Pennsylvania Family Court Orders Father To Delete Blog Critical Of Ex-Wife

Does a family court have the authority to tell a parent to delete a blog critical of his ex-wife?

An interesting case out of the Philadelphia suburbs that involves an intersection between the First Amendment and Court authority in Family Law case:

A Doylestown Township man is claiming a Bucks County judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle.

Anthony Morelli, 42, complied last month with the order handed down by Family Court Judge Diane Gibbons. He then hired Doylestown attorney Kevin Handy to appeal the ruling to the Pennsylvania Superior Court, citing violation of his First and 14th Amendment rights.

Gibbons, who through her staff declined to comment on the open matter before the court, made her ruling in an effort to protect the two children of Anthony and Allison Morelli, according to her statements in transcripts of court proceedings. In doing so, she made it clear that violation of the no-blog ruling could jeopardize Morelli’s standing in the custody case.

Court records show Gibbons told Anthony Morelli and his girlfriend, Misty Weaver-Ostinato, who created the website, are wrong if they believe the order infringed on their free speech.

“This is about children,” said the judge during a June 14 hearing. “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive.”

“In my view, the judge crossed the legal line, from determining custody to controlling (Morelli’s) behavior. My client’s actions are protected by the First Amendment,” said Handy.

He pointed to the recent U.S. Supreme Court ruling striking down a California ban on the sale of violent video games to minors. That decision, said the attorney, reaffirmed the principle that the government can’t restrict otherwise constitutionally protected speech for the “ostensible purpose of protecting children.”

Morelli and Ostinato also claim Gibbons violated their 14th Amendment rights when she ordered the site taken down without allowing evidence, or the opportunity to argue or object, said Handy.

Anthony Morelli has found other support among First Amendment scholars as well as an online community that has used the website to post comments about their own divorce and custody experiences.

The site in question is presently down and redirects to a site dedicated to the claimed First Amendment violations of the judge’s order, but it’s fiarly easy to figure out what the content was like:

Anthony Morelli and Misty Weaver-Ostinato started The Psycho Ex-Wife (www.thepsychoexwife.com) on Dec. 21, 2007. Weaver-Ostinato wrote the first post.

In a Dec. 22, 2007, post called “Cast of Main Characters,” Morelli and Weaver-Ostinato identified Morelli’s ex-wife as “PEW = Psycho Ex Wife.”

They made psychological evaluations of and criminal allegations against her family. They identified the judge (presumably Gibbons) as “JC = Judge Contempt,” claiming she “has found PEW in contempt more times than not.” The post — the first on the blog to get comments — got 88 comments, mostly from people praising the blog and commiserating.

The post was followed a few days later by a post called “About the Psycho Ex-Wife.” That post, which got 228 comments, could be read as the site’s manifesto: “We are NOT anti-mother or simply pro-father, we believe all children deserve BOTH parents, unless there are serious issues which prevent one parent from providing a stable, loving environment. An environment where the children are encouraged to love and be loved by both parents.

“We offer a view few judges will ever see. For attorneys, custody evaluators, guardians ad-litem, and judges, a custody case ends with their decision. They make a ruling and walk away with nary a care as to how clients can, and do, go against the orders they have handed down.”

Morelli and Weaver Ostinato wrote hundreds of blog posts in the four years that followed. Most of the posts outlined their personal struggles with divorce and custody proceedings.

The potential First Amendment issues here are fairly easy to see. Morelli started a blog dedicated to his frustrations with the divorce and child custody battles that he was going through. That in itself isn’t unusual as I am aware of several small blogs here in Virginia that are decidated to nothing more than venting by ex-husbands or ex-wives about the perceived injustices they have suffered at the hands of Virginia’s Domestic Relations laws. Most of the time, these complaints are meritless rants, but that doesn’t mean that they are not protected by the First Amendment. If someone feels that they’ve been treated badly by a Judge, they ought to have every right to express those opinions.

This is what makes the judge’s ruling troubling. As noted in the highlighted text above, it appears that a good portion of the posts on the blog over the past four years have been directed toward frustration at the judicial system rather than rants against the ex-wife. That would clearly seem to be protected speech.

There is, however, another consideration.

