WE HELP FAMILIES RESOLVE CONFLICT PEACEFULLY


Thursday, August 11, 2011

Is it Moral? Is it Legal? These are not the same Question.

Dammit Jim, I'm a Lawyer not a Priest!

I often have to refer my clients to other professionals when issues arise in a divorce case that I do not have professional training to deal with. The most common example is when I tell clients that they need to seek the assistance of a therapist, because they are using me to help deal with emotional problems. But there is also the rare occasion when a client will ask me whether they should do something which I find morally offensive but which is technically not illegal. In these situations I will explain to a client that their actions may not have legal consequences but they may have other (moral) consequences. In other words, just because something is legal doesn't mean you'll be able to sleep at night.

A good example of this distinction is the latest case of divorced parents acting inappropriately:

Mr. Morelli published a Blog entitled "The Psycho Ex-Wife" where he and his current significant other bash his ex-wife and even, in some instances, his own children. The Court ordered him to take the site down, and this has sparked significant controversy over his potential First Amendment rights.

There are really two issues at play in this case, and many commentators seem to be confusing the two. The first issue is whether or not Mr. Morelli should be legally allowed to publish this material. Or put another way, is his speech protected by the First Amendment? The second, and just as important, issue is whether or not Mr. Morelli's actions are moral.

Because this is a Blog devoted to legal issues in family law, I will address the legal question first:

1. Is the Psycho Ex-Wife Blog protected by the First Amendment?

I have seen many Judges order parents not to disparage the other parent in front of, or within earshot of the children. In addition, we often include this provision in our parenting plan agreements. Obviously parents can agree to limit their rights, but is it a violation of the First Amendment to prohibit parents from speaking their mind to their children?

The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

The Courts have expanded this limitation on Congress to include any "state action" by officials of any level of government, which would include state Judges. But that doesn't mean that freedom of speech is absolute. There are limitations which the U.S. Supreme Court has found are permissible.

The most common example is that you are not free to yell "fire" in a crowded theater if there is no fire. The incitement to riot or violence is considered unprotected for obvious reasons.

But there are other limitations that should be common-sense as well. You do not have the right to slander others, and in fact you may be subject to civil litigation if you do. You also don't have the right to publish obscenities. While these limitations are often difficult to pinpoint and usually involve some gray area, the overriding theme is that the government is not allowed to limit your speech because it is unpopular or distasteful, but can limit speech to protect the public.

In the Psycho-Ex Wife Blog case, the state Judge is trying to protect the children, and most state laws give Judges broad discretion to protect the best interest of children in custody disputes. In most cases, the Judge is not ordering that a parent cannot complain about their ex, but only that they can't do it in front of their children, who could obviously be damaged by such comments. It seems that this type of limitation is within the scope of restrictions which have previously been allowed.

Fortunately (or unfortunately, depending on your perspective), we are unlikely to see such a clear-cut case address this issue in front of the Supreme Court, because what parent wants to be the one to take an appeal to the Supreme Court claiming they should be able to tell their children directly that their Mom is a psycho.

In this case, Mr. Morelli has not taken it that far. Instead he has attempted to blur the line by claiming that his Blog was sufficiently anonymous and that the children would not have known about it if not for their Mother showing them the website. If the Mother showed the children the site then certainly her actions are as deplorable as his, but the legal question is: would they have found it anyway? The distinction he is attempting to make is that telling your children directly that their Mom is a psycho is different than writing it on the internet. But is it really that different?

Given how often we write on this blog about being careful with anything you put on the internet, you can probably guess where we come down on this issue. You should assume that everything you put on the internet is public and will be seen by anyone who can access the internet, especially the people you least want to see it. The idea that Mr. Morelli can protect his children from something he writes on the internet forever is laughable, and clearly that is where his argument breaks down. I can't recognize the practical distinction between saying something directly to your children and writing something on the internet in a forum where it can be copied, reposted, discussed on other blogs, and even end up on the Today Show.

The simple fact that this story has now made national news proves my point that once you put something on the internet you risk it having a life of its own and growing to a point where you do not control who sees it. This is especially true for your own children who have all the motivation in the world to read everything you tell them not to.

If there is no practical distinction between calling your ex a psycho on the internet, and saying it in front of your children, then the only way that you can support Mr. Morelli's First Amendment argument is to agree that he should have a constitutionally protected right to say these things directly to his children. Given the amount of psychological damage that can cause children of divorce, I don't think the First Amendment stretches that far.

