On July 27, Melissane Velyvis successfully argued that a Domestic Violence Protective Order (the Order) was an unconstitutional prior restraint on her freedom of expression. Marin County Superior Court Judge Roy O. Chernus sustained Velyvis’ demurrer to a misdemeanor complaint brought against her for violating the Order in People v. Velyvis, Case No. CR211376A.
The Order prohibited Ms. Velyvis from posting anything on social media, blogs, or the internet regarding her ex-husband, Dr. John Velyvis, or his children. Dr. Velyvis applied for an order to curb posts on Ms. Velyvis’ blog, The Voice of Melissane Velyvis, which detailed the domestic abuse she allegedly suffered at the hands of Dr. Velyvis, and other events leading up to and resulting from the couple’s divorce. The blog describes Ms. Velyvis as a “survivor of non-fatal strangulation.”
In granting the Order, a family law judge reasoned that “while recognizing an individual’s freedom of expression, in connection with [the Velyvis’ marriage dissolution] and given the relationship qualifying for a domestic violence restraining order, the court has found the statements to have been made for the purpose of harassing [Dr. Velyvis], damaging [his] reputation, interfering with [his] professional livelihood and damaging [his] personal relationships.”
The state later brought a misdemeanor complaint against Ms. Velyvis for violating the Order. In response, Ms. Velyvis contended that the language of the Order unlawfully prevented her from “sharing her life experiences and feelings she attributes to her marriage to petitioner with her family, friends and other adults willing to read her comments and criticisms.” The court agreed with Ms. Velyvis and held the Order to be an unconstitutional “prior restraint,” violating California’s right to freedom of expression and the First Amendment of the United States.
Prior restraints on speech are heavily disfavored both federally and in the state of California. Indeed, California courts require “extraordinary circumstances” before a prior restraint may be imposed, and prior restraints are generally permissible only if necessary to “protect private rights” and further a “sufficiently strong public policy.” See Molinaro v. Molinaro, 33 Cal. App. 5th 824, 831-82 (2019). The United States Supreme Court has emphasized that “a prior restraint. . . has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” CBS v. Davis, 510 U.S. 1315, 1317 (1994). Similarly, the Ninth Circuit has warned of the “peculiar dangers” of such restraints. Levine v. U.S. Dist. Court for Cent. Dist. of California, 764 F.2d 590, 595 (9th Cir. 1985). Notably, the family court’s finding that Ms. Velyvis’ statements about Dr. Velyvis were “intentionally harassing, damaged his reputation and interfered with his personal relationships” was insufficient to justify such a broad prohibition on Ms. Velyvis’ speech.
The Marin Superior Court’s decision in People v. Velyvis (Case No. CR211376A) aligns with California’s stringent protection of freedom of expression and sets a precedent that privacy concerns associated with domestic violence restraining orders may not be sufficient to overcome the restrained party’s right to free speech.