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Pennsylvania judge Diane Gibbons ordered a father to take down his website critical of his ex-wife.  Read about it here (Philly Burbs, 7/21/11). Apparently, Anthony Morelli and his ex-wife Allison Morelli have been divorced about seven years.  At some point, Anthony and his girlfriend, Misty Weaver-Ostinato, put up a website he says to air his complaints about his experiences with the post-divorce process.  They called the site "The Psycho Ex-Wife." 
 "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."
Anthony admits that the site was somewhat inflammatory for the sake of attracting readers, but claims he's never identified his wife or children by name.  He also says he went to great lengths to keep the site secret from his kids. But eventually they found out about it and so did Allison.  She went to court to get it taken down and the judge agreed.  Predictably, she defends her decision as in the best interests of the children.
"This is about children,' said the judge during a June 14 hearing...  The judge characterized the original website as containing "inaccurate and denigrating, belittling comments about mother. It is not just venting that I have read in these pages. It amounts to outright cruelty.'
Since the site's been taken down, it's hard to know just what was on it, but the linked-to article's most demeaning quotation has Anthony referring to Allison as "Jaba the Hut but with less personality."  Not flattering, but not actionable either. Anthony Morelli and Misty Weaver-Ostinato have appealed the order saying it violates their right to free speech.  To be blunt, they're right.  Judge Gibbons's assertion of a "best interests of the child" exception to the First Amendment's guarantee of the right of free speech has, as far as I know, no precedent in constitutional law. Respected constitutional scholar Eugene Volokh agrees.
"It"s not limited to libel, it covers all speech about the ex-wife. It"s clearly unconstitutional,' Volokh said.
Gibbons" determination the site was abusive to the children is not sufficient cause to order it taken down, according to Volokh. "That"s not an adequate rationale,' he said.
The courts have ruled even national security is not reason to order a newspaper not to publish, the professor said, citing the example of the publication of the Pentagon Papers, which revealed the nation"s involvement in the Vietnam War.
"It"s one thing to restrict speech to children, but not to the entire public. At least attempt to narrow the limits of speech,' said the professor.
Volokh continued, "I rarely criticize judges, they have a very difficult job,' but, he said, "this is a blatantly unconstitutional exercise of her authority. She"s flouting the U.S. Constitution.'
That of course means the order will be overturned by an appellate court whose judges, apparently unlike Gibbons, took Con Law in school.  That'll be a good development, and a necessary one for maintaining our free speech rights. But the victory that's sure to come obscures the advent of a less heartening development that likely will as well.  At the hearing in June, Judge Gibbons promised this:
"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.'
Aye, there's the rub.  Her order is clearly unconstitutional and will be overturned, but if you thought that was the extent of her power over Anthony Morelli, you were wrong.  He and Allison have some form of joint custody and, if he continues to exercise his free-speech rights, he'll find his access to them denied.  And again he'll be told that it's in the children's best interests. It's odd how that works.  He has some sort of custody now and has for seven years, during which time he's been publishing various items on his website (at least until recently).  But if he continues to criticize his wife online, he'll all of a sudden become unfit to parent his kids.  That of course is pure bunk.  If Gibbons denies him access to his kids because of his criticism of his ex, it'll have nothing to do with child well-being and everything to do with punishing a father for exercising his right of free speech.  But would an appellate court agree?  I doubt it. Of course if Anthony's words had anything to do with parental alienation of his kids, that would be different.  Parental alienation can and should always be grounds for limiting parental contact.  But no one has said anything about his aiming his remarks at his children.  On the contrary, he bent over backwards to ensure that they wouldn't see the site, even though they eventually did. No, the "take-away" on this is the power of family court judges.  The U.S. Constitution contains no 'best interests of children" restriction on the right of free speech, but family court judges can find any facts they wish about parental fitness.  And if that includes taking children from a father because the judge doesn't like what he says about the mother, so be it. Also, it's hard to avoid the conclusion that Gibbons's plaint was only partly about what Anthony said about Allison.  I'd say the judge is also angry about what he at least implicitly said about her.  After all, he's griping about how judges walk away from their custody decisions "with nary a care as to how clients can and do, go against the orders they have handed down." That's a slam at the mother, but it's also a swipe at the court for, I'd be willing to bet, it's failure to enforce his visitation rights. Family courts routinely intone the mantra of "the best interests of the child," while simultaneously doing the opposite.  As long as there's no more objective standard than that, we'll continue seeing parents silenced by judges whose power regarding child custody continues largely unchecked. Thanks to Jim for the heads-up.

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