The post’s headline comes from a 2019 restraining order case in Wisconsin. The judge there ordered that a woman “may not post any information about her parents on social media that indirectly or directly relates to either of them” – not just defamatory statements, threats, or otherwise constitutionally protected statements, but any Information about the woman’s parents. And the court added: “The court informs the defendant that all the madness described in these petitions must completely stop.”
I think this order is unconstitutional; there is no First Amendment exception for “insanity.” Nevertheless, I think the reasoning described above is at the heart of some of the decisions.
For example, on Monday, the Ohio Court of Appeals ruled in Kennedy vs. Kennedy (Judge John Eklund, assisted by Judges Eugene Lucci and Matt Lynch) considers an order of the Court prohibiting the parties from
Publishing messages, photos, images and/or content on the Internet and on all social media platforms, including but not limited to Instagram, about the following topics:
– photographs of the parties’ minor child …;
– Comments on the parties’ minor child;
– Alleged conspiracies or abuses with respect to the minor child of the parties and/or persons associated with the minor child…;
– References to the current litigation and/or prior litigation in Colorado … in which the parties have been involved;
– References to other persons related to the current litigation and/or past Colorado family law litigation….
(The parties will) each take such steps as may be necessary within seven (7) days of the filing of this Order to remove any prior Content … containing messages, comments, photographs, images or other content relating to the above-identified topics.
The order was apparently issued in response to the father’s request (although that request may have been limited to information about the child); it was binding on both parties, but in my view it was probably directed at the mother. In any event, however, it seems to me to be unconstitutionally overbroad: even if there is a compelling interest in keeping references to the minor child out of the public domain (and I am skeptical of that), the last two points seem very difficult to defend.
The Court of Appeal did not overturn the underlying order because the mother, who represented herself, did not challenge it on appeal. In addition, the mother committed various procedural errors that led to her arguments being rejected.
But some of the descriptions of the mother’s behavior by the appeal court also seem quite revealing to me:
The (first) court found that both (the mother) and (the father) had a history of mental health problems. The court appointed Dr. Kopit to assist in determining the child’s best interests. Dr. Kopit reported that (the mother) showed signs of delusions. For example, (the mother) claimed that the minor child’s biological father was a member of the heavy metal band Avenged Sevenfold. She denied that (the father) was the child’s biological father, despite two conclusive tests proving this. In addition, (the mother) had made unsubstantiated allegations that Dr. Kopit had sexually abused her during the interviews. The court also said that (the mother)’s testimony was “erratic, confusing and at times illogical.” “The mother was constantly rambling and lost concentration on several occasions.” …
The judge’s decision described (the mother’s) post (which was deemed to be in breach of the order), which included a link to a Google document, and said that it
alleged conspiracies involving (the father’s) family (sister and parents), the Royal Family (King Charles, Duke of Windsor, Prince William and his wife and their children), (the father’s) family (her father, …), and several other individuals. This Google Doc also contained numerous references to the rape of both ((mother)) and the parties’ minor child … by or at the behest of ((father)), other family members, or other third parties.
… (Each of) (Mother’s) claims of error (on appeal) are incoherent, difficult to understand, and express conspiratorial rather than legal or factual arguments. (Mother) signed her brief as “INTERNATIONAL SUPERAGENT” and identified herself as an Interpol officer. Her claims of error argue that the case against her is an “illegal Sorensen dynamic” that amounts to torture in violation of 18 U.S.C. § 2340-2340A. She claims that the Court’s (Mother’s) injunction undermines the role of international security and has “objectively undermined the stability of the global, sociopolitical landscape to increase the power of alleged criminal actors.”
Under such circumstances, it is difficult to win a case, no matter what arguments there may be about the First Amendment in general.
