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Freedom of Speech and Family Law

The First Amendment of the United States Constitution guarantees certain freedoms, including the “freedom of speech”. Treatises have been written and a multitude of cases have been decided addressing what types of speech or expression are encompassed thereby, and the nature and scope of governmental or private action is subjected to it. This blog not intending to provide a detailed analysis of this First Amendment right. It is fair to say that an individual’s freedom of speech or expression is not absolute or without certain limits. We have all heard the expression that the freedom of speech does not allow someone to yell “fire” in a crowded movie theater. Nor can freedom of speech serve as legal justification to threaten someone’s life or cause serious bodily harm. These are crimes. Nor can freedom of speech or expression serve as a defense to publishing knowingly false or malicious statements about someone so as to cause harm to one’s reputation or business. These may give rise to civil claims for lible, slander or defamation. What about simply writing about one’s spouse, ex-spouse or children on Facebook or other forms of social media? Certainly, if not threatening or defamatory, this would be protected from restriction or interference under the First Amendment’s freedom of speech wouldn’t it? In light of the recent decision of the New Jersey Appellate Division in the case of State of New Jersey v. H.L.M. issued May 13, 2014, the answer may be no. While this case arose in the criminal context, it would appear to have implication on family law matters as well.

 The circumstances leading to the H.L.M. decision originally emanated out of a matrimonial/divorce setting.   H.L.M. and her husband were the parents of two children. During the pendency of a divorce proceeding, an Order had been entered granting custody of the children to the father. Subsequently, the mother, H.L.M., failed to return the children at the conclusion of her visitation with them, and it was determined that she had attempted to flee with the children to Canada. She was taken into custody before she was able to cross the border and criminal charges were filed against her. HLM was also ordered to undergo psychiatric evaluation and treatment. Determining that HLM was not complying with those directives which were a condition of her bail, the State moved to revoke her bail and in addition, alleged that she had also commenced making “disturbing” blogs on Facebook. In revoking HLM’s bail, the court viewed those blogs as “rambling, irrational, disturbing and bizarre”, and reiterated the requirement that she undergo a psychiatric evaluation. Ultimately, that psychiatric evaluation was done. At sentencing, as a special condition of Probation (SCP), the court ordered at the request of the State that HLM was refrained from blogging about her ex-spouse or the children, including that any such blogs include no reference to him or the children. HLM was subsequently violating her probation including by blogging about her ex-husband and the children, by simply substituting the word “Camelot” for them in her blog. The Court found that HLM had violated this SCP and did so deliberately, notwithstanding her references to “Camelot” instead of her ex-husband or children by name. Shortly thereafter, HLM was accused of a second such violation, and during the pendency of that proceeding, she filed an appeal on various grounds, including that the SCP was void for vagueness under the Fourteenth Amendment and that same also violated her freedom of speech under the First Amendment. In affirming the Order of the trial court, the Appellate Division not only rejected HLM’s vagueness arguments, but also found that the SCP did not violate her First Amendment rights, and in so doing, noted:

“First, the SCP is narrowly tailored and does not prohibit defendant from blogging about anything or anyone else other than her family. Second, SCP is directed at protecting the victims of defendant’s crime, her ex-husband and children. Finally the SCP was imposed with the purpose of advancing defendant’s rehabilitation, mainly to deter her from engaging in behavior that is harmful to her victims and to lead a law-abiding life.”

Beyond that, HLM’s blogs were “about” her ex-husband and the children, if not by name directly then through the “Camelot” pseudonym, there was no discussion in the opinion regarding the substance of such blogs as HLM may have posted on her Facebook or other social media, including whether there were any threats or other false or malicious statements or the extent that same were “harmful” other than their mere reference to them. What significance may this have to family law matters?

The use of social media is exploding, whether Facebook, Twitter, Instagram and other social media forums too numerous to count and with new ones seemingly arriving every day. The parties may be going through an acrimonious divorce. Maybe there are not any children involved. Out of anger or frustration, or maybe simply as a matter of catharsis, one spouse writes something on their Facebook page or tweets something critical about the other spouse. My colleague wrote a blog a few weeks ago addressing this decision in the context of how social media can be used against you to affect your family law matter.   Can the spouse against whom the comments were made go to court to restrain the other spouse from engaging in such actions on the basis that same were upsetting, embarrassing or maybe even humiliating, although nowhere approaching being false or defamatory? Could the court restrain such conduct as somehow being viewed to be “harmful”, and therefore not violative of any First Amendment concerns?

Say there are children. Say the non-custodial parent posts things on social media regarding issues, problems or concerns relative to her relationship with the custodial parent or about the children. Would a court be able to restrain such activity if the custodial parent objects under the specter that it was somehow contrary to the best interests of the children to have that stuff “out there”, even if not specifically addressed or directed to them? Note that in HLM the mere reference to the ex-spouse and children being deemed “harmful in and of itself’ was sufficient justification for rejecting First Amendment freedom of speech argument. Historically the courts of this state have relied upon their parens patriae jurisdiction and the benchmark of the “best interest of the child” to allow for such things as the piercing of privileges, disclosure of residents information under A.C.T. as well as constitutionally recognized parental rights on the basis of same. See generally Kinsella v. Kinsella, 150 N.J. 276 (1997); Sacharow v. Sacharow, 177 N.J. 62 (2003); M.v. K., 186 N.J. Super 363 (Ch Div. 1 982). Would the invoking of these principles suffice in overcoming any freedom of speech arguments?

One could also see these concerns coming up in the Domestic Violence context. Often included in Restraining Orders are restraints against the offender having any contact with the victim and possibly even any children of the parties. While it is commonly understood that such “context” have been broadly defined to include things like emails or texts, usually those communications are made directly to the beneficiary of the restraints. What about comments made on Facebook, Twitter, etc., which are posted, and may even be intended in some way to maybe be seen by the DV victim or the children, but is not specifically communicated or addressed to them? As in HLM, could this be the proper subject of a Domestic Violence Restraining Order without regards to freedom of speech concerns?

Again, the HLM case could be viewed as arising out of unique circumstances and at this juncture, is unpublished, but its potential impact in family law matters cannot be discounted. As the use of social media continues to grow, expect these sorts of issues to come to the forefront in family law matters.