At a hearing on April 11, 2014, Sweeney, Evilsizor, and Evilsizor's father testified. Evilsizor testified that it had been "incredibly incredibly difficult to deal with" the dissemination of her personal information, stating, "I have sleepless nights. I'm sick to my stomach. My friends are mad at me, embarrassed as if I let him. I didn't know he was even doing any of this. My parents are upset, you know. Why did I marry him? I didn't know that things were going-I didn't know. Yeah. It's been incredibly challenging to live with." She further testified that she had suffered shock and embarrassment and feared for her safety because of the disclosure. Evilsizor also was concerned about Sweeney's threats to reveal information to the Internal Revenue Service about "things [she] didn't do."
After the close of evidence, the trial court remarked that the narrow issue to decide was whether there was a need to prevent dissemination of the information from Evilsizor's phones. It stressed, "I'm not making any conclusive decision about whether they [the text messages] were properly acquired. I'm not deciding what [e]ffect it has on attorney/client privilege or on the presence of [Sweeney's former attorney] in the case." The court concluded that even if Sweeney legally obtained Evilsizor's information, an issue left unresolved, it was authorized under the DVPA to enjoin the disclosure or threats of disclosure of the information to protect Evilsizor's peace of mind. The court ordered Sweeney be "prohibited from using, delivering, copying, printing or disclosing the messages or content of [Evilsizor's] text messages or e-mail messages or notes, or anything else downloaded from her phone or from what has been called the family computer except as otherwise authorized by the court." Sweeney also was prohibited from trying to access or otherwise interfere with Evilsizor's internet-service provider accounts or social-media accounts. The trial court's order expires on April 11, 2019. Sweeney timely appealed.
At the time Evilsizor sought and obtained the restraining order, the DVPA authorized a trial court "to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved" if evidence showed "reasonable proof of a past act or acts of abuse." (Former § 6300.) A court may issue an order enjoining specific acts of "abuse" (§ 6218, subd. (a)), which are defined as, among other things, behavior that could be enjoined under section 6320. (§ 6203, subd. (d).) Section 6320, in turn, permits a court to enjoin a party from engaging in various types of behavior, including "disturbing the peace of the other party." (§ 6320, subd. (a).) "[T]he plain meaning of the phrase 'disturbing the peace of the other party' in section 6320 may be properly understood as conduct that destroys the mental or emotional calm of the other party." (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1497 (Nadkarni).) The phrase includes "destroying the mental or emotional calm of [a former spouse] by accessing, reading and publicly disclosing her confidential e-mails." (Id. at p. 1498.)
The appellate court rejected several arguments from Sweeney. First, the court rejected Sweeney's argument that the trial court misapplied Nadkarni, supra, 173 Cal.App.4th 1483 in determining that Sweeney's actions constituted "abuse" under the DVPA. In Nadkarni, a former wife alleged that her ex-husband had accessed her private e-mail account while she was away on a business trip, then attached copies of the e-mails to documents filed in proceedings regarding custody of their teenaged children. (Id. at pp. 1487-1488.) She sought a permanent restraining order, but the trial court denied it without a hearing after finding that the DVPA did not cover situations in which there was no physical harm alleged. The appellate court reversed and remanded the matter to the trial court for a hearing. It held that the definition of abuse under the DVPA is not limited to the infliction of physical injury or assault. (Id. at pp. 1498, 1501.)
The trial court relied on Nadkarni in ruling that it was not necessary for Evilsizor to prove physical abuse to obtain a restraining order and that "the disclosure of various communications can constitute disturbing the peace of the other party within the meaning of the domestic violence statute." The court ultimately concluded that Sweeney had disturbed Evilsizor's peace under Nadkarni, "because you're going around either disclosing or threatening to disclose to third parties for no particular reason intimate details of your lives, . . . and that's what I think is happening here."
Although a lack of past physical abuse may be considered by a trial court in considering a protective order, the DVPA's definition of abuse "is not confined to physical abuse but specifies a multitude of behaviors which does not involve any physical injury or assaultive acts." (Eneaji v. Ubboe (2014) 229 Cal.App.4th 1457, 1464; see also Burquet v. Brumbaugh, supra, 223 Cal.App.4th at pp. 1142-1143, 1146-1147 [substantial evidence supporting DVPA restraining order where there was no evidence of physical abuse, but restrained party disturbed peace of ex-girlfriend by e-mailing her, sending her text messages, and showing up unannounced at her home]; Conness v. Satram (2004) 122 Cal.App.4th 197, 201-202 [no evidence of physical injury needed under DVPA].)
