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Order barring Facebook posts by ex-husband is unconstitutional

The advent of social media has added a new dimension to divorces in California and elsewhere. Some angry ex-spouses have used platforms such as Facebook and Twitter to post harshly critical comments about the other party to the divorce. Courts have been crafting remedies to limit harmful comments without improperly limiting the First Amendment rights of ex-spouse who is doing the posting. The California Court of Appeals recently issued a ruling that reversed the order of the trial court that barred all use of Facebook by the ex-husband because the prohibition was unconstitutionally broad.

The case arose from a domestic violence restraining order issued by a Los Angeles Superior Court judge against a lawyer from Encino. The order applied to both parties, and it said "Neither party is to discuss any aspect of the case with the minor children until further order of the court―including Facebook postings [about the] subject case matter."

The court of appeals found sufficient evidence to affirm that portion of the order preventing physical and verbal abuse, but it found that portion of the order that applied to the use of Facebook to be "overbroad, constituting an invalid prior restraint" on the husband's right of free speech. The court of appeals observed that the record showed that the husband's Facebook posts were not directed specifically at the children but were intended for friends and extended family. In another portion of its opinion that may have significance for other uses of social media, the appellate court noted that "Orders enjoining the right to speak on a particular topic are disfavored and presumptively invalid. . . ."

The effect of this ruling on other cases cannot be predicted until more such cases reach the appellate level. However, individuals going through a divorce may want to know how their actions and decisions can affect their divorce proceedings and it might be beneficial speaking to an experienced attorney.

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