42-year-old father of two, Anthony Morelli, is the author of a blog called The Psycho Ex-Wife. The blog, which receives 200,000 visitors a month, does not mention Morelli’s name, the name of his ex-wife, Allison Morelli, or either of their two children. Morelli’s ex-wife ran across the website while researching child support issues and deduced the posts, that mention the ex-wife being like “Jabba the Hut, with less personality,” were referring to her.
The Judge’s Order
Ms. Morelli brought the blog to the attention of Judge Diane Gibbons who, according to Mr. Morelli’s attorney, Kevin Handy, ordered the blog be taken down. According to the Press Release issued by Mr. Morelli’s law firm:
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.”
The Constitutional Rights at Issue
Handy asserts that the judge’s order violates both the First Amendment (Freedom of Speech) and Fourteenth Amendment (Due Process) to the United States Constitution. Nationally renowned First Amendment expert and UCLA law professor, Eugene Volokh, seems to agree. According to Volokh “That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts’ authority to protect children’s best interests might be, it can’t extend to criminalizing one adult’s public speech about another adult. I’m pleased that the order is being appealed, and hope it will be quickly reversed.”
Hard Cases Make Bad Law
It is an old adage, but never more true than in Mr. Morelli’s case. Hard cases make bad law. This refers to the tendency of judges to cross the line in situations where strict construction of the law goes against the aggrieved party. The problem is that if such arbitrary line-drawing is upheld on appeal, other judges will be forced to follow the same faulty logic in the future. Allowing judges to shut down entire blogs without appropriate Due Process or First Amendment considerations is not a precedent bloggers want to see upheld.
Even assuming that allowing Mr. Morelli to vent against his ex-wife would not be in his children’s best interest, that is no reason to take away his Constitutional right to free speech. If what Mr. Morelli posted to his blog is not true, his ex-wife is free to pursue an civil action for defamation. If what he wrote is true, or simply his opinion, then he should be allowed to include it in his blog. Allowing people to say hurtful things about their ex-wives is one of the prices we pay for living in a free society.
In her ruling, Judge Gibbons went beyond prohibiting speech about Ms. Morelli. She ordered the entire blog, much of which did not even reference Ms. Morelli, be shut down. This broad ruling limited not only Mr. Morelli’s freedom of speech, but the freedom of speech of the website’s growing community of contributors. A judge is free to say that Mr. Morelli should not post hurtful things to his blog, but to make it a crime is outrageous. If this ruling is upheld, expect to see a domino effect of judges shutting down blogs and enjoining bloggers from discussing certain topics online.
If you write a blog, or are just an earnest defenders of the First Amendment, you can donate to Mr. Morelli’s appeal here. I did, because “Monsieur [Morelli], je déteste ce que vous écrivez, mais je donnerai ma vie pour que vous puissiez continuer à écrire”