2. But even if the First Amendment does protect his speech, Is it Right?

On principle, we don't endorse asking your lawyer for moral advice. But if you've read this far, you probably already know what our answer to this question is. Mr. Morelli doesn't seem to understand that his actions increase the conflict, not minimize them. He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems. This is a distinction lost on many, especially those who are particularly angry about how their divorce went. Complaining can be cathartic, but it doesn't solve problems and if you complain in a forum accessible to your ex, then you are more likely increasing the conflict, not trying to deflate it.

Many people will try to turn this case into a forum to talk about how hard it is to be a divorced mother vs. a divorced father (just read the comments on Huffington Post to see how far this has gone). This is exactly what Mr. Morelli was trying to do. Like many on the internet he was seeking validation through shared experience, and that validation was more important to him than his children's well-being. If he truly believes that his children would never see the words he wrote on the obviously public form of the internet than he is delusional.

Unfortunately, it is much more likely that he is looking for the same validation from his children that he is from the public. It is far more likely that when he wrote this blog he was actually hoping his children would see it some day.

This desire to be the "validated" parent is a common feeling. Parents often want their children to be on "their side" and understand that the other parent is at fault. The reason that the court has to tell parents that they shouldn't bad-mouth their ex-spouse in front of their children, is exactly because this feeling is common-place. Sometimes common-sense and moral judgment must be used to overcome strong emotional responses. Sometimes being a good parent is about biting your tongue. Mr. Morelli and his "psycho ex-wife" would be better off if they learned that lesson, or at least their children would be.

6 comments:

  1. It seems that society has come to believe that all rights, especially free speech, involve no corresponding responsibilities. There seems to be a more and more prevalent belief that because I think something that I have both the right to say it, regardless of the harm it will do to others, and that others "have" to listen to me.

    Yet many of these same individuals would, probably, also take offense if such language was directed at them.

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  2. I completely agree with you. There is no way, if he were truly thinking about his children, that he'd say this is about his 1st Amendment rights. He and his ex need some parenting classes. I feel bad for the kids!

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  3. "He claims he chose this outlet as a way to help others, but there is a distinction between wanting to tell the world how bad your ex is and trying to find solutions about how to deal with those problems."

    Mr. M has helped countless individuals with solutions he has offered. Obviously you are hung up on the 1/3 of the anonymous posts that have anything to do with his ex-wife, and are completely ignoring the other 2/3 of the postings that offer suggestions on ways to REDUCE conflict with a former spouse that is determined to destroy you and your relationship with your children.

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  4. Anonymous: Thank you for your thoughts. I have one question in response: Would Mr. M's constructive 2/3 still have been useful without the destructive 1/3 of posts?

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  5. The judge wanted to protect the children huh? Protect them from words written on a blog but not from the damage caused by an alcoholic mother. Pity that our society has a problem with someone writing about an issue but not the issue itself. I find it disgusting that people want this father to sit quietly and let his ex and her family damage the sons even more. Anyone really think the boys would have been ok if the father just would have turned a blind eye to the mothers drinking? That is how the latest court started out right? The father tried to protect his sons after they asked for help. Oh wait let me guess, the father's blog caused the mother to become an alcoholic? I need to check under my bed for the blog, I hear it's the new "boogie man".

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  6. Anonymous, Thank your for your comments. I'm glad you found a fair amount of sarcasm under your bed while searching for the boogeyman.

    Regarding the comparisons you have made, I do not agree that two wrongs make a right. The Mother's alcohol abuse is of great concern and endangers the children. I looked again but couldn't find any part of our post which indicated the Mother's behavior was acceptable. I also reread the transcript of the court hearing which is the source of the controversial order by the Judge, and at no point in that hearing did the Judge say the Mother's alcohol use was okay. In fact the Judge ordered the Mother not to consume any alcohol.

    That's an important and overlooked fact in your comments. The Judge, who you imply doesn't care about these children, ordered the Father to essentially shut up and ordered the Mother to stop drinking alcohol. Drinking alcohol is a legal activity protected by the 21st Amendment. Should we be concerned about her rights or the danger she poses to the children?

    Frankly, reading both transcripts of the court hearings it is obvious the Judge is concerned for these children and wants to find the best way to protect these children from the bad behavior of both parents. I don't think the Father should be quiet about any bad behavior of the Mother, but there is a time and a place. He has every right (and responsibility as a good parent) to bring those issues to the attention of the Judge. But he shouldn't discuss these accusations with his children, especially in a way that denigrates the Mother. I still believe that printing the same on a public forum is no different than telling the children directly.

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