The Volokh Conspiracy
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Mother Forbidden from Mentioning Her Own Name in Criticizing Custody Decision—and the Penn. S. Ct. Upholds This
The Pennsylvania Supreme Court 5-2 majority concludes that the injunction is "content-neutral," quite erroneously, I think.
The father (S.B.) and mother (S.S.) of a child (who is now 14 years old) were involved in a protracted child custody dispute, in which the child (who was 10 at the time of the custody decision) accused the father of sexual abuse. The trial court rejected the accusations, and granted the father sole custody:
[T]he trial court concluded that Father did not sexually abuse Child. The court reached this conclusion after evaluating Child's testimony in open court; reviewing videos of forensic interviews in which Child made detailed allegations of purported sexual abuse; reading Child's testimony in the PFA proceeding, which had been introduced into the record of the custody trial; listening to the testimony of experts who evaluated Father; and considering the testimony of witnesses who had observed the nature of the relationships between both Father and Child and Mother and Child, before and after the allegations were made. The trial court explained that the details of Child's in-court descriptions of the alleged sexual abuse were not credible and that the timing of the allegations were suspect, i.e., they arose shortly after Father's partial custody time had been expanded.
To be precise, the trial court did not believe that Child deliberately lied. Rather, the court reasoned that Child may have believed that abuse occurred years earlier, but Child's testimony contained statements that were "simply not true and which [were] contradicted by other credible evidence." The trial court further relied upon expert testimony, establishing that Father "is a low risk to perpetrate physical, psychological, emotional, or sexual abuse." Finally, the trial court concluded that Mother had isolated Child from everything he knew before she adopted him, and alienated Child from Father, as well as Child's extended family. [Father and his first wife had adopted, and when Father married Mother after the first wife's death, Mother adopted him in turn.-EV]
The mother and her lawyer (Richard Ducote) then began publicly criticizing the court decision; they had a press conference, and there was indeed some local newspaper coverage of the controversy:
While Child was not named during the press conference, Attorney Ducote identified Mother by name and, notably, included a link providing access to a reproduction of Child's in-court testimony and forensic interview, during which Child sets forth detailed allegations of Father's sexual abuse, which the trial court had deemed unfounded. Mother's name is included in these documents, while Child's name is redacted and replaced by the first letter of his first name. However, Child obviously could have been identified by virtue of the disclosure of Mother's identity….
The trial court then ordered,
It is hereby ORDERED that [Mother]; Richard Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications. The following is also ORDERED.
- [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall NOT direct or encourage third parties to speak publicly or communicate about this case including, but not limited to, print and broadcast media, on- line or web-based communications, or inviting the public to view existing on- line or web-based
- [Mother]; Richard Ducote, Esquire; and Virginia McIntyre may provide public testimony in the State House and/or Senate and in the United States Congress and Senate about parent alienation, sexual abuse of children in general or as it relates to this case. However, in providing such testimony, they shall NOT disclose any information that would identify or tend to identify the Child. [Mother] shall NOT publically state her name, the name of the Child or [Father's] name. Attorney Ducote and Attorney McIntyre shall NOT publically refer to [Mother], the Child, or [Father] by name or in any manner that would tend to identify the aforementioned parties.
- [Mother] and Counsel shall remove information about this case, which has been publically posted by [Mother] or Counsel, including but not limited to, the press release, the press conference on the YouTube site, the Drop Box and its contents, and other online information accessible to the public, within twenty-four (24) hours…
Today, the Pennsylvania Supreme Court affirmed the injunction (S.B. v. S.S., majority opinion by Justice Baer).
[1.] The court concluded the injunction was content-neutral:
[W]e conclude that, when read in its entirety, the order constitutes a content-neutral restriction on the manner by which Appellants may convey their public speech, which was imposed for the exclusive purpose of protecting the psychological well-being and privacy of Child, and was not intended to, and, indeed, does not restrict Appellants' message…. [T]he restrictions [in the gag order] were not motivated by hostility toward Appellants' message and targeted only the method of communication for the exclusive purpose of protecting the psychological well-being and privacy of Child….
[2.] The court suggested that the order was relatively narrow:
[W]hile the gag order precludes Appellants from speaking publicly about "this case," when read in context, the order affords Appellants ample opportunity to disseminate all of their thoughts into the marketplace of ideas without restriction on the content of their message. The gag order further allows Appellants to voice all of their opinions regarding issues important to them, including parental alienation, child sexual abuse, and placement of children in the custody of sexually abusive parents, and to testify about these issues before governmental bodies in an effort to remedy these vital societal concerns.
The only limitation on Appellants' speech lies in the manner of communication, as they are precluded from conveying such public speech in a way that exposes Child's identity and subjects him to harm. Thus, the order does not deny Appellants the opportunity to be the catalyst for social or political change….
[O]nce Appellants remove from the public domain the enumerated information found to be harmful to Child, they are free to criticize the trial court's decision, assuming they do so in a manner that does not disclose Child's identity. Hence, the gag order places no restraint on Appellants' message regarding the governmental actions that were taken in connection with Child's custody case.
[3.] The court then upheld the order under the "intermediate scrutiny" applicable to content-neutral restriction, concluding that it was narrowly tailored to an important government interest in protecting "Child's interest in psychological and emotional well-being and privacy," and left open ample alternative channels for speech.
