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Is Judge Enjoining Sales of a Book?

The Boston Herald reports:

A judge who figures prominently in a Methuen father's new book about losing custody of his child issued an order yesterday on whether sales of Kevin Thompson's tell-all should be banned.

But you won't read all about it here because Essex Probate and Family Court Justice Mary McCauley Manzi impounded her decision in Lawrence....

While Thompson dedicated one chapter to Manzi -- the same judge who awarded custody of his son Patrick, 4, to the child's mother, Methuen teacher Kathleen Moran -- he put the boy's picture on the back cover.

That goaded Moran to ask Manzi to restrain Thompson from disseminating any more copies....

Even Thompson does not know what the judge decided: Her ruling is being sent to him in the mail....

If the judge has indeed enjoined distribution of the book, that seems like a clear First Amendment violation to me. Regardless of when and whether a judge may limit parents' custody rights based on their speech, the judge may not enjoin parents from publishing books; and that the book uses the child's name and picture is surely not reason enough to enjoin speech this way, either -- there is no First Amendment exception for speech about children.

Thanks to reader Rob Latimer for the pointer. If any of you hear more about the case, and about what the order says, please let me know.

Philistine (mail):
Couldn't the basis for enjoining further publication be the Right of Publicity (that the mother is asserting on behalf of the child)?

--Philistine
3.24.2006 12:38pm
Stormy Dragon (mail) (www):
I have to wonder why he was even allowed to rule on this matter. Given he appears prominently in the book, it would seem to me he has a conflict of interest and should have recused himself.
3.24.2006 1:00pm
Adam J. Morris (mail):
I'm a divorce attorney in Texas, and I can tell you that it is not uncommon for family court judges to issue permanent injunctions as part of final judgments -- usually prohibiting the parties from discussing certain issues (the litigation, details of the litigation, etc.) with the child, or communicating with each other in a hostile manner.
3.24.2006 1:06pm
Roger Schlafly (www):
Kevin Thompson's book appears to be currently on sale here. Print: $20.00, Download: $9.16.
3.24.2006 1:25pm
Eugene Volokh (www):
Philistine: The right of publicity generally bars the use of others' names and likenesses in advertisements or in merchandising (e.g., T-shirts, coffee mugs, and the like). It generally does not apply to news reporting, opinion writing, biography, fiction, and the like (even when the works are sold for money). That's why it's OK, for instance, to write unauthorized biographies of others, or to broadcast news stories about them without their approval.
3.24.2006 1:39pm
R. Gould-Saltman (mail):
I'm thinking that this isn't a "right of publicity", (which is, of course, a right tied to commercial exploitation) but something more akin to the right of privacy/legal control over your child issue. (The California state constitution explicitly recognizes a right of privacy; I don't know, as I sit here, whether there is an explicit one under MA law; any discussion of whether or not there's a Federal one is not a wringer into which I'm inserting any part of my anatomy, THANK you...)

I also don't know whether MA recognizes the concept of "joint legal custody", or if the court made such an order, or made an explicit order for sole LEGAL custody to Mom.

but I'll ask the "slippery slope" question anyhow: if someone unrelated to you and your minor child talks to him on the street, takes his picture, and then proposes to publish an article, or a book, about your kid, including his picture, can you, as kid's parent enjoin him from doing so?
3.24.2006 2:11pm
Ugh (mail):
Erm, aren't there all sorts of injunctions in the copyright area prohibiting publishing books and what not? The OJ Simpson book that used a take-off of the cat in the hat comes to mind.
3.24.2006 2:15pm
Eugene Volokh (www):
Ugh: Curiously, I've actually cowritten an article on injunctions in intellectual property cases.
3.24.2006 2:21pm
steveh2:
Slightly off topic, but what about an order disgorging receipts from the sale of said book, ala Barry Bonds?
3.24.2006 2:25pm
A. Zarkov (mail):
I often wisecracked that the constitution is irrelevant in family law court, and litigants should forget it even exists. (Sometimes it almost seems that even the civil code is irreverent in family law court.) A family law judge can take your passport away; enforce religious laws, like ordering a man to give his wife a "get," or enforce a ketubah. Now it seems it can engage in prior restraint, something even the US government was not allowed to do in a matter of national security (The Progressive Case). When will the men of American fight back?
3.24.2006 2:35pm
Roger Schlafly (www):
Gould-Saltman:
if someone unrelated to you and your minor child talks to him on the street, takes his picture, and then proposes to publish an article, or a book, about your kid, including his picture, can you, as kid's parent enjoin him from doing so?
The Boston Herald has just done exactly that -- it published the above article, including the boy's picture. It is legal.