A common part of every custody agreement and custody order that I’ve ever seen is a provision that provides that neither parent will talk in a disaparaging manner about the former spouse in front of the child(ren). This is something that courts generally insist upon, believing it to be in the best interests of the child(ren) that they be permitted to maintain a good relationship with both parents despite the fact that the family unit has been split apart. This isn’t always an easy provision of a Court Order to enforce, of course, because determining what is said behind closed doors is difficult. In this case, the judge apparently believed that the blog was so disparaging of the child(ren)’s mother that there was no alternative other than to order that it be taken down.

A few issues come to mind here.

First of all, one wonders why the judge couldn’t have simply ordered Morelli to delete all the blog posts that were critical of the ex-wife and to post no further such material in the future. This would certainly seem to be a far less intrusive solution to the problem. Now, it’s entirely possible that even the blog posts that complained about the court were so replete with insults directed against the ex-wife that it was impossible for the judge to do this, that’s something we cannot know without having access to the original blog posts.

Second, one wonders why courts in custody cases should have any right at all to restrict parental speech, either with their children or with the rest of the world about matters that the court thinks the children shouldn’t be subjected to. Eugene Volokh has written several pieces about this subject over the years, including a lengthy article in the New York University Law Review (PDF) that covers the issue, and how it has been dealt with by the courts, extensively. In a 2007 post at The Volokh Conspiracy, Professor Volokh rejected all of the common arguments made in favor of a courts authority to restrict parental speech, and made this point:

In intact families, both parents have the right to teach their children what each of them pleases. But in split families, one parent may want to stop the other parent from, for instance, teaching a child a religion or political ideology that differs from what the first parent is teaching. The parent may argue — as one New Jersey appellate court actually held — that “[i]t is implicit in protecting the primary caretaker’s right to raise and educate his children in his chosen religion to prevent others from simultaneously educating the same children in an alternate religion.”

Yet while many parents sincerely want to stop the other parent from teaching the child certain views, it’s hard to see why this desire should be given the force of law. When two people have a child together, each must reasonably expect that the child will be exposed to the other’s teachings, including teachings that might change over time. There’s no reason why the breakup should increase one parent’s control rights relative to what they were before the breakup, and thus decrease the other parent’s speech rights.

It’s worth noting that most of the case law in this area deals with issues such as religion, or parents who desire to teach their children a certain viewpoint about issues like homosexuality, so it’s possible that one could make a distinction for First Amendment purposes in the case of speech that was purely disparaging of the child(ren)’s  other parent. However, in 2005 Volokh made note of a case in Louisiana where a father had been held in contempt for using a racial slur in reference to his child’s stepfather in front of them, and stated the following:

It seems to me that the order is unconstitutionally broad and viewpoint-based. Even if it were constitutional to bar the father from saying anything derogatory about the child’s stepfather, I don’t think a court may enter an order that (1) goes far beyond protecting the child’s relationship with his new family, and that (2) focuses only on statements that express a racist ideology.

I agree, by the way, that teaching a child racist ideology (or various other kinds of ideologies) is against the child’s best interests, which is the standard legal test in child custody cases. It just seems to me that the First Amendment limits the extent to which the government may restrict parent-child speech even when the government is trying to serve the child’s best interest.

It strikes me that we may have a similar situation here. Rather than simply addressing the father’s past and future derogatory comments about the mother (assuming that the Court even has a right to restrict those, which isn’t clear), the Court ordered the entire blog taken down. That strikes me as a bridge too far.

 

FILED UNDER: Blogosphere, Law and the Courts, US Politics, , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. “This is about children,” said the judge during a June 14 hearing.

    I stopped reasing as soon as I got to this line, at which point I decided the judge was wrong.




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  2. James Joyner says:

    I generally think judges, and especially family law judges, simply have far too much discretionary power. Because our system combines law and equity in the same body, judges have damned near carte blanche to do what they think is “right” and “just.”

    That said, it strikes me as reasonable to tell someone seeking custody of his children that posting defamatory material about the mother of his children in a public forum will have negative bearing on the outcome of said proceedings. It’s obviously poisonous to the atmosphere that his children will live in, both in terms of their relationship with their parents but also with respect to the likely taunting from schoolmates and whatnot that will ensue.




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  3. Franklin says:

    I thought the First Amendment mentioned Congress. It doesn’t say jack squat about judges. Or am I extraordinarily naive in legal matters?

    For example, gag orders are pretty common.




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  4. Dave Schuler says:

    James hit the point I was going to make: the court’s equity powers are nearly limitless. The question is whether the court decided the case rightly on the merits. If it did, then the remedy is certainly within its powers.




