“Respondent May NOT Use Internet in Any Manner to Communicate About Petitioner Ever Again”

That’s the order that a Wisconsin court issued in telling an ex-wife that she may not speak online about her ex-husband (emphasis in original). A similar order (though only for four years, and not “ever again”) was issued barring the ex-wife from speaking online about her ex-husband’s lawyer.

The ex-wife apparently violated the order, and is now being prosecuted for violating the injunction, because she kept posting things about the ex-husband and his lawyer. The prosecutor’s criminal complaint also mentions that the ex-wife was criticizing the judge who issued the injunction (Commissioner Linda Georgeson) and some other judges, but it’s not clear to what extent those criticisms form the basis of the prosecution — look at the criminal complaint and see for yourself.

The injunctions strike me as patently and vastly overbroad, and therefore clearly unconstitutional. Even if a narrow injunction of constitutionally unprotected speech — such as an injunction against repeating statements that have been found to be libelous — might be constitutional (a matter that remains unresolved), an injunction against all Internet speech about a particular person can’t be squared with the First Amendment.

The ex-wife might still be in legal trouble, because in Wisconsin, as under federal law, one generally cannot “collaterally attack” an injunction when prosecuted for violating the injunction. The theory is that one should appeal the supposedly unconstitutional injunction in the first place (something that the enjoined party often finds hard to do, especially if she has no money to hire a lawyer), rather than violating it and then raising the allegedly invalidity as a defense. Even so, the Court recognized that if the injunction is “transparently invalid,” perhaps it could be challenged at the contempt proceeding, and the injunctions here seem to me to be transparently invalid. See, e.g., State v. Alston (Kan. 1994), Matter of Providence Journal Co. (1st Cir. 1986), and State v. Coe (Wash. 1984).

But regardless of whether the ex-wife can avoid criminal punishment, it seems to me that the injunctions in this case violate the First Amendment, and ought to be condemned.