Georgia appellate court overturns custody order that barred both parents from commenting about the case

|The Volokh Conspiracy |

A few weeks ago, the Georgia Court of Appeals handed down an interesting decision in Baskin v. Hale; if the facts are as the appellate court describes—and I have no reason to doubt them—the trial judge's actions were patently unconstitutional.

1. Shannon Baskin and Gary Hale, who never married, have two sons who are about 8 and 11. Shannon also has a daughter from an earlier relationship, who is about 14, and whom Hale helped raise. A family court had provided that Baskin and Hale would have joint custody of all three children.

2. In April 2015, while the parties were disputing some matters related to custody, Judge J. David Roper

entered a final custody judgment, awarding the parties joint legal custody of all three children, with Hale having primary physical custody, and granting Baskin visitation with them every other weekend, one afternoon each week, on alternating holidays, and every other week during the summer. The court concluded in the order, that, among other things, Baskin "interfered with Hale's rights to [the older son] and [the daughter]"; Baskin "engaged in a pattern of parental alienation" and "defied orders of [the] court"; "Baskin's household is chaotic and unstable[, and s]he cannot control [the daughter]"; law enforcement had been called to the Baskin residence at least six times during the pendency of the litigation; "[t]he children are unsafe in Baskin's primary care"; "Baskin is controlling, manipulative, recalcitrant[,] vindictive[, and not … truthful"; and "Hale appears to maintain a stable household [and to be] capable of providing … [the] structure and stability" that "A.W. desperately needs."

And Roper also imposed a speech restriction on the parties:

The [trial] court noted … that it had previously entered a "gag order" in the case after Baskin made "derogatory and disparaging comments" on social media about Hale, the court, and the proceedings, which comments the court concluded were "detrimental to the parties' minor children [ ] and intimidating to the parties." The court also concluded that, in an effort to intimidate the court and "invite the attention of the media to this case," Baskin had filed a motion to recuse, as well as a complaint in federal court to enjoin enforcement of the gag order. Thus, the court ordered, in relevant part, that [paragraph breaks added]:

[Baskin, Hale], their attorneys, and the [GAL] are hereby restrained and enjoined from putting, placing[,] or causing to be placed any information concerning this custody case upon or in any social media, website, or other public medium.

The parties are restrained and enjoined from, directly or indirectly, putting, placing, or causing to be placed any disparaging or derogatory comments about the opposite party upon or in any social media, website, or other public medium.

The restrictions of this paragraph include restricting the persons named or referred to from speaking or corresponding with any print, radio[,] or television media about this case.

This restriction shall extend until [W. H.] attains the age of 18 years.

[The parties] and their attorneys are hereby restrained and enjoined from putting, placing[,] or causing to be placed any allegation that any transcript in this case has been altered upon or in any social media, website, or other public medium, or speaking or corresponding with any print, radio[,] or television media about any such allegation. This issue was adequately addressed in this court's Final Order Denying Production of Audio Recordings, entered April 23, 2015. Any allegation that this court's reporter's transcript of the July 11, 2014 [hearing] is flawed is frivolous, and without any foundation in law or in fact….

3. The Georgia Court of Appeals held this violated the First Amendment (emphasis added):

Prior restraints of speech, such as the order here, are not unconstitutional per se, but they bear a "heavy presumption against [their] constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint." An attempt to effect a prior restraint is subject to "exacting scrutiny." The United States Supreme Court has instructed that:

[p]roperly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State's interests should also be weighed.

Reviewing the injunction in this case, we conclude that the superior court failed to properly balance the danger flowing from the prohibited speech with the parties' and attorneys' First Amendment rights. The superior court did reference its finding in the temporary restraining order that it balanced Baskin's First Amendment rights with "the rights of the children not to have derogatory and disparaging comments posted in a public forum concerning their parents and the rights of the children [not to] have details concerning their family's legal issues placed in a public forum," finding that "placing derogatory and disparaging remarks in the public forum … concerning the opposite party and/or placing details concerning this litigation in the public forum is detrimental to the parties' minor children … and intimidating to the parties." The court, however, failed to share the basis of such a conclusion, pointing to no evidence regarding the negative affect that such speech had on the children, and it made no attempt to find that the injunction was narrowly tailored to protect any compelling interest.

We further note that although Hale filed a motion for the temporary restraining order subsequently issued by the court, he did not move for a permanent restraining order. Instead, the trial court issued the permanent injunction sua sponte, referencing a motion to recuse filed by Baskin, as well as an action she filed in federal court seeking to overturn the temporary order, noting that her actions "[were] an obvious attempt to intimidate the [judge]."

Our review of the order, the record, and the transcript of a status conference indicates that the trial court was primarily concerned with Baskin's public criticism regarding the litigation, including the court's rulings, as well as the involvement of third parties who, among other actions, questioned the accuracy of court transcripts.

[Footnote: For example, at a status conference, the superior court told Baskin: "I am also concerned—this does not—it really doesn't affect you very much, but I am also concerned—I'm more than concerned. I'm hacked off, if you want to know the truth, about people meddling in my cases. And that's what I've got going on here. … These [third parties] people who have injected themselves and are undermining the judicial process. And when you take them and then you add it to the comments [you made on a website seeking funding for your attorney fees in which you state you have been railroaded], it looks like one could believe that there is something that is corrupt about the system. I take offense to that. … And we're going to have a judge's meeting tomorrow. We're going to get to the bottom of this issue, of people undermining the judicial system."]

As the United States Supreme Court has stated,

[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives judges as persons, or courts as institutions no greater immunity from criticism than other persons or institutions. The operations of the courts and the judicial conduct of judges are matters of utmost public concern.

Certainly, we recognize the authority granted to trial courts to restrict a parent's communications and postings on social media during the pendency of a divorce or custody proceeding, as the trial court did in Lacy v. Lacy (Ga. Ct. App. 2013). But we cannot condone the superior court's attempt in this case to restrict the parties' and lawyers' right to publically criticize the court and the litigation for the next ten years. Given the absence of any evidence of "imminent danger to a compelling interest of such magnitude that the restraint on the parties' [and lawyers'] speech would be warranted" [citing In the Interest of R. J. M., 133 So3d 335, 346 (II) (Miss. 2013),] as well as the superior court's failure to properly conduct the balancing test and narrowly tailor the restrictions, we vacate the permanent injunction issued in this case.

[Footnote: See also In re Interest of T.T., 18 Neb. App. 176, 198 (779 NW2d 602) (Neb. 2009) ("In the end, we must conclude that the evidence is simply insufficient, absent conjecture and speculation which we cannot engage in, to satisfy the State's heavy burden to justify this prior restraint on free speech and to overcome the heavy presumption of unconstitutionality of a prior restraint on speech. There is no evidence proving imminent harm to [the child in the custody case] of a magnitude that justifies a prior restraint on free speech. Therefore, we vacate that portion of the juvenile court's order … preventing the parents from disclosing information about [the child].").]

Sounds right to me, though I am even more skeptical than the court of the propriety of any such restrictions (such as the ones in Lacy).