Judging from the author's description, introduction, and table of contents, the book is almost entirely an attack on the family courts. He has a lot of specifics about his case, with real names and court documents, to support his argument. It is hard to imagine a legal theory that would forbid him from telling his story about he thinks that the courts have harmed him and his boy.
3.24.2006 2:47pm
Steve Lubet (mail):
quite apart from the merits of her order (which are extremely doubtful), judge manzi had no business ruling in this case. paraphrasing the code of judicial conduct -- which i don't have handy -- it seems pretty clear that (1) a reasonable question can be raised concerning her impartiality; and (2)she has a personal interest that can be affected by the outcome of the proceeding.

given the evident acrimony, it's a safe bet that mr. thompson will file a judicial conduct complaint.
3.24.2006 2:57pm
Steve Lubet (mail):
quite apart from the merits of her order (which are extremely doubtful), judge manzi had no business ruling in this case. paraphrasing the code of judicial conduct — which i don't have handy — it seems pretty clear that (1) a reasonable question can be raised concerning her impartiality; and (2)she has a personal interest that can be affected by the outcome of the proceeding.

given the evident acrimony, it's a safe bet that mr. thompson will file a judicial conduct complaint.
3.24.2006 2:57pm
A. Zarkov (mail):
I read the preview to Thompson's book and it all sounds so familiar. But I'm afraid little will change as this state of affairs has endured for many decades. Until men lobby the legislatures, and make the politicians feel their wrath, men will be the underdogs in family law courts. After it was a lobbyist who got the California legislature to enact joint physical and legal custody as the presumption circa 1975.
3.24.2006 3:54pm
Anon1ms (mail):
I have to wonder why he was even allowed to rule on this matter. Given he appears prominently in the book, it would seem to me he has a conflict of interest and should have recused himself.

So if a defendant doesn't like a particular judge, he could just write a critical book and then have that judge removed for conflict of interest?
3.24.2006 4:22pm
dick thompson (mail):
Anon1MS,

No, he has a case though if the judge tries to suppress his book. Then it becomes a conflict of interest. The conflict isn't because he wrote the book. The conflict is because the judge tried to suppress the book that commented on that particular judge's actions. What should have happened is that another judge should have ruled on whether the book should be suppressed, not the judge who figures prominently in the book.
3.24.2006 4:44pm
wavemaker (www):
I took it to mean that the book was, er, uncomplimentary of the Judge's performance or person -- and that the judge therefore would seek to bar the author from publishing critical statements about him. That would be rather controversial, no?
3.24.2006 6:10pm
Hans Bader (mail):
It sounds like a blatantly unconstitutional prior restraint. Since it is "transparently invalid [and] has only a frivolous pretense of validity," the father should not be forced to abide by it before he can appeal it. See Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir. 1987).

It doesn't surprise me that this happened in politically-correct Massachusetts. But this is perhaps too extreme even for that state's judiciary.

If the judge tries to enforce such an order against non-parties, they won't be bound by Rooker-Feldman (since they're not parties, see Exxon Mobil v. Saudi Basic Indus. (1995)), and since the order itself is patently and flagrantly violative of the constitution, it shouldn't be covered by Younger abstention.

There is no "family law" exception to the constitution. See Orr v. Orr (1979); Troxel v. Granville.
3.24.2006 6:49pm
Steve Lubet (mail):
Hans Bader says, "It doesn't surprise me that this happened in politically-correct Massachusetts. But this is perhaps too extreme even for that state's judiciary."

what does political correctness -- by which you no doubt mean liberalism -- have to do with it? for all you know, the judge is an ultra-conservative "family values" zealot.

what we have, in fact, is an unconstitutional prior restraint coupled with an unprofessional failure to recuse. liberals, conservatives and libertarians can all agree that's bad. no need to try to inject political bias.
3.24.2006 9:23pm
R Gould-Saltman (mail):
Zarkov sez: "A family law judge can take your passport away; enforce religious laws, like ordering a man to give his wife a "get," or enforce a ketubah."

As a family law lawyer, and something of a First Amendment absolutist, I've been waiting for years for SCOTUS to take a "get statute" case from New York.
As written I simply can't see how they can find it valid.


About the only way I could conjure up (for the nice Baptist judge family law judge I clerked for) for a non-NY state family law judge to compel a get was to treat the ketubah as a pre-marital civil contract with a choice-of-forum clause in it. . .
3.24.2006 11:31pm
Hans Bader (mail):
When I said that the Massachusetts' judiciary is "politically correct," I did not mean merely that it is liberal, as Steve Lubet suggests.

Political correctness is a mean-spirited variety of liberalism characterized by intolerance and double standards.

There are many liberals who are not politically correct: the late California Supreme Court Justice Stanley Mosk, for example.

The Hawaii appellate courts are quite liberal, but they are not as politically correct, dishonest, or intolerant as the New Jersey Supreme Court or the Massachusetts Supreme Judicial Court.

The Massachusetts courts hypocritically love to pat themselves on the back for their purported commitment to equality. But they themselves engage in blatant, pervasive sex discrimination in the way they treat fathers in family court.

(Disclosure: I am not divorced, don't live in Massachusetts, and have no divorced relatives who do).

Massachusetts courts force men to pay child support for children of adulterous wives and lovers who are proven by DNA tests not to be theirs (including in one high-profile case where the adulterous mother mockingly taught the child to refer to the cuckolded "father" as "fake daddy," and got a court to award her much of her ex's salary in child support).