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  5. ddennis says:

    @Franklin:

    The “Congress shall make no law” statement implies specifically the federal government, and, more broadly, government in general. Because government has the force of arms through its military and police forces, the “. . . make no law . . .” provision is a guarantee of protection from government forcible infringement on basic citizen rights. I’m sure if you read State constitutions, this “make no law” infringing on basic rights can be found.

    The judge clearly violated the 1st Amendment rights of Morelli & Weaver-Ostinato; however, I don’t think it’s irremedial, and she can always walk it back to reasonable limits to protect the children’s interests.




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  6. Nightrider says:

    @Franklin: This involves a state court, not the federal government. It is the 14th Amendment that precludes states from infringing on 1st amendment rights. The 14th amendment would apply equally to state legislatures or courts.




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  7. Dr. Winston says:

    At the end of the day, the party you have to question is the father. Anthony Morelli has repeatedly exercised bad judgment.

    First in posting personal and inflammatory comments about the exwife in a place where his children, their friends, and their parents can read them. This looks and feels like Parental Alienation at the very least.

    And secondly by taking on the judge in the media with a “Freedom of Speech” during a custody evaluation. He could have quietly and respectfully resolved this matter with the judge without doing a national media blitz and posting letters and transcripts online. Clearly his ego is in drive on this.

    It is self sabotaging behavior at the very least and in the end the two young boys that have been a party to this battle for seven years will suffer more. They already are exhibiting behavioral problems after spending more than half of their lives (seven years) in this war zone.

    Morelli will likely prevail and get the website back up – but at what cost?

    The judge will see him as a less fit parent. The exwife will be further inflamed and polarized. The identification of the family and the children, which heretofore was anonymous, is now widely known. And at some future time, the children will realize that dad’s grandstanding was far more important to them than they were.

    Anthony Morelli will take pride in this win. He will be right. Dead right.




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  8. Dr. Winston says:

    At the end of the day, the party you have to question is the father. Anthony Morelli has repeatedly exercised bad judgment.

    First in posting personal and inflammatory comments about the exwife in a place where his children, their friends, and their parents can read them. This looks and feels like parental alienation.

    And secondly by taking on the judge in the media with a “Freedom of Speech” suit during a custody evaluation. He could have quietly and respectfully resolved this matter with the judge without doing a national media blitz and posting letters and transcripts online. Clearly his ego is ahead of his common sense.

    It is self sabotaging behavior at the very least and in the end the two young boys that have been a party to this battle for seven years will suffer more. They already are exhibiting behavioral problems after spending more than half of their lives (seven years) in this war zone.

    Morelli will likely prevail and get the website back up – but at what cost?

    The judge will see him as a less fit parent. The exwife will be further inflamed and polarized. The identification of the family and the children, which heretofore was anonymous, is now widely known. And at some future time, the children will realize that dad’s grandstanding was far more important to them than they were.

    Anthony Morelli will take pride in this win. He will be right. Dead right.

    Ironically, Morelli fashions himself a divorce and custody expert and sells coaching services to others in high conflict divorces under the trade name of “Mr. Custody Coach”. Incredible.




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  9. Useful says:

    Dr. Winston is correct in recognizing parental alienation — he just has the wrong parent.

    The “inflammatory comments” displayed at thepsychoexwife-dot-com were written by Allison Morelli, not Anthony. If Allison Morelli had not written volumes of hateful and derogatory emails, Anthony would have had no content. It was Allison Morelli — not Anthony — who recognized her own abusive and vulgar behavior, and identified herself on the site. It was Allison Morelli — not Anthony — who made it a point to repeatedly show the website to her sons, in an attempt to denigrate her ex-husband further.

    Less than 1/3 of the posts on the site featured Anthony’s specific situation. And in the majority of these, Anthony’s main point was “I responded poorly, this approach didn’t work, don’t do this like I did.” His early responses to Allison were clearly incendiary, and he used them as examples of what a person involved with a high-conflict ex should NOT do. The website became a valuable resource to others who were in similar post-divorce situations. Many of these others also wrote of their travails, and asked for collective guidance from the other contributors on the site regarding conflict reduction. And, in spite of the gender-specific name, a great number of participants were women dealing with high-conflict ex-husbands as well.

