Fortunately, the New Mexico Court of Appeals has reversed this order — at least unless and until the trial court finds that the material was libelous, something the trial court had not so far done — in Kimbrell v. Kimbrell (N.M. Ct. App. Mar. 13, 2013, though just put on Westlaw in the last day or two) (some paragraph breaks added):
At the time divorce proceedings commenced, Mother and Father had four children (the Children), including Daughter. A year into the divorce case, at Father’s request, the district court appointed the GAL to represent the interests of the Children. Shortly thereafter, the GAL [Guardian Ad Litem] issued her report and recommendations in which she advised reinstating contact between Mother and the Children, as well as placing one of the Children with Mother. With some modifications, the court largely adopted the GAL’s recommendations.
Thereafter, Father became displeased with the GAL and the court’s order. During the following three years of highly contentious custody proceedings, Father made five attempts to have the GAL removed. Each request was denied by the district court. Father also filed two lawsuits against the GAL, one in federal court in June 2009, and another shortly thereafter in state district court. In addition, Father filed complaints against the GAL with the Disciplinary Board of the New Mexico Supreme Court. Father’s lawsuits were subsequently dismissed. …
In May 2010, the district court denied Father’s fifth motion to remove the GAL. In its written order of denial, the court found that (1) Father’s motion to remove the GAL raised issues previously addressed by the court; (2) the motion was an attack on the GAL’s ability to represent the Children; (3) Father inappropriately viewed the GAL as an opponent; (4) Father’s continuing attacks on the GAL were becoming problematic for the administration of justice; and (5) Father’s continuing attacks on the GAL had become abusive and unfair. The district court ordered both Father and his attorney to refrain from filing any complaint, motion, or other “device” pertaining to the GAL without leave of the court.
In July 2010, Father sought permission to file yet another disciplinary complaint against the GAL. Rather than directly denying Father’s motion, the district court entered a preliminary injunction that again reprimanded Father for “improper” behavior and additionally prohibited Father from communicating with the media, the Department of Justice, or the Children’s biological parents regarding his complaints about the GAL.
Father then circumvented the district court’s initial order, which prohibited Father from filing any pleading or device against the GAL, by forming and acting through an organization he named “Stop Court Abuse of Children.” Through the organization, Father filed a new disciplinary complaint, without leave of the court, against the GAL and her former law partner and subsequently published the new complaint on a website he created called StopCourtAbuseOfChildren.com. His organization’s website solely discussed the custody case at issue in this appeal and displayed copies of documents related to the custody proceeding, including: the newest Disciplinary Board complaint against the GAL; an emergency motion for an ex parte order to modify periods of responsibility for one of the Children, to which was appended a letter written by that child; and the GAL’s motion to continue residential psychiatric treatment of Daughter…
On July 1, 2011, the court issued an order (the Internet Order) compelling Father to remove the information he had posted about the GAL and her former law partner from the internet because it was “designed to harass and intimidate the [GAL] in the exercise of her duties.” The court also stated that Father “is enjoined from re-publishing these materials or any part thereof about the [GAL], her firm and former law partner in the future.” Father’s second appeal challenges the legality of the district court’s Internet Order….
For the district court to issue an order restraining Father’s speech, the speech must not be a type of expression that is within the broad category of what is constitutionally protected.
The GAL argued to the district court and again argues on appeal that the speech was defamatory. Yet the district court never determined that the speech was defamatory during the hearing on this issue or in its order.
Rather, in the Internet Order compelling removal and enjoining republication of the complaint, the court justified the restraint by stating that it “ha[d] an important and inherent obligation to make parties to this action refrain from harassment and intimidation of other parties and the [GAL and that Father] caused to be published on the internet information designed to harass and intimidate the [GAL] in the exercise of her duties.” The court failed to make any other substantive findings about the document itself that was published by Father.
Although the GAL is immune from harassing lawsuits brought by the parties, we lack the constitutional authority to unilaterally extend this policy protecting the GAL in order to separately curtail Father’s exercise of free speech on the internet. As explained above, freedom of speech can only be limited where the speech is not protected. Thus, we cannot affirm the district court’s Internet Order on its basis that the speech was harassing or intimidating because this alone is insufficient to show that the speech was not protected. Texas v. Johnson, 491 U.S. 397, 414 342 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).
The GAL argues that we can conclude that the internet publication constituted defamation based upon evidence the GAL presented in the district court, the findings the court made in its Internet Order, and the findings it made in a second order regarding the GAL’s attorney fees. Yet the second order simply recognizes that the disciplinary complaint was “nothing more than a thinly disguised attempt by [Father] to use the disciplinary system as an alternative forum in which to pursue his vendetta against [the GAL].” Neither order addressed or established the existence of the requisite elements of defamation, although it appears that the GAL presented evidence regarding the nature and contents of the publication and Father’s motives in publishing the contents….
Because the district court did not make factual findings regarding defamation but rather simply restrained Father’s publication based on a constitutionally impermissible rationale, we must reverse. We remand for the district court to consider the GAL’s arguments and evidence regarding defamation in light of the facts of this case, should Father wish to persist in his publication efforts.