Susan Powell’s family files suit to keep journals off Web permanently

[quoted, as legal expert on First Amendment privacy law and defamation law, by The Salt Lake Tribune 09-02-11]

To one family, the diaries are a reminder of a missing daughter whose husband has seemingly trampled her reputation since she disappeared.

To another family, childhood journals of Susan Cox Powell show evidence that points to why the 28-year-old mother of two vanished inexplicably on Dec. 6, 2009 — and why the public should stop asking them what happened to her.

Now, a Washington judge is set to wade into family discord between Powell’s two families. Susan Powell’s parents, Chuck and Judy Cox, have filed a civil lawsuit against her husband, Josh Powell, and several of his relatives who have maintained a website at http://www.susanpowell.org and threatened to post entries from an estimated 2,000 pages of childhood diary entries retrieved from the woman’s possessions.

For months, http://www.susanpowell.org has been a sounding board for the Powells to air frustrations connected to the search for Susan Powell — in particular, with what they see as “attacks” from the Coxes and Josh Powell’s sister Jennifer Graves, who all have questioned whether Josh Powell has provided West Valley City police with all he knows about his 28-year-old wife’s disappearance. The site took a racier turn when the Powells posted an entry that suggested Susan Powell may have run away with Steven Koecher, a St. George man who was last seen in Henderson, Nev., days after Susan Powell disappeared.

And the Powells’ website reached new heights of controversy last month when Steve Powell announced plans to publish excerpts from Susan Powell’s childhood journals to show she had a history of mental instability and was capable of leaving her two young children behind to start a new life with another man.

Her family in Washington immediately fought back, calling the Powells’ plans to post the woman’s childhood diaries an invasion of privacy. The Coxes retained high-profile Seattle attorney Anne Bremner to represent them in the case filed in Tacoma’s Pierce County Superior Court, where they won a small victory Aug. 26 when a judge temporarily barred the Powells from publishing Susan Powell’s diaries online.

The order stated that Josh and Steve Powell — in addition to Josh’s siblings Alina and Michael — must stop posting entries and remove the woman’s diaries from the website. They also were ordered to stop disseminating copies of Susan Powell’s journals to the media.

But a temporary restraining order is a far cry from a permanent injunction: a legal order that would prevent the Powells from continuing to post what the Coxes view as inflammatory entries on http://www.susanpowell.org. A hearing on the issue is scheduled for Sept. 9.

The judge may be hard-pressed to grant such a request, said David Fischer, an attorney and adjunct professor at Loyola Law School in Los Angeles.

“The courts and Congress, for that matter, have seen that the Internet is this great new vehicle for robust free speech and they don’t want to chill free speech on the Internet,” said Fischer, an expert on invasion-of-privacy issues. He added that the legal system isn’t set up to stop defamation before it happens. “We do not restrain people from saying really bad stuff. Rather, we allow them to say it, then we sue them for defamation.

“Until that happens [a defamation suit], it is very hard to restrain [people] from publishing something defamatory,” he said. “I think it will be a challenge for the family to stop [the Powells] from publishing.”

Fischer said attorneys for Josh Powell can argue that Susan Powell did not have a “reasonable expectation of privacy” when she left her journals in her home. And because the two were married, there’s a possibility that she shared her diaries with her husband, essentially making the materials Josh Powell’s property, too.

“Let’s say I am married to you and you have a diary. In my relationship with you as husband and wife, how did I get my hands on the diary? How do I know where your diary is? How did I find it? Did I go into your drawers where you keep your personal clothing? If you shared with me as your husband your diary, it’s kind of mine, too,” he said.

“If I can make the argument that the diary is my right also, it gives me more right as the husband of Susan Powell to post it.”

Bremner plans to argue on behalf of the Coxes that the family has suffered mental anguish as a result of their daughter’s diaries being posted on the website, and that they will suffer irreparable harm if the postings continue.

“There’s been so much out there right now that’s untrue that’s been put forth by Steven and Josh Powell,” Bremner said in an interview with a Seattle radio station. “Susan was a teenager with these journals. It doesn’t show anything. She was a good wife and a good mother who would have never left her children.”

Cox said this week he believes he can successfully argue he has suffered personal anguish as a result of the Powells’ website.

“You have the right to your privacy. If daddy gave you a spanking or whatever, if husband and wife yell at each other, most people don’t want that on the evening news,” Cox said. “[Susan Powell’s diaries refer] to me, my wife, my daughter, her sisters … it’s an invasion of our privacy. Susan never authorized that and we never authorized that and it’s a violation of our constitutional rights.”

At least two journal entries were sent to The Salt Lake Tribune by Steve Powell. Several other media outlets across the country also received emails containing the documents. Written on school notebook paper, the entries are dated from 1996 to 1998 — when Susan Powell was 14 to 16 years old — and discuss typical teenage angst: fights with parents and schoolyard crushes.

