By Mike Stetzer
As American culture continues making its way into the 21st century, the American people growing ever more dependent on the Internet for access to the world and more embroiled in its many uses in each part of our daily lives, our constant clash in applying old laws to new technologies will no doubt come to a decisive head.
However, until then, we continue to plod along in fits and starts, with issues as important as constitutional rights dependent on centuries of application to real-world situations that are being challenged by the new technology.
Blogging, for instance, has put free speech rights guaranteed by the Bill of Rights under fire. Recent legal cases have questioned the constitutionality of blogging anonymously, and whether or not bloggers have the same rights to writing under a pseudonym that print writers enjoy.
However, the judge in a divorce case has ordered one of the marital partners to stop blogging about the divorce, a sanction that has some wondering if the judge might be violating constitutional rights protecting free speech.
As the New York Times reports, William Krasnansky of Vermont has been ordered by Judge Thomas Devine to stop posting on his personal blog concerning his failing marriage to Maria Garrido and to take down posts from the past that Garrido's lawyer claimed were "inaccurate, derogatory, defamatory and inappropriate."
Though Krasnansky did take the step of calling the blog a "fictionalized" account of his marriage, the charges of defamation likely won't be stopped if readers of the blog were all too aware of the truth of their claims. The fact that it is reported that Krasnansky published excerpts from his estranged wife's personal journals likely won't help his case, either.
But this injunction in family court against blogging has raised some eyebrows among First Amendment scholars, who have suggested that the judge's order sounds suspiciously like prior restraint and would be too broad to be constitutional, without a hearing or trial on the matter.
More frightening is the lack of surprise by Duke University law professor Erwin Chemerinsky, who reported that in his experience, "courts are issuing injunctions to stop negative speech," a practice that the Supreme Court has not ruled on as of yet.
The Krasnansky-Garrido case certainly bears more watching, since, though it may not be a landmark decision that will affect many other divorce or free speech cases, is a perfect example of a trend in courts toward curbing speech that may or may not be constitutional.