Intellectual Property Law

Failed Marriages, Ugly Dogs, Copyright, and Free Speech

By Tim Armstrong, Derek Bambauer, and William McGeveran.

18 January 2008: Updated with response from Susan M. Ellwood, Ms. Garrido’s lawyer

I’ve been fascinated by Garrido v. Krasnansky, the Vermont divorce case written up in the New York Times. It’s a typically ugly divorce - adultery, recrimination, financial shenanigans, nasty legal skirmishes - but what makes it fun for information law types is the confluence of two facts: Krasnansky, the husband, is blogging about the failed marriage, and the judge, Thomas Devine, has ordered him to remove the postings from the ‘Net.

To frame this: a judge has ordered one party to stop talking - at least online - about his case. This type of gag order seems suspect constitutionally. My friend Sarah Abramowicz, a family law expert who teaches at Wayne State, reminded me that family law has an unusual relationship with standard constitutional rights, and pointed me to a great article by Eugene Volokh on the topic. At least in the child custody context, courts can order parents not to leave the state (freedom of movement), not to express their religious beliefs to their children (freedom of religion), and not to insult the other parent (freedom of speech). (Question: could a court limit a parent’s discussion of his / her political views, if the other parent felt differently and the conflict over politics might cause distress to the child? I ask because it’s interesting how far family law exceptionalism goes…)

What grounds could Judge Devine base this ruling on? After all, it seems like a prior restraint of speech - which is, in American constitutional jurisprudence, exceptional and unusual. There are a few possibilities:

• Harassment - if Krasnansky was using the blog to harass his (soon-to-be-ex) wife, the court might order him to take it down (though this still seems dicey before the court actually holds a hearing on the issue). I’ve read the blog and, while it’s obnoxious in places, and certainly reveals things the wife would probably want kept private, I don’t think it would qualify legally as harassment. Certainly one would think that the judge would need to make some findings on this issue before posting an injunction.
• Invasion of privacy or a “false light” tort (thanks to Steve Davidoff for this insight) - possible, but it strikes me as unlikely. It would be interesting to see whether an invasion of privacy claim would work against a spouse, and truth is a defense to false light (if I’m remembering my Torts class correctly).
• Defamation - the merits of this claim depend on whether the husband is telling the truth. If he is, he’s safe. (Garrido isn’t a public figure, so NYT v. Sullivan’s heightened standard doesn’t apply.) One might think, if even some of the claims are true, that Garrido might be reluctant to litigate this issue.
• Copyright - the NYT brings up Garrido’s copyright in her journal. Here I feel on more solid ground. Clearly she does have copyright in the journal - the Salinger case helps us here - but I think it would be hard to argue infringement. Krasnansky is only quoting small bits of the journal, and he’s doing so not for commercial gain, but to make a critical argument. In other words, this looks a lot like fair use. Ironically, this would be the best grounds for the judge to have issued his order, since injunctive relief is pretty standard in copyright law (though, after eBay, it likely can’t be automatic).

So, where does this end up? I should note two things: family law disputes are always involved and ugly, and there may well be facts of which I am not aware. But my initial take (qualified by my imperfect information) is that Judge Devine needs a refresher course in constitutional law. Krasnansky’s blog is unpleasant in places (and his claim that it’s “fiction” is, well, a bit less plausible when he says that “Any Resemblance To: Actual Cheating Wives And/Or Actual Cheating Married Alcoholic Contractors With Six Actual Kids & Wives Of Their Own Actual Thirty-Eight Year Old Black Leather Motorcycle Mamas Who Abandoned Actual Successful Professional Careers As Actual Tenured Academics To Attend Culinary School For A Year On Their Husbands’ Dime And Then Drop Out”), and he’s clearly obsessed with Garrido (who seems like an ethically challenged person even on a generous reading of the facts), but he has a constitutionally guaranteed right to express his point of view. [Update: Ms. Garrido’s attorney, Susan M. Ellwood, disputes this opinion. See her letter, and my response.] His blog won’t alter the case - there’s no jury here - and there aren’t any children involved. The copyright claim that would support an injunction is thin at best, and I don’t think either of the tort claims would support such a broad, unusual order, especially without a hearing on their merits.

Judges have extraordinary power - the case, common in first-year civil procedure, about Martin Luther King’s violation of a judicial order makes this clear. But, as the Spiderman movies remind us, with great power comes great responsibility. Judge Devine seems to have made a mistake, and I hope he’ll correct it by dissolving the order.

Full post as published by Info/Law on January 18, 2008 (boomark / email).