Injunction Against Referring to Ex-Wife and Children in Online Media Violates First Amendment

An excerpt from a long Washington Court of Appeals decision approved yesterday for publication, Asbach v. Couto (Judge Bradley Maxa, joined by Chief Judge Bernard Veljacic and Judge Erik Price):

Couto and Karina divorced in 2012. Since then, Couto has had multiple DVPOs [Domestic Violence Protection Orders] issued against him regarding Karina, [his now-adult son] Aiden, and [his minor daughter] NC. Testimony in these cases and previous DVPO proceedings show that Couto frequently screamed at his family, threw things, waved a knife around, and engaged in other coercive, aggressive, and emotionally manipulative behaviors. Aiden’s DVPO expired when he became an adult in 2023.

In 2024, Couto published a YouTube video in which he attempted to reach out to Aiden now that he was an adult. In the video, he stated that Karina had a narcissistic personality disorder and lies. Couto characterized this video as an attempt at reconciliation with Aiden.

Karina filed petitions for another DVPO for herself and to renew the DVPO for NC. Aiden also filed a petition for a DVPO based on the YouTube video and an allegation that Couto had intentionally shown up to Aiden’s workplace and at a grocery store where NC was.

The trial court granted the DVPOs for Karina and Aiden. The court also renewed the DVPO for NC for one year, to which Couto had stipulated. The court found that Couto’s YouTube video was a form of coercive control. The court’s DVPOs required Couto to remove any YouTube video regarding Karina, Aiden or NC [the removal order wasn't challenged -EV], and prohibited him from posting or sharing any videos or other media with references to them.

We hold that (1) the trial court did not abuse its discretion in granting DVPOs to Karina and Aiden, and (2) the trial court did not err in granting attorney fees to Karina for the renewal of NC’s DVPO. However, we hold that the trial court must modify the prohibition against posting videos and other media to be more narrowly tailored so as to not violate Couto’s First Amendment rights….

Couto argues that the portion of the trial court’s orders that prohibit him from posting, sharing, or transmitting any videos or other media that refer to Karina, Aiden, or NC violates the First Amendment. We agree that the trial court’s orders must be modified to alleviate any First Amendment concerns….

The trial court’s orders specifically prohibit Couto from posting media “which refers to the petitioner or the parties’ children, whether by name or otherwise, in any manner whatsoever.” This is a content-based restriction because it “applies to particular speech because of the topic discussed or the idea or message expressed.” Couto specifically is prohibited from discussing the topic of his children and Karina….

Here, we conclude that the State has a compelling interest in the prevention of domestic violence and the prohibition of conduct that is logically connected to a civil protection order.

But the trial court’s DVPOs are not narrowly tailored to the type of conduct the orders aim to prohibit. The orders prohibit Couto from discussing his estranged family in any manner whatsoever. As such, the orders reasonably can be read to prohibit Couto from ever acknowledging that he was previously married or has children. Couto also is prohibited from a more general discussion of parenting. And the orders are not limited by the type of medium through which Couto seeks to express his speech. Arguably, Couto could not email a friend about his children or former wife. {Couto states in his brief that he posts online about his experiences with the family court system and his view that the courts express systemic bias towards fathers. The trial court’s order also would prohibit Couto from discussing his personal experience as a method of advocacy, which is political speech that the First Amendment protects.} Therefore, we conclude that the trial court’s orders are not narrowly tailored to the DVPO and violate the First Amendment.

Orders that are narrowly tailored to Couto’s conduct must be entered on remand. Here, the trial court found that Couto’s YouTube videos were a form of domestic violence that were intended to generate hostility between Aiden and Karina or threats to divulge personal information. Such communications are unprotected speech.

On remand, the trial court should craft revised orders consistent with the discussion above. The orders may prohibit speech that constitutes coercive control or other types of domestic violence, but should protect Couto’s First Amendment rights to the extent that his speech does not constitute coercive control or domestic violence. We appreciate that the existing orders generally reflect this balance; however, clarity in what conduct is permissible would alleviate the risk of violating Couto’s First Amendment rights.

Accordingly, we hold that the portions of the DVPOs prohibiting Couto “from posting, sharing, transmitting, to third parties or the like any videos or other such media which refers to the petitioner or the parties’ children, whether by name or otherwise, in any manner whatsoever” are not narrowly tailored to serve a compelling government interest and violate the First Amendment. On remand, the trial court must amend the language of its orders consistent with the discussion in this opinion….

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