Yesterday, I wrote about one husband's malicious rant on the Internet. William Krasnansky has published a blog, http://lookatmypugs.livejournal.com/ in which he reveals the most intimate (and often the most petty) information about his seven (or so) year marriage. His diatribe is obviously intended to get even with his wife who, he says, "Runnoft" and left him. [NOTE: Krasnansky eventually deleted (or made non-public) this material. More about that later.]
The man apparently has a Mensa membership, but whoa . . . who could read his blog and think him to be a "smart person?" In the meantime, the judge has ordered him to remove "any and all Internet postings" about his wife. The ex parte order is challenged as unconstitutional--as an infringement upon his First Amendment right to freedom of speech.
I fail to see how the trial court’s temporary injunction--a prior restraint upon this man’s First Amendment right to freedom of expression--can stand. Basically, one can say anything about anybody so long as one is willing to be held liable in money damages if found to have committed a tort such as libel, slander, invasion of privacy, or intentional infliction of emotional distress.
However, the First Amendment protects speech from being squelched in advance of publication—except in certain cases. You can read about all of the exceptions in a huge memo for which you paid. See
“Report for Congress, Freedom of Speech and Press: Exceptions to the First Amendment,” by the Congressional Research Service, updated April 2007. [Now, don’t you feel better knowing that your tax dollars are being spent educating members of Congress about how to get around the First Amendment?]
I think we can eliminate libel and slander claims being filed against Mr. K. since apparently (presumably) his revelations are true and opinions are not actionable. He, of course, states that he's writing fiction, but check out his scatological disclaimer.
There are actually four kinds of invasion of privacy torts, not all of which are recognized in case law in all jurisdictions:
- “Intrusion upon seclusion”
- appropriation (of another’s image, e.g.)
- “false light” (publishing false statements that put a person in an embarrassing false light), and
- “public disclosure of private facts”
The first two don’t fit at all here. “False light” wouldn’t work in this case, apparently, because truth is a defense to those torts and Mr. K is apparently publishing statements that are true. “Public disclosure of private facts” appears to be the most viable tort claim in this case. The First Amendment doesn’t protect people from being sued for damages if the person reveals information that is not of public concern and if the release of the information (even if true) would offend a reasonable person.
Public disclosure of private facts includes publishing or widespread dissemination of little-known, private and embarrassing facts that are not newsworthy, are not part of public records or public proceedings, are not of public interest, and are not a matter of legitimate public concern where the disclosure would be offensive to a reasonable person if made public.
Daniel Steven gives some examples of “public disclosure of private facts” that are actionable:
For example, publicizing the fact that your brother-in-law has failed to pay his mortgage for three months, although true, would be an invasion of his privacy. Other examples would be details of a person's sexual problems, physical or mental ailments. Problems often arise when writing about a real-life event: in such cases, you should obtain written releases from the "ordinary people" who are only peripherally involved with the newsworthy event. Steven, D. “When Truth is No Defense,” Last accessed January 13, 2008
Thus, Mr. K might be sued for public disclosure of private facts and/or for intentional infliction of emotional distress, not only by his wife, but also by her alleged lover and his alleged wife and alleged 6 children.
Because "public disclosure" is a form of invasion of privacy, anyone suing Mr. K would have to have an expectation of privacy |an expectation that confidential personal information disclosed in a private place will not be disclosed to third parties, when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities. Information is interpreted broadly to include facts, images (e.g., photographs, videotapes), and disparaging opinions. Without a “reasonable expectation of privacy,” there is no viable cause of action for invasion of privacy.
Thus, Mr. K’s wife may be out of luck. After all, he found her seven years’ worth of journals in their house, where she left them. It’s rather like leaving a letter that you’ve already opened out on the table where it can be read. On the other hand, reading something you find on the table is one thing. Publishing such private information is quite something else again. Certainly, the alleged lover and his alleged family did not expect to have their private lives exposed in such a malicious, public manner.
I’m just glad this guy isn’t my client. I really hate it when clients do stupid, spiteful things before the judge has even decided the case.
NOTE: In reviewing Mr. K's website on February 11, 2008, I note that the original material has been deleted. In its place are two posts, one written on February 5 and one written on February 10. It's clear that a court hearing has occurred addressing the issue of the restraining order. It would appear that the judge's order stands. Apparently this is old news, however, and even Google can't help us discover the grounds for the judge's ruling. The only possible grounds could have been an exception to the First Amendment, as briefly discussed above.