Second, Sweeney's reliance on S.M. v. E.P. (2010) 184 Cal.App.4th 1249 was unpersuasive. In that case, the appellate court concluded, without analyzing the "disturbing the peace" definition of "abuse" (§ 6320, subd. (a)), that the trial court's description of the restrained party's behavior did not support a finding of abuse. (S.M., at p. 12604.) In fact, the trial court's statement that it would wait to see if there were "more incidents" before it relied on the presumption under section 3044, subdivision (a) that child custody would not be in the best interests of the restrained person's child suggested the trial court believed the restrained person "would have to engage in some additional behavior before the court would find that he engaged in domestic violence." (S.M., at p. 1268, original italics.) Here, by contrast, the trial court specifically found that Sweeney's behavior fell within the DVPA.
At oral argument before the appellate court, Sweeney suggested that his conduct was not sufficiently egregious to warrant the entry of the DVPA order, especially since the order will have the particularly serious consequence of creating a rebuttable presumption in the ongoing child-custody dispute that his child's best interest would not be furthered by him being awarded custody. (§ 3044.)
But the appellate court noted that the presumption is rebuttable by a preponderance of the evidence, and the trial court can and will properly consider and weigh the evidence in the child-custody proceedings to determine whether it should be overcome, taking into account factors that may be favorable to Sweeney (§ 3044, subds. (a)-(b)), understanding that there was no finding Sweeney was physically violent, and focusing on the best interest of the child. The trial court previously has acknowledged the applicable rebuttable presumption at a hearing on April 17, 2014, when it stated that section "3044 says what it says. There is an automatic presumption. It's not a separate finding that I make. That presumption can be rebutted. And we will go through all of that at the appropriate time." (Italics added; see also Keith R. v. Superior Court (2009) 174 Cal.App.4th 1047, 1056 [domestic-violence orders "often must issue quickly and in highly charged situations" but should not be "misuse[d] . . . for tactical reasons"].)
Third, the court rejected Sweeney's argument that insufficient evidence supports the trial court's order. Although the parties disputed certain aspects of the events that led to the issuance of the restraining order, the trial court was in the best position to evaluate credibility and to resolve factual disputes, and our review of the record reveals sufficient evidence to conclude that the court's order was not an abuse of discretion. (Burquet v. Brumbaugh, supra, 223 Cal.App.4th at p. 1143.)
Fourth and finally, the appellate court rejected Sweeney’s argument that the trial court’s order was an improper prior restraint on his constitutional rights to free speech. The appellate court rejected this argument because Sweeney's ability to continue to engage in activity that has been determined after a hearing to constitute abuse is not the type of "speech" afforded constitutional protection.
The First Amendment to the United States Constitution provides: "Congress shall make no law . . . abridging the freedom of speech . . . ." "This fundamental right to free speech applies to the states through the Fourteenth Amendment's due process clause." (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 133-134 (plur. opn. of George, C.J.) (Aguilar).) " '[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.' [Citation.] 'The term prior restraint is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." [Citation.] . . . . [P]ermanent injunctions-i.e., court orders that actually forbid speech activities-are classic examples of prior restraints.' " (DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 886, original italics.) " 'The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.' " (Ibid., quoting Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) 413 U.S. 376, 390.)
"Although stated in broad terms, the right to free speech is not absolute." (Aguilar, supra, 21 Cal.4th at p. 134.) " '[T]here are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." ' " (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1147 (Lemen), quoting Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503.) Such categories include libelous speech (Lemen, at p. 1147) and words amounting to employment discrimination (Aguilar, at pp. 134-135, 141-142).
Similarly, prohibiting Sweeney from disseminating the contents of Evilsizor's phones does not amount to a prohibited restraint of protected speech because Sweeny's conduct constituted "abuse" under the DVPA. (§§ 6203, subd. (d), 6218, subd. (a), 6320, subd. (a).) Sweeney places far too much emphasis on the fact that the trial court specifically declined to address whether Sweeney illegally obtained information from Evilsizor's phones. Regardless whether the data was acquired legally, the trial court was authorized to conclude that its dissemination as we have described was abusive under the DVPA and not the type of speech afforded protection under the First Amendment. (Lemen, supra, 40 Cal.4th at p. 1147.)