Child support in Massachusetts is set at between 27 and 31 percent of gross income -- of about 40 percent of net income -- for just one child, providing a huge financial windfall for the ex-wife, who typically initiates the divorce (see data from the National Center for Health Statistics, cited in Braver's book Divorced Dads (1998)).

Massachusetts courts are grossly sex-biased. They award alimony to wealthy women whose misconduct precipitated the end of the marriage, holding that even domestic violence by the wife does not bar alimony, while typically denying alimony to poor husbands who are discarded by wealthier wives they worked to put through college.

And while they ignore domestic violence by wives, the Massachusetts Supreme Court in the Edward "Zed" MacLarnon case eliminated any civil remedy for false allegations of domestic violence against husbands.

In that case, the Massachusetts Supreme Court held that wrongly-issued temporary restraining orders against MacLarnon, which were not renewed because the allegations were proven (and ultimately conceded) to be false, permanently foreclosed him from suing for abuse of process.

This is so even though it is blackletter law in nearly all states that temporary injunctions should not be accorded preclusive effect in later proceedings because of their tentative, interlocutory nature and inherently limited evidentiary basis.

The Massachusetts Supreme Court ordered Mr. McLarnon, who had himself been abused, to pay thousands of dollars in attorneys fees to the ex-wife who had falsely accused him of domestic violence in order to deprive him of the custody of his child.

In essence, it created a right to lie with impunity in domestic violence cases.

This was so even though the justices themselves noted at oral argument that McLarnon's ex-wife had lied about him abusing her.

The sanctions they imposed on McLarnon for seeking redress for the false allegations against him (and the resulting loss of custody of his son) were a violation of his right to petition the court for redress of grievances.

His claims were were clearly colorable, and thus protected by the freedom of petition. No precedent called into question the validity of his claims until the Massachusetts courts rejected them in their unprecedented and perverse ruling immunizing false allegations of abuse.

The sanctions imposed on McLarnon for seeking redress for the legal wrongs done to him were also in direct violation of the Massachusetts state constitutional provision that for every wrong there shall be a remedy.
3.25.2006 5:50pm
Nikki:
Anybody got a link to the mother's motion?

The excerpt makes it seem as if the mother protests the child's photo being used.

Being currently enrolled a photography class and having done a little reading outside the class, the law concerning use of photographs is complicated. Many parents will have encountered release forms that needed to be signed before their children could be photographed at, say, sporting events, or events where the photos used would be used promotionally.

Of course the photographer's permission must be obtained. Where the subject was also plays a result -- in some locations there is "no expectation of privacy" from being photographed. (But that's something of a separate issue.)

Parents generally control the use of their minor child's likeness. I presume a parent with sole custody is the sole arbitrator. Absent the mother's motion and/or the judge's ruling, it's hard to comment.
3.25.2006 6:25pm
RobL (mail):
This site has an open letter from Kevin and additional comments. It seems that a temporary restraining order concerning the book is now in place.
3.25.2006 8:16pm
Hans Bader (mail):
The judge purports to justify the order, which is a prior restraint and thus subject to strict scrutiny, on the mere "best interests" of the child, without any tangible showing of serious harm to the child. The argument fails. It is not proven to be narrowly tailored to any compelling state interest.

Individual U.S. Supreme Court justices have, in a number of cases, questioned whether that interest rises to the level of a compelling state interest, as would be required to satisfy strict scrutiny. And the Supreme Court has never held that best interest of the child is a compelling state interest (although preventing physical harm would surely be a compelling interest).

Best-interests of the child is a very vague standard, as justices have pointed out. Under the logic of ACLU v. Reno (1997) (indecency is too vague for its prohibition to promote a compelling interest), its vagueness means that any speech restriction based on it cannot survive strict scrutiny.

The Washington Supreme Court held that even a prior restraint against an unprotected category of speech -- an order banning a spouse who made defamatory claims of domestic abuse by the other spouse from making more defamatory claims in the future -- was invalid.

The Massachusetts judge's prior restraint is much worse, since it is a prior restraint on the publication of a book, a traditionally protected category of speech.

It is patently unconstitutional. But it wouldn't surprise me if the Massachusetts courts tried to evade the well-established rule against prior restraints by falsely claiming that it doesn't apply in cases involving privacy or children.

The Massachusetts judge may also be violating the qualified First Amendment right of access to civil proceedings (see the Second Circuit's decision in the Hartford Courant case) by impounding the case files in this case involving important issues of public concern. She seems to be trying to prevent public awareness of her unconstitutional rulings.
3.25.2006 9:35pm
Splunge (mail):
The Massachusetts courts....engage in blatant, pervasive sex discrimination in the way they treat fathers in family court.

Hmmm. Census Bureau figures also show that Massachusetts has the 3rd lowest fertility rate of any state in the Union (only Vermont and Maryland women succeed in bearing fewer children). Surely God's well-known taste for amusing irony would allow one to hope this is not mere coincidence?
3.27.2006 12:03am