    Another substantial portion of the site consisted of guest posts, addressing such general topics as how to parent in post-divorce situations, how to maintain peace during exchanges, how to shield children from conflict. I personally contributed a number of guest posts, including tips from my own post-divorce journey, as well as reviews of books that I have found helpful.

    I think it’s very important in this discussion to characterize both the blog, as well as the behavior of the principles involved, with accuracy. It is not accurate to characterize the blog as “critical” when the majority of the posts were of a general, helpful nature. It is not accurate to characterize Anthony’s behavior as alienating, when he carefully anonymized all personal content. And, it is not accurate to characterize Allison as the object of hatefulness, when she in fact is the author of the hatefulness, and the perpetrator of the alienation and abuse.

    And, it is absolutely not accurate for Judge Gibbons to twist the definition of “abuse” so that it fits a man who did everything in his power to shield his children from their mother’s drunken alcoholic rages; but it somehow does not fit a woman who kicked her own children out of her home on Mothers Day and told them she was “through” with them.

    It’s a First Amendment issue when we scale out to see which of our own speech could be curtailed. More importantly, let’s not shoot the messenger. Does anyone think the Morelli boys are surprised to read about their mother’s alcoholism on the Internet? How could they be? They LIVE WITH IT.




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  10. Dr. Winston says:

    I assume from the context of your post, that you are Misty Weaver-Ostinato, Anthony Morrelli’s girlfriend and co-owner of the blog in question.

    Hello to the both of you.

    I know you fashion yourselves as experts in the field of high conflict divorce and I am going to suggest that it is hard to be an objective council to others when you are so emotionally ensnared in a conflict yourself.

    Dr. Warshak, an expert in parental alienation teaches that if you inappropriately handle the situation of the other parent badmouthing you you could lose your children’s respect, their affections — even, in extreme cases, contact with them. Dr. Warshak reveals how and why parents manipulate their children, and outlines seven rules for responding effectively to bad-mouthing without succumbing to the impulse to retaliate in kind.

    So whether Mr. Morelli started the alienation or Ms. Morelli started it, neither action justifies operating a vindictive and humiliating website in clear view of the community.

    Misty, I read the site today for the first time and it is appalling. I was actually surprised to see the website was up and viewable after Mr.Morelli agreed to take it down.

    On this page you clearly are trying to humiliate Ms. Morelli. thepsychoexwife.com/category/pas/ I really don’t see a point to this discussion other than to make her look bad to her children and the community. There is no “lesson” being taught to your members – no helpful tips to be learned – just the poison.

    We can rationalize your actions endlessly based on the other party, and it seems that you have. But no matter how anyone justifies it, it is a smear campaign that is hurting the children and your relationship with them. And when they ask responsible adults in their lives if it’s OK, like a Pastor, or a teacher, or a therapist, they will be told that it is not OK.

    I imagine you will feel some level of vindication if the judge has to reverse her decision on this. Please don’t take that as a sign that anyone endorses what you are doing. Most of the professional comments I have read on this case have not be at all supportive.

    I understand that it is great entertainment to do this. And many people go through an anger stage for a few weeks or even months. But. I see that this goes all the way back to 2007. That’s a long time.

    You may want to reevaluate this with a professional. The boys will be coming of age soon. Maybe explore alternate releases.




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  11. Westcoaster says:

    All I can say is that never in my life would I have agreed with a website called ThePsychoExWife.com.

    Until I ended up falling in love with a man, whose wife is either psycho or one of the most wicked people in the world.

    As a mother I understand the vitrol that one can feel when CPS shows up on the doorstep, asking to see your children because your husband’s ex wife claims your child has been beaten by his step father. Imagine, if you will, having your small child be forced to go to the hospital and be forced to be examined THREE times over the next weeks for sexual and physical abuse. All because a determined hateful ex spouse will try anything to get your husband arrested. My child, my poor child, was confused, crying, didn’t understand. He had his blood drawn, while screaming, and I’m holding him down because I have to!

    No one understands what a hateful person can do to their own children, much less a child that isn’t even their own, on their path towards what they feel is “right.”

    It’s awful, it’s heartbreaking, and it makes you want to cry and scream right along with your child. If that means you say the F word on an anonymous website, than fine. Thumbs up to me! If anyone outside of this experience would have gone through half of what me and my family have gone through, what the Morelli’s have gone through, what thousands of families around the WORLD have gone through. You would understand. Trust me.




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