Legal Commentary

Alleged Defamation of Estranged Wife Leads to Order Not to Talk About Her, Loss of Gun Rights; Court of Appeal Reverses

By Eugene Volokh

The case is In re Marriage of Mendlowitz. The alleged slanders were an e-mail and a letter to the estranged wife?s business associates that seemed likely to interfere with her business relationships. They might indeed have led to a successful defamation lawsuit, and a lawsuit for interference with business relations. But a trial court judge went so far as to issue a domestic restraining order against such comments:

[Y]ou are disturbing the peace of the petitioner.... You have, by your own testimony, admitted to the defaming comments that you have made in these emails. And so therefore, the court is going to grant a restraining order for the next five years. You are not to contact [the wife], [her] employers, [her] potential employers in regard to [her] ... You are not to contact any third parties in regard to [the wife], her reputation, her past acts.

This meant that any prohibited speech about his wife would be a crime. And because the order included boilerplate language ordering the estranged husband not to ?harass, attack, strike, threaten, assault (sexually or otherwise), hit, follow, stalk, molest, destroy personal property, disturb the peace, keep under surveillance, or block movements,? the federal ban on gun possession by people who are the targets of restraining orders kicked in. (See PDF pp. 61?65 of my Implementing the Right to Keep and Bear Arms in Self-Defense article.)

Fortunately, the California Court of Appeal reversed the trial court?s decision, concluding that this sort of alleged defamation isn?t sufficient to justify issuing such an order. Unfortunately, for the nearly two years between the trial court decision and the appellate decision, defendant had been entirely deprived of his Second Amendment rights, and been subjected to a prior restraint in violation of his First Amendment rights.

Full post as published by The Volokh Conspiracy on March 28, 2011 (boomark / email).