Mother ordered not to say or imply that child has 'autism or developmental delays or other behavioral issues' (he apparently doesn't)

|The Volokh Conspiracy |

From J.P.W., Jr. v. A.N.H., a Pennsylvania appellate decision from last week. The child's father had been given legal custody and primary physical custody.

Father alleged that Mother exhibited "bizarre" behavior at Child's preschool and at Child's medical examinations. Father requested that the trial court order Mother to undergo a mental health evaluation. In particular, Father asserted that Mother had told the principal of Child's preschool that Child is autistic.

The court then ordered "that Mother shall cease and desist from stating to anyone or inferring that [C]hild has autism or developmental delays or other behavioral issues." (I assume that "inferring" here means "implying.") Mother challenged the order on First Amendment grounds, but the appellate court upheld the order:

Dr. Foley, Child's pediatrician, testified that there is no indication that Child is autistic or developmentally delayed. Dr. Foley further testified that Child's developmental milestones were appropriate for his age, and that he is a "normal," healthy child. Finally, Dr. Foley testified that, since Mother has been restricted from attending Child's medical appointments [which was a separate part of the order, likely consistent with the father's having legal custody -EV], there has been a noticeably positive difference in Child's behavior. The principal at JFK School testified that Mother led her to believe that Child is autistic. Child's teacher at JFK School, Matthews, testified that she has seen no developmental issues or problems with Child. A preschool teacher from Child's school, Janice Woods, testified that Mother told her that Child is autistic. Additionally, the trial court was presented with evidence that Mother told the school principal and other school officials that Child was not potty trained, when in fact the Child was potty trained.

Based on this evidence, the trial court found that Mother's untrue statements regarding Child's mental health and developmental and behavioral progress are detrimental to Child's welfare. The findings and analysis of the trial court are amply supported by the competent evidence of record. See [trial court order] (stating that "Mother's desire to disparage and defame her Child by telling others that he is developmentally delayed or that he is not potty trained is not constitutionally protected, and Mother's right of free speech cannot supersede the health, safety and welfare of her Child.").

Additionally, we conclude that the trial court chose the least restrictive means to protect the psychological well-being of Child, by narrowly proscribing that "Mother shall cease and desist from stating to anyone or inferring that [C]hild has autism or developmental delays or other behavioral issues." Based on the facts and circumstances of this particular case, we discern no error of law or abuse of discretion by the trial court, and affirm the trial court's Order as to this issue.

This is an interesting and unusual case—mother is essentially being accused of slandering her own child, and the injunction is being justified as an attempt to prevent such slander. Courts have in recent years been much more open than in the past to injunctions against defamation, once the speech has been found to be defamatory (though Pennsylvania is the one state in which the state constitution has been interpreted as generally barring such injunctions; see Willing v. Mazzocone (Pa. 1978)).

Yet whether a child has "developmental delays or other behavioral issues" isn't just a fixed historical fact; behavioral issues, especially, can arise over time, and there can be continuing disputes over what counts as a delay or issue. And though the father has legal custody, and is in charge of the child's medical treatment, the mother understandably has a continuing personal concern with the child's health and behavior—and has the power to ask the court to order treatment (or to change custody to her) if she thinks that the child does have problems that need resolving. To do that, she has to be able to talk to doctors, friends and others about what she sees as the child's problems.

So it seems to me that, even under the modern rules authorizing injunctions against defamatory speech, this injunction goes too far. But in any event, the case struck me as quite interesting, and unusual.