Freedom of Speech Case

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IN THE CIRCUIT COURT OF MADISON COUNTY, ALABAMA

DORARENA KAY BOSTON, )
n/k/a DORARENA KAY HEISEY, )
)
Plaintiff, )
)
vs. )Case No. DR 99-1631.03
)
SCOTT CHRISTOPHER HOBBS, )
)
Defendant. )

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:

I. THE PLAINTIFF IS ATTEMPTING TO RESTRICT THE DEFENDANT’S RIGHT TO FREE PUBLIC SPEECH

This Court cannot grant the Plaintiff Dora Heisey’s (hereinafter referred to as “Dora”) request without impermissibly violating Chris’ First and Fourteenth Amendment rights to free speech. The restrictions sought by Dora are unconstitutional. Dora is not attempting to restrict Chris’ speech to their child, per se, but she is attempting to restrict Chris’ speech to the public, because of the effect she thinks Chris’ public speech might have on the child.

A. The First Amendment of the United States Constitution prohibits the government from interfering with a person’s freedom of speech.

The First Amendment of the United States Constitution prohibits the government from interfering with a person’s “freedom of speech.” Alabama courts have considered many First Amendment cases, and have been consistently emphatic of the enormous protection afforded one’s right to free speech. The Alabama Appellate Court has affirmed that the First Amendment was fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people. Ford v. Jefferson County, 904 So.2d 300 (Ala.Civ.App. 2004) (Per Murdock, J., with four Judges concurring in the result)(citations omitted). Further, the law is clear that speech concerning public affairs is more than self-expression under the First Amendment; it is the essence of self-government. Id. Accordingly, the Court has frequently reaffirmed that speech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values,” ’ and is entitled to special protection. Id. (Citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

In the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the United States Supreme Court stated the following with regard to the First Amendment's protection of freedom of speech:
“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)..”

Id. at 270-71, 84 S.Ct. 710.

B. Dora seeks to restrict Chris’ political expression speech aimed at informing the public about his experience in the domestic relations court.

As noted in Mills v. Alabama, 384 U.S. 214, 218-219, 86 S.Ct. 1434, 16 L.Ed2d 484 (1966):
“ ‘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.’”

The Alabama Supreme Court considered First Amendment issues regarding statements by a school board member and a mayor that a state senator and other public figures may have violated state ethics laws in Sanders v. Smitherman, 776 So.2d 68 (Ala. 2000). The Supreme Court of Alabama held that such statements were, at their core, political speech concerning matters of public concern and were subject to full measure of protection under First Amendment. The Supreme Court noted that they had to “consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” Id. at 74 (quoting New York Times v. Sullivan, supra).
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.

C. A court order restricting political expression is subject to strict scrutiny and Dora must prove a compelling governmental reason to restrict this speech.

It is clear that the speech Dora seeks to restrict is political expression aimed at informing the public about Chris’ experience in the domestic relations court. Because she is seeking a court order restricting political expression that “occupies the core of the protection afforded by the First Amendment,” this Court will apply “the most exacting scrutiny” when analyzing the order’s constitutionality. Butler v. Alabama Judicial Inquiry Com’n, 802 So.2d 207 (Ala. 2001); see also Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 153 (1982).
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.

The law is clear that the First Amendment not only prohibits censorship, but prohibits government conduct that inhibits free and general discussion of public matters. Ex parte Balogun, 516 So.2d 606 (Ala. 1987)(Overruled on other grounds). Further, the protection afforded by the First Amendment does not turn upon the truth, popularity or social value of the ideas and beliefs which are offered. Id. Requirements of the First Amendment are stringent and demanding and any regulatory scheme impinging upon such rights is assured of close scrutiny. General Corp. v. State ex rel. Sweeton, 320 So.2d 668 (Ala. 1975)(Per Almon with three Judges concurring, four Judges concurring in the result and one Judge concurring specially).

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...”

According to the Supreme Court of Alabama, Chris’s constitutional liberty of speech implies the right to freely utter and publish whatever Chris may please, and to be protected against responsibility for so doing, except so far as such publications may be publicly offensive to include blasphemy, obscenity, or scandalous character, or may injuriously affect standing, reputation, or pecuniary interests of individuals by their falsehood and malice. Barton v. City of Bessemer, 173 So. 621 27 Ala App. 413 (1936)(Rev’d on other grounds).
D. The subject of Chris’ website is all matters of public record.

