Facebook Rant Held to Violate Protective Order

A reminder: you shouldn’t say anything online that you wouldn’t say in person.

A court has held that a man who wrote a rant about his ex-wife on his Facebook wall violated a protective order requiring him to stay away from her. The court told him that he had to write an apology on Facebook, or go to jail for contempt of court.

Apparently, the man was so incensed about how his divorce case went and the child visitation arrangement that it crafted, that he felt the need to vent his feelings on Facebook. As mentioned earlier, the court had issued an order requiring him not to have any contact with his ex-wife. Apparently, the order prohibited him from doing anything that would cause his ex-wife to suffer “mental abuse, harassment, annoyance, or bodily injury.”

However, the article I linked to mentions that he had blocked his wife from viewing his Facebook page, and that she apparently had to have someone else log in for her to see it. This suggests that she had to actively seek out the offending wall post.

Now, regardless of what this man said about his ex-wife, it’s pretty clear (by the fact that he had blocked her from viewing his Facebook page) that he didn’t intend her to read it. And even if he did, the court’s order – requiring that he remove the post and write an apology, or go to jail, raises serious free speech issues.

It’s important to note that, in most cases, the government compelling a person to say something is just as constitutionally suspect as preventing them from saying something.

But in this case, the court did both: ordering the man to stop saying one thing (by taking down his post), and compelling him to say something against his will (by ordering him to write an apology).

I’m completely in favor of giving courts authority to issue protective orders designed to protect individuals from actual violence or harassment. However, this seems to be going too far. Regardless of whether or not this guy was a good husband, or even a good person, or what horrible things he said on Facebook, our right to freedom of speech is sacred, and the government cannot (and should not be able to) interfere with that right without an extremely compelling reason.

In this case, the ex-husband wrote something on his Facebook wall, which would only be visible to people who choose to associate with him on some level (they chose to be his Facebook friend, or take other action that allowed them to view what he writes), and the fact that the only person who might conceivably be harmed by his words (his wife) was actually blocked from viewing it, it’s pretty hard to argue that the court had a compelling reason to take the action that it did.

After all, there’s no indication that he threatened to harm his ex-wife, or intended to cause her emotional distress – or even intended for her to read the post.

I’m pretty sure that if this order is appealed, it would not hold up to scrutiny under a First Amendment analysis, and I don’t think it should. The test of our commitment to free speech is the extent to which we protect speech that is completely distasteful to the vast majority of the population. After all, when it comes to speech that doesn’t offend anyone, or with which nobody disagrees, constitutional protection isn’t needed. The whole point of the right to free speech is to protect speech that some people would want to censor.

Despite the fact that this guy’s conduct is probably protected by the First Amendment, I will concede that he probably shouldn’t have done it. And this case illustrates the fact that you shouldn’t say anything online that you wouldn’t be comfortable saying to everyone you know. This is especially true in situations where emotions can run high, such as during a contentious divorce.

Family lawyers have begun using electronic communications in text messages and on social networks as evidence in divorce and child custody cases.

While this speech may be protected by the First Amendment, and therefore not subject to criminal or civil penalties, it can often be used as evidence that can hurt a party’s case. For example, text messages have been used to prove that a husband was committing adultery, thereby voiding a prenuptial agreement. In a child custody dispute, a father whose drinking habit had raised concerns about his fitness as a parent testified that he had been sober for months. His testimony was very convincing, and he even got his AA sponsor to vouch for him. Then, he posted photos of himself on Facebook, which showed him drinking. As you might expect, he lost the case.

Just remember: the Constitution protects your right to say just about whatever you like, in whatever forum you like. It doesn’t protect you from the practical consequences of your speech, however.

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