A Vermont divorce court judge made a big splash in the New York Times last week when he ordered the husband to "remove any and all internet postings" about his wife and their marriage. Two days ago, the judge vacated that order, recognizing that the husband had a First Amendment right to publish his views online.
However, Judge Thomas J. Devine wrote, the husband did not have the right to post digitally scanned portions of his wife's personal journal, which she left behind when she departed the family home. The court decided that the wife had a property interest in her personal journal. The court didn't linger long on the nature of the wife's property interest (common law copyright was mentioned) in her journal, noting that intellectual property issues were outside its limited subject-matter jurisdiction. Regardless, the judge wrote:
Wife has a proprietary and possessory interest interest in her books and papers as both tangible property and intellectual property. She also has a First Amendment right to express herself, or not if she should choose. In seizing her writings and placing them on the blog, husband has crossed the line from speech into conduct. In doing so, he becomes subject to the family court's jurisdiction.
The court held that a state court rule authorizing it to take action to preserve marital property during the course of a divorce action provided sufficient legal authority for an order directing the husband to remove from his blog excerpts from the wife's journal.
With this view of the law in mind, the court vacated its prior, sweeping order to take down "any and all" blog postings by the husband, ruling that the prior order was overbroad and in violation of the husband's First Amendment rights. The court also held that it did not have jurisdiction to decide whether any of the blog postings were defamatory. Finally, it set the case for a hearing at a future date, apparently for the purpose of taking evidence and entering a final order protecting the wife's property interest in her personal journal.
The case is Garrido v. Krasnansky, No. F 466-12-06 (Vt. Fam.Ct, Washington, Cty., Jan. 14, 2008).
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