Steve Powell, however, has said that his daughter-in-law’s diaries show she was emotionally abused by her parents. He points to a diary entry in which Susan Powell wrote about taking too much ibuprofen, which Steve Powell has characterized as a suicide attempt.

Cox has said that his daughter did take too much over-the-counter headache medicine on one occasion as a teenager, and the family took her to an emergency room. She was released, and the episode was not a suicide attempt, he said. Susan Powell wrote in her journal that she had not tried to kill herself, but rumors had spread around school, which frustrated her.

The Powells have removed some entries from http://www.susanpowell.orgfollowing the judge’s order, including an entry penned by Brittainy Cornett, one of the woman’s high school friends. Cornett wrote that she was sorry Susan Powell had gotten into an argument with Powell’s mother when the two made dinner together. Steve and Josh Powell alleged that the letter showed Judy Cox “emotionally abused” her daughter — claims disputed by the Coxes and their attorney.

Fischer said another challenging aspect of the Coxes’ case against the Powells is Susan Powell’s unknown fate. He cited cases of families whose loved ones died in the 9/11 terrorist attacks who successfully sued to not have recordings of their loved ones’ last words aired. But those cases may be more sympathetic to a court than Susan Powell’s case, which remains a mystery, he said.

“We do have a concept of invasion of privacy in the case of a dead person. There are issues of emotional distress for living family members,” Fischer said. “Who knows whether [Susan Powell] is lost, who knows whether she’s kidnapped, who knows whether she’s dead? It may be a reason for a judge to say, ‘I’ll let you publish a certain amount of stuff, but I’m going to put under court seal certain things that I will decide you cannot publish.’ It’s up to the judge.”

mrogers@sltrib.comTwitter: @mrogers_trib —

What’s next?

P Judge Vicki L. Hogan, of the Pierce County Superior Court in Tacoma, Wash., will consider whether to grant an injunction requested by Chuck and Judy Cox. The Coxes want to stop their daughter’s in-laws, including her husband, Josh Powell, and his father, Steve Powell, from posting excerpts of her childhood diaries online at a website they maintain at http://www.susanpowell.org. The court last month issued a temporary restraining order that bars the Powells from publishing Susan Powell’s diary entries and mandated them to stop disseminating entries to the media.

The judge will consider making the temporary order permanent. A hearing on the issue is scheduled for Sept. 9. —

About the case

R Susan Powell, 28, disappeared Dec. 6, 2009, from her West Valley City home and was reported missing Dec. 7 after she failed to show up to work. Her husband, 35-year-old Josh Powell, has said he took his young sons, then ages 2 and 4, on a late-night camping trip to Simpson Springs in Tooele County, and when he returned, his wife was gone.

Josh Powell gave two interviews to police shortly after the disappearance but has not spoken to them since. West Valley City police call him the only person of interest in the case. Josh Powell and his sons moved back to Puyallup, Wash., to live with his father just weeks after the disappearance.

Josh Powell and his father, Steven Powell, have said they think Susan Powell ran away and is still alive. They’ve suggested she went to Brazil with Steven Koecher, a Utah man who disappeared from Henderson, Nev., around the same time Susan went missing.

West Valley City police last month went to Ely, Nev., to search abandoned mine shafts after receiving “information” related to the Powell case. They didn’t find anything, but called the search effort “a success.”

Josh and Steve Powell have repeatedly clashed with Susan Powell’s parents, Chuck and Judy Cox.

Last month, a Washington state court commissioner ordered Josh Powell and Chuck Cox to keep 500 feet away from each other. Josh Powell sought the restraining order against Chuck Cox, claiming that his father-in-law threatened him at a Lowe’s store and mouthed, “You’re dead.” Chuck Cox said he merely asked his son-in-law if he could hug his grandchildren.

The court order bars the men from stalking or harassing each other, and keeps Cox from going within 500 feet of the school attended by his grandchildren.

Following the trip to Ely, West Valley City police served a search warrant on the Puyallup-area home of Josh and Steve Powell. They retrieved computers and several boxes of evidence, and now are sorting through the items, said West Valley City Police Lt. Bill Merritt. —

Who is Anne Bremner?

Seattle attorney Anne Bremner, who has signed on to represent Chuck and Judy Cox in their legal fight against the husband and father-in-law of missing mother Susan Powell, has been involved in a number of high-profile court cases during her 27-year career.

Among the most recognizable cases: Bremner defended the city of Des Moines, Wash., and the Des Moines Police Department in a civil case stemming from Mary Kay Letourneau’s sexual relations with a 13-year-old student. After a 10-week trial in 2002, the King County Superior Court ruled the city and police were not negligent for allegedly failing to protect the boy from the teacher.

She has served as a legal analyst on programs on CNN and MSNBC, according to her website, annebremner.com.