Most will not be surprised to learn that the right of free speech is not absolute. After all, libel is not freely allowed and we all know that you cannot shout, “Fire!” in a crowded theater, at least not without paying the price.
But those remedies normally come after the speech has been uttered.
“Prior restraint” orders are normally considered unconstitutional because they prevent free speech. In our society, we hold the exchange of ideas to be paramount, even those ideas we find offensive or repugnant. Therefore, any order or regulation that prohibits speech, rather than remedying the ill effects of such speech after the fact, is constitutionally suspect. Usually, such orders or regulations are only constitutional when a competing important interest is in the balance, such as the right to a fair trial in “gag order” cases.
A recent California Court of Appeals case found that the right of free speech must come second to the right of a victim of domestic violence to protection from abuse. In Evilsizor v. Sweeney, the court held that downloaded text messages and diary entries of wife must not be disseminated by husband to third parties. This is because husband was found to have disturbed wife’s peace of mind in relaying portions of the downloaded information to wife’s friends and family members. These actions on the part of husband destroyed wife’s mental or emotional calm, said the court, and therefore constituted “abuse” and, as such, was no longer protected speech.
Think about what other actions might destroy the mental or emotional calm, or otherwise disturb the peace of another. For further thoughts and analysis, check out my recent Los Angeles County Bar Association article on this case at www.lacba.org/showpage.cfm?pageid=16604#cawelti