Freedom of Speech Case
n/k/a DORARENA KAY HEISEY, )
vs. )Case No. DR 99-1631.03
SCOTT CHRISTOPHER HOBBS, )
MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
Comes now the Defendant Scott Christopher Hobbs (hereinafter referred to as “Chris”), by and through his attorney of record, and files this Memorandum of Law in Support of his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, as follows:
“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498. ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117. ‘[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions,’ Bridges v. California, 314 U.S. 252, 270, 62 S.Ct. 190, 86 L.Ed. 192, and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion.’ N.A.A.C.P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405. The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’ United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943)..”
“ ‘Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.’”
Dora claims in her Petition that Chris has subjected the child to “information concerning court proceedings and [Chris’s] position that he has been treated inequitably and unfairly by the judges of this county.” She makes no complaint in her Petition other than about Chris’ statements about the previous judge in his case. Clearly, such speech on the part of Chris is a “vehement, caustic and ...unpleasantly sharp attack on [a] government and public official” that is protected, and indeed valued, as described by the Alabama Supreme Court in Sanders, supra.
http://web2.westlaw.com/find/default.wl?tf=-1&serialnum=1982115443&rs=WLW9.02&ifm=NotSet&fn=_top&sv=Split&tc=-1&findtype=Y&ordoc=2001616596&db=708&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FamilyLawPrac When “a State seeks to restrict directly [political expression], the First Amendment surely requires that the restriction be demonstrably supported by not only a legitimate interest, but a compelling one, and that the restriction operate without unnecessarily circumscribing protected expression.” Brown, 456 U.S. at 53-54, 102 S.Ct. 1523. Freedom of speech or press is susceptible to only such restrictions as are necessary to prevent grave and immediate danger to interests which state may lawfully protect. Mills, supra.
Judge Story, in his Work on the Constitution (5th Ed.) vol. 2, pars. 1886-1892, both
inclusive, fully discusses, with cited authority, the clause of the Constitution preserving the freedom of the press and free speech and concludes with this statement: “No one can doubt the importance, in a free government, of a right to canvass the acts of public men and the tendency of public measures, to censure boldly the conduct of rulers, and to scrutinize closely the policy and plans of the government. This is the great security of a free government. If we would preserve it, public opinion must be enlightened; political vigilance must be inculcated...”
D. The subject of Chris’ website is all matters of public record.
The Supreme Court of Alabama recognized, in Doe v. Roe, 638 So.2d 826 (Ala. 1994) that the fact that a subject is already a matter of public record is an important factor when considering whether the court could enjoin a person from publishing those matters of public record in a different forum. In Doe, the adoptive father of children whose mother was murdered by their father sought an injunction against the publishing of a novel based on the murder. The trial court granted the injunction, and the author/publisher appealed. The dispositive question on appeal is whether the injunction violated Article I, § 4, of the Constitution of the State of Alabama. According to Article I, § 4, “no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
N.E.2d 513 (1989). In Summerville, a child was the subject of a custody dispute and the child’s name and face appeared on a television new report. The trial court then entered an order prohibiting the parties in a child custody case from communicating with the media. The Guardian Ad Litem of the child objected to the order as being violative of the first amendment, overbroad and vague. The Department of Children and Family Services (DCFS) contended that the order was “reasonable to prevent potential future harm and embarrassment to [the minor child who was the subject of the custody suit]...” The Summerville Court held that a finding of “possibilities,” even if present, was not sufficient to support a conclusion that the order was constitutionally valid. The Summerville Court held that the order prohibiting the parties from communicating with the media in the child custody case did violate the First Amendment rights of the parties, as there was no evidence that the conduct of the parties created a clear and present danger, or serious and imminent threat to the fairness and integrity of the judicial process.
None of these restrictions would be constitutional. Chris has a constitutional right not only to free public speech about his experience in the domestic relations court, but also to teach his son about his rights, how our form of government operates, and to demonstrate to him to be an active participant in the freedoms and processes granted to the citizens of the United States by the U.S. Constitution and the Constitution of the State of Alabama without interference by those who dislike the content of Chris’ speech, or Chris’ efforts to educate himself, his son and those in his community. As a result, Chris’ Motion to Dismiss is due to be granted on constitutional grounds.
enjoins Chris from using his child’s photograph when making statements of his opinion of the judiciary or the previous judge in this case.
Further, Dora does not make a claim in her Petition that Chris has made disparaging remarks about her in the presence of the child. Nevertheless, Dora asks that this Court find Chris in contempt of court for violating the orders that enjoins each party from making disparaging remarks about the other in the presence of the child.
unconstitutionally vague and overbroad. Dora, in effect, asks this Court to interpret the current custody order as an order prohibiting Chris from making statements of his opinion of the judiciary or the previous judge in this case. Such an interpretation is completely without merit, and in fact would result in an unconstitutional result. That is, the court order would be so vague as to leave Chris without knowledge of the nature of speech that is prohibited. Any order restricting speech must include clear guidelines regarding what is illegal so that there will be no “chilling” effect on exercise of free speech. Dowling v. Alabama State Bar, 539 So.2d 149 (Ala. 1988). Clearly, when a court order is issued, the acts or things proscribed should be specified in the order with such reasonable definiteness and certainty that a party bound by the order may readily know what he must refrain from doing without the matter being left to speculation and conjecture.
parenting provisions recited verbatim in paragraph 2 of Dora’s Motion to Hold Defendant in Contempt of Court would enjoin that person from publishing a website speaking out against a trial judge and describing his experience in domestic relations court. It would be impossible for the average reasonable person to conclude that those standard parenting provisions prohibited him from advertising that website at his home or on his vehicle. It would be impossible for the average reasonable person to conclude that he could not publish photographs of his child on his website or on his automobile. This court cannot find, as a matter of law, based upon the pleading before it, beyond a reasonable doubt that Chris was subject to a lawful order of reasonable specificity, that Chris violated that order, and that Chris’s violation of the order was wilful. For these reasons, Chris’ Motion to Dismiss is due to be granted.
This the ____ day of ________________, 2009.
Dinah P. Rhodes
Attorney for the Defendant
115 Manning Drive, Suite D-202
Huntsville, AL 35801
I hereby certify that I have served a copy of the foregoing upon opposing counsel of record, William P. Burgess, by placing a copy of the same in his Courthouse Box on this the_______day of February, 2009.