By Don Schweitzer
It is common for spouses to have access to each other’s cell phones, and the messages and notes contained therein. However, disclosing the messages to others with the purpose of causing embarrassment is threatening and considered domestic violence. In the recent case of Marriage of Evilsizor & Sweeney, the Court of Appeal upheld a trial court’s issuance of a five year restraining order which prohibited the husband “from using, delivering, copying, printing or disclosing the content of his wife’s text and e-mail messages or notes, or anything else downloaded from her phone or what was considered the family computer except as otherwise authorized by the court.”
In Evilsizor, the husband read text messages and notes stored on his wife’s cell phone and when he read content he did not like, he downloaded it The husband then went to his in-laws uninvited and unannounced, and disclosed some of the messages that were hurtful to his wife’s relationship with her parents.
The parties then separated and divorce proceedings commenced soon thereafter. During the divorce proceedings the husband threatened to publicly reveal more text messages and e-mails for leverage in the dissolution proceedings. The wife claimed that as a result she suffered “extreme embarrassment, fear, and intimidation.”
After the trial court issued the five year restraining order, the husband appealed the ruling, claiming his first amendment right to free speech was violated by the order. Unfortunately for the husband, the Court of Appeal disagreed and upheld the trial court’s issuance of the restraining order. The Court of Appeal noted in the written decision that the restraining order did not constitute improper prior restraint of the husband’s free speech rights because the husband did not have a constitutional right to engage in abusive speech, which is not protected by state or federal Constitution.
A lesson to be learned from this decision is that during a divorce or the moment leading up to the dissolution, breaking into the other party’s email, social media accounts or text messages and making the information public is not a right given to the spouse based on the fact that he or she has access to such accounts.