It has been a long standing belief in family law: parents should not subject their kids to rants about a custody battle.
Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their parents.
However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain. It is particularly interesting given the new era of social media communication we live with today.
The case is Molinaro v. Molinaro 19 DJDAR 2709 (2-26-19) (DCA 2), certified for publication on March 28, 2019.
In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA). The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog. A real charmer.
Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’ He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.
Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.” She testified, “He says that I am crazy and having hallucinations.”
Court orders parties not to post on Facebook about their case
To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”
Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ” In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”
Mr. Molinaro appealed the trial court’s order.
Facebook posts considered to be “free speech” per the court ruling
The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.
The court held:
“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”
The court further argued:
“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests. The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test. We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”
So, to sum it up, Mr. Molinaro is still a jerk. But he can talk about it on Facebook.