July 12 2011

Cooley & Handy challenges order requiring father to take down website.

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Divorced Father Challenges Judge's Order Forcing him to Take Down Anonymous Website and Blog About his Ex-Wife and Divorce on First Amendment Grounds.

Divorced Father Claims that Bucks County, Pennsylvania Judge's Order Requiring him to Take Down a Website called "thepsychoexwife.com" and Prohibiting him from Ever Mentioning his Ex-Wife or Children on any Public Media in the Future is an Unconstitutional and Unenforceable Restraint on Free Speech.

Doylestown, PA (July 11, 2011) – A divorced father is challenging an order entered by a judge in Bucks County, Pennsylvania requiring him to take down a website on which he writes about his ex-wife, his divorce and his custody case. Although the website has the unflattering name domain name "thepychoexwife.com," all of father's posts to the website about his ex-wife and his cases are anonymous. According to the father, his ex-wife discovered the website accidentally while researching child support issues involving orthodontic treatment on the Internet and the website appeared high in the search rankings. The ex-wife apparently recognized the content of some of her e-mails, which were posted in a redacted format on the website. Shortly thereafter, the ex-wife asked the court to order the website shut down.

Despite the website's name, the content of the website is not limited to the divorced father's posts about his ex-wife and divorce. The website, which is actually owned and controlled by father's girlfriend, also includes a significant amount of other materials, including discussion forums and resources aimed at helping individuals cope with the difficult issues that arise in divorce and custody cases. According to the divorced father, the website receives over two hundred thousand visitors per month.

Although the website initially started out as a way for father to vent about his divorce and ex-wife, it quickly transformed into a community forum intended to help others going through similarly difficult and emotionally challenging divorces and custody cases. According to the father:

The site is intended to help people in similar situations. I always felt like no one really knew or quite understood the level of chaos that existed in my life, and the website was a way to express it without burdening others with such horror or having to explain and re-explain myself. I felt that it was a way for me to tell the truth of my experiences but to no one in particular.

That is why I started posting to the site in January of 2008. Soon thereafter, I started getting an incredible amount of feedback from people going through similar situations that felt as isolated as I did. That is when the site took on a more meaningful purpose, letting others know that they are not alone in their difficulties. I pray that realization prevents them from feeling trapped like I did. At the time, I felt that I had nowhere to turn. Had I discovered a place like this a long time ago, I may have been compelled to make better choices earlier in my relationship and case. Maybe I would have been more honest with myself and with others about what I was going through and gotten help and guidance sooner for my children and myself.

Despite the website's apparent popularity and inclusion of unrelated content, a judge and former district attorney in Bucks County, Pennsylvania summarily ordered it shut down on June 6, 2011 without a hearing or testimony. The specific language of the order, entered by the Hon. Diane E. Gibbons states that "Father shall take down that website and shall never on any public media make any reference to mother at all, nor any reference to the relationship between mother and children, nor shall he make any reference to his children other than 'happy birthday' or other significant events."

Father and his girlfriend have appealed the judge's order to the Superior Court of Pennsylvania claiming that the judge's order violates the rights guaranteed them under the First and Fourteenth Amendments to the United States Constitution.

"The judge's order is a classic example of an overly broad and unenforceable prior restraint on free speech" according to the father's attorney, Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy. "The order is constitutionally over broad because it clearly prohibits speech that is protected by the First Amendment."

Although the precise reasoning behind the judge's order is unclear, the judge presumably issued the order in an attempt to shield the parties' children from father's complaints about his ex-wife. There was no evidence presented at the hearing, however, that the children had even seen the website, let alone were harmed by it.

"Even assuming that the court could shield the children from exposure to father's comments on the website in a constitutionally acceptable manner, which is big assumption, there are many less drastic ways for the court to accomplish that goal without shutting down an entire website. For example, the court could have simply ordered ex-wife to monitor her children's Internet usage." according to Mr. Handy. "In the context of the First Amendment, the Supreme Court requires the Government to 'narrowly tailor" orders restricting speech. The court cannot use an axe where a scalpel will due."

Father also claims that he never intended for his children to read his posts and that they were directed at other adults going through similar situations.

Mr. Handy points out that the order was issued just in advance the U.S. Supreme Court's June 27, 2011 decision in Brown v. Entertainment Merchants Association, in which the Court, in striking down California's ban on the sale of violent video games to minors, reaffirmed the principle that the Government may not restrict otherwise constitutionally protected speech for the ostensible purpose of protecting children.

"Time and time again," Mr. Handy notes, "the Supreme Court has reiterated that courts and the Government may not reduce the adult population to only what is fit for children."

Judges in custody cases often enter orders that purport to restrict what one or both parents may say to each other or around their children. Those provisions, however, are rarely challenged or enforced. In the past, complaints by spouses about their exes were generally limited to conversations with family and friends. The Internet and the ability to post negative comments about ex-spouses indefinitely on social media such as Facebook, Twitter or personal blogs, however, has increased awareness of the issue and the perceived problem.

In 2008, a judge in Vermont in a comparable case ordered a man to take down "any and all Internet postings" about his ex-wife. The judge, however, subsequently reversed himself after the man raised similar First Amendment issues. The case was Garrido v. Kranansky.

"Individuals involved in divorces or custody disputes have no less constitutional rights than other individuals," claims Mr. Handy. "A judge may no more restrict a parent's right to free speech that she subjectively finds objectionable than the government can for any other group or individual."

Cooley & Handy represents individuals in personal injury, class action, divorce, custody, and other litigation in Bucks, Montgomery and Philadelphia Counties and throughout Pennsylvania.

© 7/12/11 Cooley & Handy

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