Do you have a First Amendment right to disparage your ex online?
Maybe. I'm no First Amendment lawyer. A better question might be: should you be disparaging your ex-wife online during the divorce, while also fighting for custody?
That's the question posed by The Psycho Ex-Wife Blog. Here's the background:
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. ... [The Judge] Gibbons... 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.”
(Source.) Morelli's defenders are claiming the First Amendment protects his right to say what he wants, and comparing him with that recent U.S. Supreme Court case that said it's okay to let kids shoot people (electronically) but not to talk to them about sex. And they've even started a site to help raise money to fight the claim. I won't link to that, because I don't support them.
Saying this is about First Amendment rights is fighting the wrong battle -- again, I'm no First Amendment scholar, but I am a family law lawyer (sometimes) and what's at stake is not the right to speak, but rather Morelli's behavior vis a vis his ex-wife and kids. The kids are aware of the site, the article notes, so they know that Morelli claims his ex is "psycho." (There's no word on whether the kids have read the site.)
You expect a certain amount of animosity in divorce cases -- and kids can handle it. Kids need to learn that not everyone gets along, and I've never been one of those people who expects divorcing spouses to even be nice to each other (I tell my clients to be professional, and to refrain from doing or saying mean things, but never counsel them to be nice.)
A person who goes beyond that risks interfering with the other parent's relationship. I'm not a believer in parental alienation syndrome, either, for a variety of reasons -- but you can affect how kids view the other parent, and parents have an obligation, in Wisconsin, to support the children's relationship with the other parent.
How far that goes is an open question -- but in this case, the judge made references in her interim order (it's not a final order at all; the results of competing petitions are not yet decided) to Morelli's girlfriend being called mom and it also appeared from the hearing transcript that Morelli had encouraged his kids to come do something with him on Mother's Day, which two facts alone suggest that he's actively working to undermine their relationship with Mom.
None of those details appear in the story about Morelli and his free-speech-advocating blog; just as no actual posts from the blog appear in those stories.
But I know something that some of those people don't. I know about The Wayback Machine, which has preserved 25 posts from www.thepsychoexwife.com, and I checked them out. Here's what people paying to defend psychoexwife.com are supporting:
From January 4, 2008: Morelli accuses his ex of having "BPD" (bipolar disorder?) and the maturity of a 10-year-old, suggests that she use more board games and less computer games, posts the entire text of an email he sent (but not her emails) and finishes one post with this bon mot:
The bigger issue is, they spend so much time with her and her family of dysfunctional fucktards that I have a hard time believing that they will not grow up with some sort of "interpersonal relationship" problems, if not worse.That post continues with topics like "Child Support? Or state windfall?" ("Child Support. These are two of the ugliest words in our language.")
Then there's this: "I decide to break no/low-contact in order to make sure she's clear my position on the order," about which I'd say, Morelli may have a First Amendment right to write about violating a no contact order, but the First Amendment doesn't grant the right to actually violate the order.
Here's a screencap of what the site looked like before it was championed by First Amendmentists:
And here's Morelli's description, under "Characters" of his ex-wife:
PEW = Psycho Ex-Wife, She’s on the precipice of 40 and probably looks all 50-years of it. Imagine if you will, Jabba The Hut, with less personality. She spends her time with her bipolar sister (PP, see below) drinking her days away bemoaning her victim status, when she isn’t stuffing the children with fast food, buying them toys, or pushing them towards the TV or computer.
Scattered with links to things like "Why Co-parenting doesn't work," the blog includes posts like "A Father Begs For Time With His Children, Part 3." In which Morelli claims that his wife never produced receipts for "alleged" expenses, and complains that her having to parent the children is a "a burden that exists because [the ex] wanted the divorce."
That post, by the way, detailed an exchange that was four years old.
Making those kinds of comments available for the children is itself problematic in a divorce situation, and goes beyond simply not liking your ex (which I think is fine) to actively running her down and posting about it publicly.
Even if the children did not see it, though (and remember, they were aware of it, so who can imagine they did not go read these things) the posts I read were suffused with hatred and bitterness, all of it directed at his ex and her family.
Although the court system takes its hits, too. Referring to a court hearing, Morelli writes:
I just discovered that the money machine that is our family court system is operating at peak money-taking efficiency. It was my mistake as I read the court order, which indicated that the matter was “generally continued and consolidated with the matter scheduled for conference on 6/24/2009.” I interpreted that to mean that the hearing was continued until that date and the usual and customary post-conference hearing would take place when we couldn’t come to an agreement.
The post goes on to reveal that he had his sister-in-law (who he also refers to as "psycho" and "Aunt DUI") subpoenaed to the non-hearing -- and decided to leave the subpoena in force, even though it was just a child-support conference.
Then he writes "15 Things Stepmoms Not-So-Secretly Want To Say To Moms." Here, Morelli exercises his First Amendment rights to say things like:
Don’t forget, most of those gifts are paid for with your child support that comes from our home and our hard work. You get paid well. He gets paid better. We have 50/50. What we send isn’t really child support, it’s free money for you to do with what you please
Hard to misinterpret that. And
Yes, the kids need a roof over their head. You should think about that the next time you’re at the mall shopping for goodies for yourself.
The final few posts accuse the ex-wife of filing for custody to get a "payday" because she was in foreclosure trouble, calls the ex "deranged" and says she's been drinking, and posts highlights of what Morellis decides is bad behavior, including putting the kids publicly in the middle of it by quoting them and saying what they're reporting.
Did I mention that Morelli's blog contained advertising? One thing I know about commercial speech is it's easier to regulate than purely personal speech.
So Morelli, as a so-called "concerned dad" exercising his First Amendment rights, spent years badmouthing his kids' mom and publicly embarrassing them and her-- apparently for profit. He has allowed his kids' parents' divorce to be publicly available on the Internet for years, so that not only will they see it but their friends will see it -- apparently for profit. And he's used that entire time to make money (apparently) off his kids' and his own angry dad-ness.
Like I began: I'm not a First Amendment lawyer. But I have trouble seeing most of Morelli's actions- which are appparently commercial and not familial -- as protected constitutionally.
On the other hand, I have little trouble seeing the potential harm (and possibly actual harm) that can come from his actions. In Wisconsin, the court must consider, in deciding custody issues, whether one parent is likely to support the other parent's relationship with the children. Morelli's blog makes abundantly clear that he cannot do that.
Angry dads have every right to blog. But they don't have every right to inflict their bile and anger on their kids... apparently for profit.