Blog Takes Failed Marriage Into Fight Over Free Speech
January 10, 2008
BOSTON — Normally, Garrido v. Krasnansky, a divorce case playing out in Vermont family court, would be of little interest to anyone but the couple involved. But the court has ordered the husband to stop posting blog items about his wife and their crumbled marriage, possibly turning an ordinary divorce into a much broader battle over free speech on the Internet.
The husband, William Krasnansky, posted what he calls a fictionalized account of the marriage on his blog late last year. His wife, Maria Garrido, complained to the judge overseeing their divorce, who ordered Mr. Krasnansky to take down “any and all Internet postings” about his wife and their marriage pending a hearing next month.
Mr. Krasnansky, 51, says the order amounts to a prior restraint, a rare restriction of speech before publication, and a violation of his constitutional right to free speech. His lawyer, Debra R. Schoenberg of Burlington, Vt., has asked Judge Thomas Devine of Washington County Family Court to vacate the order and dismiss Ms. Garrido’s motion for immediate relief.
The order has surprised some experts in First Amendment law, who say it constitutes a prior restraint and appears too broad to be constitutional, especially since no hearing or trial has been held.
The dispute also highlights some still-murky questions about free speech in the Internet era, particularly the extent to which someone can use a so-called gripe site to air grievances, even if they are labeled fiction.
“It’s a whole new area for the law to contend with,” said Rodney A. Smolla, dean of the law school at Washington and Lee University and a First Amendment scholar. “It’s a byproduct of the digital world meeting the ancient world of romance, and the law is struggling a lot to find the right balance.”
Mr. Krasnansky, a former software engineer, said that he and Ms. Garrido, 38, were married a decade ago and that she filed for divorce in 2006 after they moved from San Francisco to northern Vermont.
In court filings, Ms. Garrido’s lawyer, Susan M. Ellwood of Montpelier, Vt., described Mr. Krasnansky’s blog postings as “inaccurate, derogatory, defamatory and inappropriate.”
Ms. Ellwood says that the blog, at lookatmypugs.livejournal.com, constitutes harassment, and that it is typical in divorce cases for judges to bar harassment by either party.
But Ms. Schoenberg has countered that a defamation claim does not belong in family court — Mr. Smolla and several other scholars said the usual venue was civil court — and that, regardless, her client’s freedom of speech trumps his wife’s concerns.
“Her feelings are hurt,” Ms. Schoenberg said of Ms. Garrido. “But we can’t put the need for her feelings not to be hurt above Will’s constitutional right to express himself in any way he sees fit.”
But the case may not be so simple.
Erwin Chemerinsky, a law professor at Duke University, said that in the past, courts could not enjoin speech in the context that Judge Devine has and that a defamation suit would have to come first. If the statements were found to be false, Professor Chemerinsky said, damages, not an injunction, would be the typical remedy.
“But increasingly,” he said, “courts are issuing injunctions to stop negative speech. The Supreme Court hasn’t yet ruled as to whether you could have an injunction in a situation like this, or more generally, in a case of defamatory speech.”
The Supreme Court broached a similar subject in 2005, ruling on an appeal from a man who was barred by a California state court from continuing to picket outside the Los Angeles law office of Johnnie L. Cochran Jr. as well as from “orally uttering statements” about Mr. Cochran “in any public forum.” Mr. Cochran had filed a defamation suit against the man, who was represented by Professor Chemerinsky.
The court ruled that the order was an overly broad prior restraint on speech, but the case went no further because Mr. Cochran had died months earlier.
Ms. Schoenberg said the fact that Mr. Krasnansky had labeled his blog entries as fiction provided “an extra layer of distance” in the case. But Professor Chemerinsky said that might not protect Mr. Krasnansky in a defamation suit, especially if the court found that readers were likely to perceive the postings as factual statements about a real person and if the statements were false.
“The fact that it’s fiction doesn’t excuse the speech if it can be recognized to be about a certain person,” Professor Chemerinsky said.
For now, with the dispute playing out as part of a divorce case in family court, Judge Devine’s order barring Mr. Krasnansky from putting anything online about his wife or their marriage is likely “too broad to be constitutional,” Mr. Smolla said.
On the other hand, he said, Ms. Garrido probably has a good case regarding another issue in the dispute — her claim that Mr. Krasnansky put excerpts from her old journals on the blog.
“That puts her in a strong position to claim both an invasion of her privacy and a violation of her copyright,” Mr. Smolla said. “A narrow order that prohibited the publication of those specific passages would have a stronger chance of being upheld under First Amendment law.”
Judge Devine declined to comment, as did Ms. Garrido, through her lawyer. The court is awaiting a response from Ms. Ellwood, due Monday, before ruling on Ms. Schoenberg’s motions and possibly moving up the hearing date.
Despite the order, issued Dec. 7, Mr. Krasnansky has refused to take down his blog, calling it “a deliberate act of civil disobedience.” He said his motives for posting the blog were irrelevant.
“I can’t cite case law,” he said, “but I can tell you absolutely this is an egregious breach of the First Amendment.”