to publish a "fictional" account of his marriage on his blog.

The wife asked the divorce court to issue an injunction, which it did, claiming that the site is harassment. However, the husband is fighting it, refusing to take down the content, noting that it's a violation of his free speech rights, especially since the order bars him from posting anything at all about his wife. There are a number of complications on top of that. First of all, there's the question of whether or not you can use an injunction to stop speech, even if it's defamatory. Then there's the question of whether or not the speech really is defamatory (made even more confusing by the guy's claim that the story is fictional). We're going to be seeing more and more of these cases, as it's going to take quite some time before people realize that the internet changes the way many people will think about certain types of laws.

(h/t LexBlog)

The article references a New York Times article from yesterday, Blog Takes Failed Marriage Into Fight Over Free Speech.

Two legal pundits offered views in the Times story:

“It’s a whole new area for the law to contend with,” said Rodney A. Smolla, dean of the law school at Washington and Lee University and a First Amendment scholar. “It’s a byproduct of the digital world meeting the ancient world of romance, and the law is struggling a lot to find the right balance.”

...Erwin Chemerinsky, a law professor at Duke University, said that in the past, courts could not enjoin speech in the context that Judge Devine has and that a defamation suit would have to come first. If the statements were found to be false, Professor Chemerinsky said, damages, not an injunction, would be the typical remedy.

“But increasingly,” he said, “courts are issuing injunctions to stop negative speech. The Supreme Court hasn’t yet ruled as to whether you could have an injunction in a situation like this, or more generally, in a case of defamatory speech.”

The Supreme Court broached a similar subject in 2005, ruling on an appeal from a man who was barred by a California state court from continuing to picket outside the Los Angeles law office of Johnnie L. Cochran Jr. as well as from “orally uttering statements” about Mr. Cochran “in any public forum.” Mr. Cochran had filed a defamation suit against the man, who was represented by Professor Chemerinsky. The court ruled that the order was an overly broad prior restraint on speech, but the case went no further because Mr. Cochran had died months earlier.

- Garry J. Wise, Toronto

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