Thursday, February 28, 2019
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Court of Appeal:
Order Against Postings on Divorce Case Was Unconstitutional
Los Angeles Superior Court Judge Amy M. Pellman Found to Have Violated First Amendment Rights Of Attorney/Litigant in Prohibiting Any Discussion by Him on Facebook of the Legal Proceedings
By a MetNews Staff Writer
The Court of Appeal for this district has reversed a domestic violence restraining order imposed on an Encino lawyer to the extent that it prohibits him from posting anything about his divorce case on Facebook.
That portion of the order, Justice Anne H. Egerton of Div. Three said in an unpublished opinion filed Tuesday, “is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”
The three-year order was issued on Feb. 15, 2017, by Los Angeles Superior Court Judge Amy M. Pellman. It restrains attorney Michael M. Molinaro, the respondent in a dissolution of marriage action brought by Bertha Alicia Molinaro.
“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order,” Egerton wrote, “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..”
Supreme Court Decision
The jurist cited the U.S. Supreme Court’s 1976 decision in Nebraska Press Assn. v. Stuart in which the high court invalidated a gag order imposed directly on the press in connection with reports on the trial in a murder case. That opinion declared “that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”
Egerton continued:
“Orders enjoining the right to speak on a particular topic are disfavored and presumptively invalid….However, courts have recognized a prior restraint may be permissible under certain limited circumstances….
“To establish a valid prior restraint under the federal Constitution, a proponent has the heavy burden to show the countervailing interest is compelling, the prior restraint is necessary and would be effective in promoting this interest, and less extreme measures are unavailable.”
Pellman’s order, she said, does not meet that burden.
Concern for Minors
Egerton expressed an understanding of the trial court’s concern that the parties’ minor children, then 13 and 17, be shielded from information about the divorce proceedings, but said:
“The record shows Michael’s Facebook posts were not specifically directed to the minor children, but in many cases invited comments from Michael’s adult friends and extended family, some of whom urged him not to dwell on the divorce, while others suggested he seek legal representation.”
She said that while Pellman “plainly had the power to prohibit Michael from disparaging Bertha in the children’s presence,” the order that was issued was far broader than that, barring utterances that were only tangentially related to the case.
The opinion affirms all other aspects of the order, including the requirements that Michael Molinaro stay 100 yards from the family home, have monitored visits with the children in “a neutral setting,” and that he attend anger management classes.
Abusive Conduct
Egerton recited testimony as to abusive conduct by the lawyer, including using his car, in separate incidents, to block the front door of the family residence, to prevent his wife from exiting the carport, and to prevent a truck from removing his wife’s personal property. She also told of testimony of his threatening to kill the family dogs and becoming so “belligerent” during a quarrel with his wife that police had to restrain him.
When Pellman asked the respondent on Feb. 15, 2017, if he understood the orders, he declared, according to Egerton:
“No, I don’t. I think you’re insane. I don’t understand a word you are saying. It lacks reason, Your Honor. There was no evidentiary foundation for your order.”
He is quoted as telling Los Angeles Superior Court Judge Thomas Trent Lewis at an earlier hearing—on Jan. 26, 2017—that he questioned “the sanity” of his order.
That order included the prototype of the provision on Pellman’s order that drew the reversal. It declared:
“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 case is Molinaro v. Molinaro, B282014.
Michael Molinaro represented himself on appeal; Encino lawyer Lauren Longeretta acted for Bertha Molinaro.
Michael Molinaro spurned a request to comment on the portion of the opinion that reversed Pellman’s order, saying:
“The portion of today’s opinion reversing the prior restraint was meaningless to me personally. I do not find it newsworthy, or remotely important to my life or my family’s best interests, and commenting only on it seems to be focusing on the trivial and obvious, while ignoring the crucial and essential matters.”
He said Egerton’s opinion “focused a comparatively trivial first amendment right (to post on Facebook) ignoring free speech rights in the fundamental rights area of a parent’s fundamental interest in communicating with that parent’s children.”
The lawyer provided a discourse, largely on aspects of the case not addressed in the opinion and on an unrelated case in which he is seeking amicus curiae status.
Copyright 2019, Metropolitan News Company