Reconciling a Parent’s Constitutional Free Speech Rights with the Domestic Violence Prevention Act

Earlier this year, on February 26, 2019, the Second District Court of Appeals filed a case[i] (not published in the official reports) finding that part of a restraining order prohibiting a parent from posting anything about his divorce case on Facebook constituted an overbroad, invalid restraint on his freedom of speech. While courts and parties cannot cite this case,[ii] we discuss it here because of the interesting discussion it contains re balancing the protection of children from animosity between their parents and the free speech rights of those parents.


Family Code sections 6200 through 6460 set forth the Domestic Violence Prevention Act (“DVPA”).[iii]  Under the DVPA, a court is authorized to issue a protective order “to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved” upon “reasonable proof of a past act or acts of abuse.”[iv]


Abuse includes “`engag[ing] in any behavior that has been or could be enjoined'” under section 6320.[v] Behavior that may be enjoined under section 6320 includes stalking, threatening, and harassing.[vi]


“A court may also enjoin `disturbing the peace of [another] party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.'”[vii] A party is not required to show he or she suffered a physical assault because section 6320 provides that the requisite abuse need not be actual infliction of physical injury or assault.


While the Molinaro court found sufficient evidence to support the lower court’s issuance of a domestic violence restraining order, it concluded that the part of the order prohibiting the husband from posting “anything about the case on Facebook” to be overbroad and to impermissibly infringe upon his constitutionally protected right of free speech.


The court explained that the record showed that the husband’s “Facebook posts were not specifically directed to the minor children, but in many cases invited comments from [his] adult friends and extended family, some of whom urged him not to dwell on the divorce, while others suggested he seek legal representation.” Further, the court noted that most of the husband’s earlier posts had expressed despair about the divorce and his separation from the children, but did not directly disparage his wife or openly seek to alienate her from the children. The court found that posts of that nature were “too attenuated from conduct directly affecting the children” to support a prior restraint on the husband’s right to free speech.


Where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests. The Molinaro court thus found that the part of the restraining order prohibiting the husband from posting about the case on Facebook did not meet this test. The court concluded the restraining order was thus overbroad, constituting an invalid prior restraint, and had to be stricken from the domestic violence restraining order.


While posting about ongoing divorce proceedings on social media is likely not in the best interests of a party, parties do have a constitutional right to freedom of speech. Thus, absent evidence that the postings affect the parties’ children, the Molinaro case suggests that restraining orders cannot contain blanket restrictions on a party’s ability to post online. Rather, any restriction in the order must be necessary and narrowly tailored to achieve its goal of protecting the children.


[i] Molinaro v. Molinaro, Cal: Court of Appeal, 2nd Appellate Dist., 3rd Div. 2019.

[ii] California Rules of Court, rule 8.1115(a).

[iii] Family Code § 6200.

[iv] Family Code §§ 6220, 6300; In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 225, 228; Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 782.

[v] In re Marriage of Davila & Mejia (2018) 29 Cal.App.5th 220, 226.

[vi] Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.

[vii] Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.