The speech which Dora seeks to restrain is the website www.whyjudgelittle.com, and advertisements for the website. The website contains an outline of the pleadings, transcripts, and trial court and appellate rulings in the custody lawsuits waged by Dora against Chris. The substance of the website is simply a recitation and explanation of matters that are public record.

E. Dora has not made any allegations that, even if they were true, would be sufficient enough to violate Chris’ First Amendment rights.

Dora makes no such claim in her Petition that Chris has published anything false, publicly offensive, or obscene. Further, Dora does not offer any compelling governmental interest to justify restricting Chris’s right to political expression. In fact, she does not make any allegation other than Chris’ political speech has caused the child to “be nervous, resistant to exercising visitation, and has subjected him to extreme embarrassment.” While Chris vehemently denies these accusations, even if these allegations were true, they are insufficient to overcome Chris’ First Amendment rights, as the following cases set forth below demonstrate.

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.”

The adoptive father in Doe contended that the distribution of the novel would intrude upon his children's privacy and that the children would suffer “irreparable mental and emotional injuries” if the novel were published and distributed. The trial court agreed and issued the injunction. The Doe appellate court disagreed and held that the injunction against the publication of the novel violated the author/publisher’s right to free speech.

Another similar case is found in Interest of Summerville, 190 Ill.App.3d 1072, 547
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.

Consider also the case of Meredith v. Meredith, -P.3d-, 2009 WL 387272 (Wash.App.Div 2). In this case, the trial court restrained the husband from “contacting any agency regarding [his wife’s] immigration status...” The husband appealed, arguing this order impermissibly interfered with his right to free speech and his right to petition the government for a redress of grievances. The appellate court agreed, and held that the family court’s order was an unconstitutional prior restraint on the husband’s federal First Amendment rights.

In the case at bar, Dora seeks to restrict Chris’ free speech rights via an order directing Chris not to transport his child in an automobile that has an advertisement for the www.whyjudgelittle.com website. She also seeks to restrict Chris’ free speech rights via an order directing Chris not to pass out handbills or leaflets advertising the website when the child is present. Finally, she seeks to restrict Chris’ free speech rights via an order directing Chris not to have a sign in his front yard that advertises the website.

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.

II. THERE IS NO LAWFUL ORDER OF REASONABLE SPECIFICITY REGARDING CHRIS’ SPEECH FOR WHICH HE MAY BE FOUND IN CONTEMPT OF COURT.

Not only is Chris’ Motion to Dismiss due to be granted on constitutional grounds, but it is also due to be granted because Dora seeks to hold Chris in contempt for an order that cannot in any way be reasonably interpreted to enjoin Chris from speaking out about the previous trial judge or his experience in domestic relations court. In order to find a party in contempt of court for violating an order, the contempt petitioner must prove beyond a reasonable doubt that the party to be held in contempt was subject to a lawful order of reasonable specificity, that the party violated that order, and that the party’s violation of the order was wilful. Alabama Rules of Civil Procedure, Rule 70(A)(a)(2)(C)(ii).

Dora, however, cannot, and does not in her complaint, point to any order that specifically enjoins Chris from making statements of his opinion of the judiciary or the previous judge in this case. Dora cannot, and does not in her complaint, point to any order that specifically
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.

Finally, Dora does not make a claim in her Petition that Chris has made his child his confidant. Nevertheless, she asks this Court to find Chris in contempt of court for violating the orders that the parents should not make the children confidants of a parent.

Because Dora seeks to hold Chris in contempt for making remarks about the judiciary and for including the child’s picture in flyers regarding his remarks about the judiciary, and because there is nothing in any court prohibiting Chris from doing so, this Court cannot, as a matter of law, find beyond a reasonable doubt that Chris willfully violated a lawful order of reasonable specificity.

The court orders that Dora seeks to hold Chris in contempt for allegedly violating are
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.

It would be impossible for the average, reasonable person to conclude that the standard
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
256-536-1676 ‏

CERTIFICATE OF SERVICE
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.