Pennsylvania Family Court Orders Father To Delete Blog Critical Of Ex-Wife

Does a family court have the authority to tell a parent to delete a blog critical of his ex-wife?

Doug Mataconis · · 11 comments

An interesting case out of the Philadelphia suburbs that involves an intersection between the First Amendment and Court authority in Family Law case:

A Doylestown Township man is claiming a Bucks County judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle. Anthony Morelli, 42, complied last month with the order handed down by Family Court Judge Diane Gibbons. He then hired Doylestown attorney Kevin Handy to appeal the ruling to the Pennsylvania Superior Court, citing violation of his First and 14th Amendment rights. Gibbons, who through her staff declined to comment on the open matter before the court, made her ruling in an effort to protect the two children of Anthony and Allison Morelli, according to her statements in transcripts of court proceedings. In doing so, she made it clear that violation of the no-blog ruling could jeopardize Morelli’s standing in the custody case. Court records show Gibbons told Anthony Morelli and his girlfriend, Misty Weaver-Ostinato, who created the website, are wrong if they believe the order infringed on their free speech. “This is about children,” said the judge during a June 14 hearing. “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive.” “In my view, the judge crossed the legal line, from determining custody to controlling (Morelli’s) behavior. My client’s actions are protected by the First Amendment,” said Handy. He pointed to the recent U.S. Supreme Court ruling striking down a California ban on the sale of violent video games to minors. That decision, said the attorney, reaffirmed the principle that the government can’t restrict otherwise constitutionally protected speech for the “ostensible purpose of protecting children.” Morelli and Ostinato also claim Gibbons violated their 14th Amendment rights when she ordered the site taken down without allowing evidence, or the opportunity to argue or object, said Handy. Anthony Morelli has found other support among First Amendment scholars as well as an online community that has used the website to post comments about their own divorce and custody experiences.

The site in question is presently down and redirects to a site dedicated to the claimed First Amendment violations of the judge’s order, but it’s fiarly easy to figure out what the content was like:

Anthony Morelli and Misty Weaver-Ostinato started The Psycho Ex-Wife (www.thepsychoexwife.com) on Dec. 21, 2007. Weaver-Ostinato wrote the first post. In a Dec. 22, 2007, post called “Cast of Main Characters,” Morelli and Weaver-Ostinato identified Morelli’s ex-wife as “PEW = Psycho Ex Wife.” They made psychological evaluations of and criminal allegations against her family. They identified the judge (presumably Gibbons) as “JC = Judge Contempt,” claiming she “has found PEW in contempt more times than not.” The post — the first on the blog to get comments — got 88 comments, mostly from people praising the blog and commiserating. The post was followed a few days later by a post called “About the Psycho Ex-Wife.” That post, which got 228 comments, could be read as the site’s manifesto: “We are NOT anti-mother or simply pro-father, we believe all children deserve BOTH parents, unless there are serious issues which prevent one parent from providing a stable, loving environment. An environment where the children are encouraged to love and be loved by both parents. “We offer a view few judges will ever see. For attorneys, custody evaluators, guardians ad-litem, and judges, a custody case ends with their decision. They make a ruling and walk away with nary a care as to how clients can, and do, go against the orders they have handed down.” Morelli and Weaver Ostinato wrote hundreds of blog posts in the four years that followed. Most of the posts outlined their personal struggles with divorce and custody proceedings.

The potential First Amendment issues here are fairly easy to see. Morelli started a blog dedicated to his frustrations with the divorce and child custody battles that he was going through. That in itself isn’t unusual as I am aware of several small blogs here in Virginia that are decidated to nothing more than venting by ex-husbands or ex-wives about the perceived injustices they have suffered at the hands of Virginia’s Domestic Relations laws. Most of the time, these complaints are meritless rants, but that doesn’t mean that they are not protected by the First Amendment. If someone feels that they’ve been treated badly by a Judge, they ought to have every right to express those opinions.

This is what makes the judge’s ruling troubling. As noted in the highlighted text above, it appears that a good portion of the posts on the blog over the past four years have been directed toward frustration at the judicial system rather than rants against the ex-wife. That would clearly seem to be protected speech.

There is, however, another consideration.

A common part of every custody agreement and custody order that I’ve ever seen is a provision that provides that neither parent will talk in a disaparaging manner about the former spouse in front of the child(ren). This is something that courts generally insist upon, believing it to be in the best interests of the child(ren) that they be permitted to maintain a good relationship with both parents despite the fact that the family unit has been split apart. This isn’t always an easy provision of a Court Order to enforce, of course, because determining what is said behind closed doors is difficult. In this case, the judge apparently believed that the blog was so disparaging of the child(ren)’s mother that there was no alternative other than to order that it be taken down.

A few issues come to mind here.

First of all, one wonders why the judge couldn’t have simply ordered Morelli to delete all the blog posts that were critical of the ex-wife and to post no further such material in the future. This would certainly seem to be a far less intrusive solution to the problem. Now, it’s entirely possible that even the blog posts that complained about the court were so replete with insults directed against the ex-wife that it was impossible for the judge to do this, that’s something we cannot know without having access to the original blog posts.

Second, one wonders why courts in custody cases should have any right at all to restrict parental speech, either with their children or with the rest of the world about matters that the court thinks the children shouldn’t be subjected to. Eugene Volokh has written several pieces about this subject over the years, including a lengthy article in the New York University Law Review (PDF) that covers the issue, and how it has been dealt with by the courts, extensively. In a 2007 post at The Volokh Conspiracy, Professor Volokh rejected all of the common arguments made in favor of a courts authority to restrict parental speech, and made this point:

In intact families, both parents have the right to teach their children what each of them pleases. But in split families, one parent may want to stop the other parent from, for instance, teaching a child a religion or political ideology that differs from what the first parent is teaching. The parent may argue — as one New Jersey appellate court actually held — that “[i]t is implicit in protecting the primary caretaker’s right to raise and educate his children in his chosen religion to prevent others from simultaneously educating the same children in an alternate religion.” Yet while many parents sincerely want to stop the other parent from teaching the child certain views, it’s hard to see why this desire should be given the force of law. When two people have a child together, each must reasonably expect that the child will be exposed to the other’s teachings, including teachings that might change over time. There’s no reason why the breakup should increase one parent’s control rights relative to what they were before the breakup, and thus decrease the other parent’s speech rights.

It’s worth noting that most of the case law in this area deals with issues such as religion, or parents who desire to teach their children a certain viewpoint about issues like homosexuality, so it’s possible that one could make a distinction for First Amendment purposes in the case of speech that was purely disparaging of the child(ren)’s other parent. However, in 2005 Volokh made note of a case in Louisiana where a father had been held in contempt for using a racial slur in reference to his child’s stepfather in front of them, and stated the following:

It seems to me that the order is unconstitutionally broad and viewpoint-based. Even if it were constitutional to bar the father from saying anything derogatory about the child’s stepfather, I don’t think a court may enter an order that (1) goes far beyond protecting the child’s relationship with his new family, and that (2) focuses only on statements that express a racist ideology. I agree, by the way, that teaching a child racist ideology (or various other kinds of ideologies) is against the child’s best interests, which is the standard legal test in child custody cases. It just seems to me that the First Amendment limits the extent to which the government may restrict parent-child speech even when the government is trying to serve the child’s best interest.

It strikes me that we may have a similar situation here. Rather than simply addressing the father’s past and future derogatory comments about the mother (assuming that the Court even has a right to restrict those, which isn’t clear), the Court ordered the entire blog taken down. That strikes me as a bridge too far.