As a general matter, it is well-settled that protecting a minor from psychological
and physical harm serves an important governmental interest, in fact, in many
circumstances, a compelling state interest. This sentiment was expressed in our decision in Shepp v. Shepp (Pa. 2006), which involved the constitutionality of a custody order prohibiting a father of Mormon faith from teaching his minor daughter about polygamy, which is a crime in Pennsylvania…. [T]his Court … held that a court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime, if it is established that the parent's conduct "would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens." We clarified that the "state's compelling interest to protect a child in any given case, however, is not triggered unless a court finds that a parent's speech is causing or will cause harm to a child's welfare."The impetus for issuance of the gag order was Appellants' online press conference, which contained a link to pleadings from the custody case, a transcript of Child's testimony, and a copy of Child's forensic interview, setting forth, in Child's own words, detailed allegations of sexual abuse by Father, which the trial court had found did not occur. While Child's name was not mentioned in the press conference, Mother's identity was disclosed, thereby allowing those in the community to ascertain easily the identity of Child. A few weeks later, although not identifying Child, a local paper quoted the same detailed account of Child's sexual assault allegation that had appeared in the press conference.
The sensitive nature of the information disclosed during Appellants' press conference is troubling as it reveals Child's description of what he mistakenly thought may have occurred in terms of sexual abuse by Father. The online public posting allowing the community and the world to view Child's own words regarding his most intimate thoughts and fears of parental sexual abuse would undoubtedly leave an indelible mark on an innocent twelve-year-old boy, as will the entire protracted and contentious custody battle.
The trial court made specific factual findings, explaining that Appellants' quest to take the custody case to the media was particularly harmful to Child and not in his best interests because when parents, students and teachers in Child's small private school read the graphic account, it will subject Child to "undue scrutiny, ridicule, and scorn." …
While at first blush it may seem severe to preclude Mother from stating her name when publicly speaking about societal issues that arose in the case, the simple fact remains that public release of the identity of Mother discloses the identity of Child, undermining the essence of what the trial court was seeking to accomplish; protection of Child's psychological and emotion well-being and his privacy….
Chief Justice Saylor and Justice Dougherty joined the majority, "subject to the understanding that the common pleas court's order does not restrict private speech about the underlying custody dispute."
Justice Wecht, joined by Justice Donohue, dissented:
No doubt, there are countries in our world where overbroad prior restraints on speech of this sort pass muster. But not here. Or so I thought, until today. {Without a doubt, Mother and Counsel engage in otherwise protected activity when they speak about this case pending in our courts. As they say, this is America…. [But] the trial court entered a sweeping order that prohibited Mother and Counsel from speaking publicly about the case except in starkly limited form and in two narrow contexts. Even in those two contexts, Mother could not identify herself. That is, she could not speak her own name. That latter restriction is breathtaking. If that is not an overly broad restriction, nothing is.} …
Let's be honest. Mother is no Girl Scout. There are appealing reasons why a judge might seek to limit Mother's speech and that of her attorneys. These reasons arise from the extraordinary and potentially psychologically injurious pattern of public conduct in which Mother and her attorneys … have engaged. But if one thing ought to be clear from American legal history, it is that we should not allow hard cases to make bad law. Certainly, most of our constitutional protections have been forged in unseemly crucibles….
The dissent concluded that the restriction was content-based; it began by quoting Reed v. Town of Gilbert (2015):
Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys. Those laws, like those that are content based on their face, must also satisfy strict scrutiny….
It then reasoned,
The restriction in today's case was based upon the content of speech. It was based upon a particular subject matter. It was based upon the message. It was directed at the ideas expressed. The first sentence of the gag order categorically bans Mother and Counsel from speaking about the custody case; the preclusion extends only to that topic and that message. This is the very essence of a content-based restriction. To survive, it must withstand strict scrutiny. The perceived laudability of the trial court's goal does not change the nature of this restriction.
In addition to the fact that the gag order in this case is a content-based restriction, it also is a prior restraint on speech….
And the dissent concluded that the order couldn't pass the strict scrutiny applicable to content-based restrictions:
The Majority believes that this order provides ample opportunity for Mother and Counsel to express their views. I disagree. In its first sentence, the order categorically prevents Mother and Counsel from speaking or communicating about the case publicly. There are only two limited and very specific exceptions for Mother and Counsel to express their views, and Mother is precluded in all circumstances from doing so in her own name, ostensibly because this might tend to identify Child. This sweeping gag order all but precludes Mother from speaking about this case to anyone other than Counsel. Moreover, the order is not limited in time…. [T]he restriction is essentially endless and it is anything but narrowly tailored….
My view of the matter:
[A.] The restriction is clearly content-based, given Reed—it singles out a particular subject (speech about this case) for special prohibition, and it does so precisely because of the communicative impact of the speech (as opposed to content-neutral factors, such as its loudness). Just as a restriction on identifying a rape victim is content-based (see Florida Star v. B.J.F. (1989), as described in Cohen v. Cowles Media Co. (1991)), so is a restriction on indirectly identifying a child who alleged he was a sex crime victim. Likewise, the restriction is content-based under the McCullen v. Coakley (2014) test: a government action is "content based if it require[s] 'enforcement authorities' to 'examine the content of the message that is conveyed to determine whether' a violation has occurred."
[B.] Requiring people to speak anonymously when criticizing the government, and to fuzz out any facts that might let people in the community figure out who the speakers are (and thus who the child is), is a massive restriction on the ability to engage in such criticism.
[C.] Under the majority's rationale, anyone (not just the mother) could be restricted from discussing the case in a way that identified the mother (and therefore the child). A newspaper article written even without the mother's involvement could be enjoined, again on the theory that its publication could undermine the child's emotional well-being.
[D.] However important the interest in protecting children's emotional well-being might be, it can't justify such a sharp restriction on parents' speech to the public about what the government has done to them.
There may well be a cert. petition filed here, so perhaps the U.S. Supreme Court will have the occasion to consider it. (As the dissent pointed out, other courts have struck down similar restrictions, which is an important factor in the Court's deciding whether to take a case.)
