Can he/she really say that?
| Staff writer of The Christian Science MonitorThe case was an unusual one: Last month the Supreme Court of Washington state ruled on a man's right to prevent his ex-wife from complaining about him with the intent of "annoying, harassing, vexing, or otherwise harming" him.
The situation that led to the restraining order, sadly, was perhaps a bit more common: an acrimonious divorce, bitter feelings made public, a sense on both sides that the former spouse was exacting revenge.
Not surprisingly, the court struck down the antiharassment order that Andrew Hamilton had taken out against his ex-wife. To allow such a curtailing of speech before it's even spoken - a "prior restraint of speech" as it's known in legal circles - goes against the grain of American law. The justices unanimously agreed that it was unconstitutional, though they somewhat surprisingly suggested that a more specific order - prohibiting the ex-wife from repeating false allegations that Mr. Hamilton had molested their daughter, for instance - might have been allowed.
While the case itself is interesting in the legal sense - an unusual intersection of family law, free-speech issues, harassment, and defamation - it also helps to define the fairly limited recourse people have when they are being maligned by former spouses.
A bumper sticker that reads: "I miss my ex... but my aim is getting better," for example, might cause embarrassment, especially in a small town, but is hardly illegal. Similarly, no law ensures civility or discretion when it comes to talking publicly about someone. Spreading vicious rumors or calling an employer with false information might cross the line into the realm of libel or defamation, but pressing charges is difficult and costly. A restraining order, however, can help stop repeated calls or unwanted visits.
"In a system where we protect people's right to free speech, that's going to include people saying things you disagree with, or which will hurt your feelings," says Aaron Caplan, the American Civil Liberties Union attorney who represented Shawn Suggs. He was amazed that the order had been upheld by the courts as long as it was.
"Restraining orders are completely appropriate in cases where one person is inflicting unwanted contact on another person. But here - she's saying things about him that he considers untrue. But you don't give a judicial order that says never tell a lie again."
Viciousness in a divorce, of course, is nothing new. Clients will occasionally call the IRS with tips about their ex avoiding taxes, says Marlene Browne, author of "The Boomers' Guide to Divorce."
Another lawyer recalls a wife who sneaked onto the husband's property, pulled up all the newly planted flowers, and left them in a heap on his driveway.
"It's a way for the death dance to continue between the parties," says Ms. Browne. "It keeps them tied in a way."
In her experience, she adds, it's the party who feels more wronged or abandoned who tries to exact revenge, often a wife who's been unceremoniously dumped for another woman.
Getting prior restraint on speech, as the Washington husband sought, may not be possible, but if it's extreme the action may be classified as slander or libel, which can be addressed in a lawsuit. Such charges carry a heavy burden of proof, however, and can be prohibitively expensive.
"Preventing badmouthing is difficult," says Anita Robboy, an attorney at Perkins Smith & Cohen and author of "Aftermarriage: The Myth of Divorce." Restraining orders dealing with communication or contact between the spouses are not unusual, however.
"The abuse must be clearly delineated by the person claiming to have been abused," she says. Separation agreements that discourage either party from trying to estrange their children from the other parent are also common.
In the Washington case, Hamilton, a police officer, accused Ms. Suggs of "harassment," including telling the police department where he works, that he was breaking the law, that he threatened her, and that he was molesting their daughter (a contention she later admitted was false). Both Suggs and Hamilton at one point sought restraining orders against the other.
"Some of these claims were just horrendous," says John Hays, Hamilton's lawyer, adding that relations have gotten considerably better between the two in recent years, and both are moving on with their lives.
Neither the false charges of molestation - which can be difficult to disprove - nor seeking a restraining order is all that unusual, say lawyers. And Browne says ex-wives of police officers sometimes charge domestic violence to get officers' guns taken away, since a 1996 federal law prohibits anyone convicted of domestic violence or subject to a restraining order from carrying a firearm.
But a court erring too far toward protecting someone from false charges has its own dangers, one reason the Northwest Women's Law Center filed an amicus brief in the Suggs-Hamilton case.
An antiharassment order like the one Hamilton was granted could "significantly chill the ability of women who suffer domestic violence, particularly at the hands of law-enforcement officers, to seek relief through domestic violence shelter programs, the courts, and from the police," the organization wrote, citing a recent case in which a police officer killed his wife, who had voiced concerns about domestic violence.
Sometimes going too far in exacting revenge can be its own punishment, says Browne. Courts will take extreme vengeful behavior into account when deciding custody battles. In one headline-grabbing New York case, a woman claimed her children's father (who had visitation rights although they'd never been married) had abused the children. After investigating and finding the claims baseless, the courts awarded the father custody of the children on the grounds that the mother had made false accusations and sought to alienate the children from their father.
Caplan, the ACLU lawyer, notes that often the best way to fight back against a person's badmouthing is to speak in one's own defense. When Suggs told her ex-husband's police chief that she considered Hamilton dangerous, "[Hamilton] spoke up, gave his point of view, and the chief agreed with him," Caplan says. "The remedy for speech we don't like is more speech."