Sunday, May 25, 2014

A Sad Story and the First Amendment

A New Jersey appeals court has waded deep into a family matter, upholding a lower court's order that a woman cannot post what she likes on Facebook and other blogs.

Interesting case.  Sad story.

The woman is nutty.  After her divorce, she lost custody of her two young children.  She kidnapped them in 2011 and was stopped when she tried to take them across the border into Canada.  Kidnapping charges were dropped on the condition that she seek psychiatric therapy.

She was evaluated as bipolar but not dangerous to herself or others.  She did not seek therapy.

I'm a little surprised that the kidnapping charge was not reinstated when the woman failed to live up to the terms of her agreement.  Kidnapping is a serious state and federal offense with appropriately serious consequences.  A dropped charge with conditions is a generous deal.

But the charge was not reinstated.

What the woman did next was take to the internet.  Her posts were said to include references to Jeffrey Dahmer, Satan and Adolph Hitler.  She also discussed her ex-husband and children.  He objected.

An attorney for the state of New Jersey took her to court and asked that she be banned from blogging about her family.  A judge agreed, and she was put on five years' probation with the condition that she stop blogging about her relatives.

She didn't stop.  What she did was to refer to her ex-husband and children as "Camelot" in 161 blog and Facebook posts.  She admitted to doing this in an interview with her probation officer.

The state went after her again.

She claimed that the ban was overly vague, which seems untrue, and that it restricted her First Amendment rights, which seems clearly to be true.

The state appeals court ruled against her.  It said she was limited only from writing about her family and that the reason was to protect her children.  Therefore, the court ruled, the gag order was constitutional.

Obviously her ex-husband is distressed.  Obviously he is concerned about their children.  I'd bet he already has a restraining order to keep her away from them, which makes perfect sense even if she has been found not to represent a danger to other people.

But I think he is going to have to find another way to keep her ravings away from the children's eyes and prepare himself to explain, probably again and again, that when she writes it is her mental disease speaking.

The First Amendment guarantees free speech to everyone.  There is no carve-out to exclude crazy people who are not dangerous and do not incite others to commit harm.

If the ex-husband can establish that the woman presents a physical danger to her children, there are other courses of action that he can and should pursue.

But if this nutty, troubled woman takes her case into the federal court system on First Amendment grounds, I don't see any way New Jersey can win.

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