Failed Marriages, Round Two: If At First You Don’t Succeed…

8 April 2008: The Berkman Center‘s Citizen Media Law Project has kindly posted a description of this dispute.

then try contacting my boss! [See analysis of the latest order in the case, above.]

Recently, I wrote a post on Garrido v. Krasnansky, where a Vermont family court judge ordered the husband in a divorce case to take down his blog postings about the marriage. Unsurprisingly, I was skeptical that the order was constitutionally permissible. Shortly thereafter, I received a letter from Susan Ellwood, Ms. Garrido’s attorney, disputing part of the post and asking me to edit that part. I declined.

Now, Ms. Ellwood has written to my dean, Frank Wu, at Wayne State, to request his assistance in having me take down the part to which she objects. (Practically speaking, it’s not clear how this would work; a proposal to cane recalcitrant faculty was narrowly voted down last fall.) Dean Wu has been strongly supportive on this issue and vigilantly defends academic freedom; the idea that he would pressure a colleague into self-censorship is risible. (And, of course, he understands the blogosphere as a prolific poster himself.)

To be clear: I believe strongly in debate, disagreement, and transparency. Ms. Ellwood’s assertion that my “statements on [the] blog are inappropriate and quite possibly defamatory” is pretty clearly meritless, but I’m posting her letter so you can judge for yourself. That’s the point of blogging, and the conversation it creates. So, the post stays up, unedited, and I’ll put up any further correspondence to me, the Dean, my landlord, etc.

And of course I lack “general common sense”: I’m a life-long Red Sox fan!

If anyone has a copy of the complete filings in the case, I’d be interested to read them…

Update: [moved case analysis to new post above, 26 January 2008]

6 Responses to “Failed Marriages, Round Two: If At First You Don’t Succeed…”

  1. Bravo Derek, and bravo Dean Wu, for resisting this laughably hamfisted attempt at censorship. My personal opinion is that, if there is indeed a lack of “general common sense” on display here, it’s not yours.

  2. Update: There’s a hearing on Tuesday, 5 February, at 9:30AM in the case. The court’s on-line calendar says that it’s for motion practice; I can only assume it’s related to Mr. Krasnansky’s attempt to get Judge Devine to rescind or modify his order. See:

    http://www.state.vt.us/courts/court_cal/wnf_cal.htm

  3. If the husband took the physical property in order to post the excerpts, I think there is conduct there. Whether that’s enough to enjoin posting of excerpts from the “stolen” physical property, I don’t know.

  4. Thanks Michael – can you say more? I’d have to take any physical property to scan it or read it. On the facts from husband’s blog, the wife left the journal behind when she left the marital home. Are you thinking that some sort of trade-secret-like claim of improper means could apply here?

  5. I didn’t realize that the journal was left behind, though I think it may not matter from a stolen property point of view. The journal is clearly not his and he knew it, so opening it up, reading it, and posting is an action – just as selling or breaking an inherited heirloom would be, whether or not she left it behind he knew it was not his to do with as he pleased. Perhaps it is “joint property” under family law principles but that seems wrong here.

    I wasn’t saying a “trade secret” like liability would apply, but I have to think there is an “invasion of privacy” sort of tort associated with the publication of information that you know was intended to be private and that was not shared with you.

  6. I guess the question here is whether or not therre is jurisdiction in cyberspace and whose space is it anyways.

    that is the only point that is of interest to me in this case.
    Evenif all the law in the world supports the notion that a soon-to-be-ex can post anything he wants from his wife’s diary, whether he claims he fictionalized it or not and whether she left it on prupose or by accident it does seem his behavior is in terribly bad taste and a tad cruel. As for the voyeurs who read his rantings, I can’t account for their taste either.

    What I want to know is, whether protected speech or not, whether prior restraint or not,

    HOW DO WE KNOW THERE ARE FIRST AMENDMENT RIGHTS ON THE WEB?
    What additional fundamental constitutional claims exist in cyberspace, if any?