osewalrus (osewalrus) wrote,

I gotta love this case -- First Amendment In The Divorce Court

Freedom of speech, fair use, and divorce. And the blog in question is on LJ!

For those not following the link, the story addresses the case of a divorce in which the husband wrote a fictionalized version of his marriage travails and divorce. There is certainly no doubt it was insulting to his wife, but as far as I can determine there is no claim beyond that it was insulting, demeaning, and cathartic to husband. Husband apparently also used excerpts from wife's LJ. (You can see husband's LJ Here: http://lookatmypugs.livejournal.com/)

Wife petitions divorce judge to prohibit husband from writing about wife on blog. Judge issues order prohibiting husband from posting anything about wife.

As discussed in the NYT article, this appears unconstitutionally overbroad. While there is some case law about restricting disparagement, it generally involves cases with children where the parents are ordered by the court to refrain from alienating the children from the opposing parent. As the NYT article notes, cases involving publication of false statements are settled under defamation law.

Interestingly, the First Amendment lawyers think the wife may have a case over excerpts of her journal (or links, since I didn't see any excerpts) under copyright law. Obviously, the experts in defamation are not as familiar with fair use doctrine.

I can think of a lot of music and fiction inspire by bad break ups. It would be a shame if the First Amendment failed to protect such expression. And, given my brother's recent experiences, I must wonder if the court would have issued such an order if it had been wife writing about husband.

I have heard of a similar instance involving c209a in MA divorce court. Goldsquare, do you have an email for Chris Phelan?

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