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For the week of Mar. 8 through Mar. 14, 2000

Fair trial or free speech, that is the question

Judge bars woman from discussing marriage on national TV

Express Staff Writer

Pat Vanpaepeghem’s pending divorce from her husband is fairly typical—except for her appearance on the Oprah Winfrey show and a judge’s order barring her from discussing her husband’s conduct on TV.

Pat VanpaepeghemShe said her husband doesn’t have anything to worry about because "the show was not about him." (Express photo by David N. Seelig)

The case raises issues about the power judges wield to strike a balance between the right to a fair trial and the right to free speech.

In July, citing "irreconcilable differences," Vanpaepeghem’s husband, Rhett Vanpaepeghem, filed for divorce in Blaine County.

The Vanpaepeghems’ 15-year marriage had produced two children—a son and daughter, ages 11 and 13—a house in East Fork and a life that Pat Vanpaepeghem, 51, describes as "comfortable and predictable."

All of that was supported by a thriving insurance business that Rhett Vanpaepeghem half owns.

Enter Oprah Winfrey, or at least her producer Dana Brooks.

Pat Vanpaepeghem had written a letter to Brooks in November describing her passion for the "great old historic game of golf," and the role golf plays in her emotional health.

Brooks decided Vanpaepeghem would be a likely candidate to appear on an upcoming Winfrey segment called "Becoming Whole Again After Divorce," Vanpaepeghem said during an interview last week at a Ketchum coffeehouse.

The show would focus on three women in similar divorce situations, with a discussion about the things those women were doing to recover.

Vanpaepeghem, a "big follower" of Winfrey, said she considered Brooks’ offer "a great chance for some free therapy."

She accepted.

Rhett Vanpaepeghem discovered his wife’s intention to appear on the show, and the subject of the show, when Brooks called him for permission to use his photograph, Pat Vanpaepeghem said.

Rhett Vanpaepeghem’s lawyer, Bruce Collier of Ketchum, filed an application for a temporary restraining order with Fifth District Court on Feb. 22.

The application was aimed at keeping his wife off the Oprah Winfrey show.

Fifth District Magistrate Robert Elgee"It’s not a freedom of speech issue. If you call in a bomb threat, you can go to jail." Fifth District Magistrate Robert Elgee, suggesting that the U.S. Constitution’s First Amendment free speech guarantees are not absolute. (Express file photo)

Judge Robert Elgee ordered Pat Vanpaepeghem not to "say anything" about her husband’s "history of conduct in the marriage" on national television.

But Pat Vanpaepeghem said in the interview she didn’t receive a copy of the order until after the show was taped and aired on Feb. 23. Even if she had received the order, she said, she would have gone through with the show.

She said her husband doesn’t have anything to worry about because "the show was not about him."

In her mind, the worse thing she said about her husband on national TV was this: "I’m going through a bitter divorce."

She said her children have seen the show and "were so happy I had an opportunity to go."

The application filed in court describes the reasons Rhett Vanpaepeghem didn’t want his wife on national TV.

For one, the application said, Pat Vanpaepeghem’s making "derogatory comments" about her husband could harm "his credibility as a practicing insurance agent and it will harm his ability to generate income" and reduce the value of his company.

Rhett Vanpaepeghem declined to be interviewed by the Mountain Express.

Rhett Vanpaepeghem’s concerns could be seen as an important consideration given that the income from the insurance business could end up supporting all four family members after the divorce.

Also, the application said, Pat Vanpaepeghem’s disclosing the facts of the divorce on national TV, and "thereby disparaging and slandering" her husband, would alienate the children from their father.

Elgee said during a telephone interview last week that he acted out of concern for the family’s welfare.

"It’s not a freedom of speech issue," Elgee said, adding, "If you call in a bomb threat, you can go to jail," suggesting that the U. S. Constitution’s First Amendment free speech guarantees are not absolute.

Professor Jim McDonald, who was once an instructor of Elgee’s, said in a telephone call from the University of Idaho Law School last week that he was intrigued with the judge’s order.

"I don’t know of any other cases that aren’t criminal where a gag order has been issued," McDonald said in a telephone interview.

However, McDonald explained that judges have "a lot of leeway" when it comes to protecting the process of a trial. Elgee, he said, may or may not have overstepped the limits of his authority by basing his gag order on the need to protect the children and the insurance business—but, he suggested, that might be missing the point.

"I think he’s mistaking the basis of his power," McDonald said, adding that the power to issue gag orders is rooted in the Constitution’s Sixth Amendment, which guarantees the right to a fair trial.

In highly charged criminal cases when public exposure through the media could influence a jury pool, McDonald said, judges have sometimes issued gag orders to trial participants to prevent them from speaking to the media.

In McDonald’s experience, that usually happens with "spectacular, prejudicial murder cases."

Arguably, the problem is that the Vanpaepeghems’ divorce case is not a criminal trial. And, there’s no jury.

Elgee himself defends the order as an extension of the standard joint preliminary injunctions issued at the beginning of most divorce cases. The injunctions admonish spouses not to dispose of any jointly owned property while the case is pending and not to "vilify" each other in their children’s presence.

In his supervisory role over the case, Elgee said, he feels justified to extend the power of those limitations to Pat Vanpaepeghem’s appearance on the Oprah Winfrey show.

Elgee said issuing a gag in a divorce case is not common, "because this kind of situation doesn’t usually come up."

If Rhett Vanpaepeghem accuses Pat Vanpaepeghem of violating the order—which is possible given that she did appear on national TV—McDonald said Pat Vanpaepeghem’s lawyer would need to show that "there wasn’t a sufficient relationship between the TV show and the trial" and that Elgee "abused his discretion" as a judge by issuing the order in the first place.

Pat Vanpaepeghem’s lawyer, Tracy Dunlop of Hailey, declined to comment on the case, but said generally of the order, "It does gall me that [my client] had to spend several hours of my time and her money on it."


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