Bartnicki v. Vopper (2001) 532 U.S. 514, upon which Sweeney relies, does not compel a contrary conclusion. There, an unidentified person unlawfully intercepted and recorded a telephone call between the president of a local teachers union and a union negotiator involved in contract negotiations with the school board, and several media outlets published the contents of the recording even though they knew or had reason to know the conversation had been illegally obtained. (Id. at pp. 518-519.) The Supreme Court held that under the circumstances the valid privacy interests in a private conversation gave way to the First Amendment protection of truthful speech about a matter of public concern. (Id. at pp. 533-535.) The court specifically declined to address whether the First Amendment would protect unlawfully intercepted messages concerning "domestic gossip or other information of purely private concern." (Id. at p. 533, italics added.) "In doing so, the court recognized that the First Amendment interests served by the disclosure of purely private information . . . are not as significant as the interests served by the disclosure of information concerning a matter of public importance." (DVD Copy Control Assn., Inc. v. Bunner, supra, 31 Cal.4th at p. 883 [affirming preliminary injunction enjoining party from posting on the Internet trade secrets regarding licensed DVD encryption technology].) Here, Sweeney has not identified any public concern in Evilsizor's text messages and other information that he surreptitiously took from her phones.
Sweeney's comparison of this case to situations where parties obtain information from independent sources also misses the mark. He relies on In re Marriage of Candiotti (1995) 34 Cal.App.4th 718, where the trial court entered an order barring an ex-wife in a custody-and-visitation proceeding from disseminating information obtained about her ex-husband's new wife that was acquired both during discovery and also from independent sources. (Id. at pp. 719-721.) Division Three of this court affirmed the portion of the order protecting disclosure of material obtained through discovery. (Id. at p. 726.) As for the portion of the order banning dissemination of material acquired through independent sources, however, the court reversed, holding that the order infringed on the ex-wife's freedom to speak freely about another adult. (Id. at pp. 724-725.) Although it is not entirely clear how the ex-wife obtained the objectionable information, there was no suggestion that it was obtained improperly. (Id. at pp. 720-721 [ex-wife "investigated . . . allegations" learned through anonymous telephone call and "obtained information about [new wife's] driving and personal history"].) Here, by sharp contrast, the trial court determined that Sweeney "committed acts that are restrainable under the [DVPA]." Whether this was a reference to the way in which the data was gathered or the manner in which Sweeney disseminated (or threatened to disseminate) it, we do not believe this abusive conduct is the sort of "independently secured information" to which the Candiotti court afforded constitutional protection. (Id. at p. 722.)
Furthermore, the trial court determined that Sweeney's actions amounted to abuse under the DVPA after a contested hearing. This distinguishes the present case from those in which trial courts enjoined speech before a determination was made that the speech was unprotected. (See, Evans v. Evans (2008) 162 Cal.App.4th 1157, 1161-1162 [the injunction was overbroad and amounted to an invalid prior restraint before trial]. (Id. at pp. 1161-1162; see also Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1145-1146 [preliminary injunction entered before trial that prohibited ex-husband from discussing allegedly defamatory comments about his former spouse, a famous actress, amounted to invalid prior restraint].) The Evans court emphasized, however, that a court may prohibit a party from repeating statements determined at trial to be defamatory, because defamatory statements are not subject to protection under the First Amendment. (Evans, at p. 1162.) Here, the trial court entered an order after a contested hearing where it determined Sweeney committed abuse under the DVPA.
This approach is consistent with well-settled First Amendment jurisprudence. "[A]n injunctive order prohibiting the repetition of expression that ha[s] been judicially determined to be unlawful d[oes] not constitute a prohibited prior restraint of speech." (Lemen, supra, 40 Cal.4th at p. 1153.) For example, following a court trial in Lemen, the trial court determined that the defendant had defamed a restaurant and bar, and it entered a permanent injunction prohibiting the defendant from repeating the defamatory statements. (Id. at pp. 1144-1146.) The Supreme Court held that "an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment." (Id. at p. 1148.) " 'Once specified expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution.' " (Id. at p. 1156.) Likewise in Aguilar, supra, 21 Cal.4th 121, the Supreme Court held that where there has been a judicial determination that the use of racial epithets constitutes employment discrimination, an injunction prohibiting the continued use of those slurs does not violate the right to freedom of speech and does not amount to a prohibited prior restraint of speech. (Id. at pp. 126, 140.)
Thus, the appellate court concluded that the trial court’s order did not violate Sweeney's constitutional rights to free speech.
copyright © 2015 Christine Esser
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