Wednesday, January 9, 2019
Opinion Says Dissemination of Embarrassing Information Is Subject To Restraining Order Under Domestic Violence Prevention Act
By a MetNews Staff Writer
The First District Court of Appeal has held that a woman can be barred, pursuant to the Domestic Violence Prevention Act, from posting on the Internet humiliating information concerning her ex-husband, rejecting her contention that the order constitutes an unconstitutional prior restraint.
Writing for Div. Two, Justice Marla J. Miller said in an unpublished opinion, filed Monday, that the restraining order that was imposed only incidentally affects the woman’s speech rights.
The ex-husband, Derek Edward Jensen Sr., filed his request in the San Francisco Superior Court on May 23, 2017. He checked a box on a Judicial Council form asking that his former wife, Cherry Canlas, be ordered not to “harass” him and also asked, in language he drafted, that she be barred from posting any information about him on the Internet or making reference to the content of his emails to which she had gained access.
Judge Daniel Flores on June 21, 2017, issued a five-year order declaring that Canlas was “prohibited from doing anything that would harass” Jensen and also authorized him to record any communications from his ex-wife that breached the order.
There was no explicit reference to use of the Internet by Canlas in effecting harassment, but the conduct underlying Jensen’s request was references to him—although not by name—on Facebook.
Additional relief sought by Jensen was denied. Canlas appealed.
Although Jensen had litigated in the Superior Court under his true name, his lawyer asked Div. Two to suppress the identities of the parties. By an order of April 20, 2018, it agreed to do so.
Affirming Flores’s order, Miller said:
“C.C. contends that the trial court erred in issuing an order that was intended to prevent her from exercising her free speech rights and that represents an unconstitutional prior restraint of her free speech rights. We disagree with her characterization of the trial court’s order.
“The trial court’s order, which prevents C.C. from harassing D.J., was not aimed at C.C.’s speech: it was aimed at her abusive and harassing conduct, as found by the court after a hearing, and only incidentally affected her speech. Furthermore, the trial court explicitly declined to order the broad constraints on C.C.’s speech that D.J. requested, which would have prevented C.C. from making any use at all of information she gleaned from his emails, and from making any reference to him on the Internet. Thus, the very relief that C.C. claims would be problematic was not ordered by the court: the trial court did not prohibit C.C. from posting on Facebook or elsewhere, or prevent her from talking to her friends, or seeking counseling, or joining an online support group, or hinder her ability to recover some undisclosed asset. The trial court was explicit that its order did not prevent C.C. from talking about D.J., so long as she did it in a way that did not harass him. As the trial court explained, C.C. had no right to use her free speech rights in an abusive fashion, which the court found she had done.”
Lack of Specificity
Canlas protested that order prohibiting harassment lacks requisite specificity as to what sort of postings are forbidden. Miller responded:
“We disagree. The trial court explained: ‘I’m declining to make orders that are going to somehow specifically try to capture what type of harassment [C.C.] might do in the future. I believe one is vague and impossible to do that at this time prospectively.’ C.C. cites no authority to suggest that the court should have attempted to predict the types of harassing behavior in which C.C. might engage.”
The case is D.J. v. C.C., A151996.
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