Free Speech

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.

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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.

  1. [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
  2. [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.
  3. [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.)

NEXT: Is there Criminal Liability For Airline Passengers Who Knowingly Conceal COVID-19 Symptoms?

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  1. “The trial court further relied upon expert testimony, establishing that Father “is a low risk to perpetrate physical, psychological, emotional, or sexual abuse.”

    Good thing the father wasn’t abused himself. That’s a risk factor in abuse, and I understand courts take this into account when determining whether or not someone likely abused someone else.

    1. No, courts don’t. Having done more than 500 trials related to alleged sexual abuse by parents or family members; judges do NOT do this. (At least, not in California.) I’ve never done a jury trial re sex abuse allegations (ie a criminal trial), but my own understanding is that judges give a specific instruction to juries that they may Not use a person’s victimhood as evidence that she or he committed a crime. [Post conviction, during the sentencing phase, of course past abuse is often used as a mitigating factor.]

      Also, if someone is convicted and is attending therapy as a sex abuser, *psychologists* and other mental health experts do look at this factor, as it can be critical in providing effective and targeted treatment to this woman or man.

      1. I’m not saying that they do this at criminal jury trials, but at other types of proceedings were the standards are more lax. I could certainly be wrong, but given the lack of transparency in juvenile cases it’s hard to know for sure.

        Here is a case where an “expert” testified (2.61) that a mom had been a victim of abuse, and thus was more likely to be a perpetrator. The judge found that the fact that the mom was a victim had not been established.

    2. There’s a rule of evidence that covers whether past events are admissible to show that an accused action was taken. It’s been almost a decade since I took Evidence so I don’t remember which rule it is but the gist is you can’t use the fact that a person was once acccused of/convicted of a similar crime to show guilt for THIS particular crime. So the fact that a guy was accused of rape in 1980 and convicted of a different rape in 1983 doesn’t provide any evidentiary value on whether or not the defendant commited this, 1991 rape. Where it can show up, however, is on which tier of the sex offender registry a convict lands on if their crime requires registration.

      1. Under Federal Rules of Evidence 413 and 414, you generally can introduce evidence that a person committed rape of child molestation on a previous occasion as evidence that they’re the sort of person who would rape or abuse children (respectively) and thus are more likely to have committed the rape of child molestation at issue in the current case.

        Obviously, different states have different rules about how to handle this sort of evidence.

        1. Ya made me look it up. The rule I was remembering was 404.

  2. (1) Did the trial court act sua sponte in issuing the order or was it requested by some other party?

    (2) I appreciate that it probably isn’t feasible, but I wish there was some way we could hold judges personally legally accountable for clearly wrong decisions which impair people’s constitutional rights. I know, one of the problems in allowing for such accountability would be figuring out how to decide when a decision was clearly wrong. I get that there may be no plausible way around society accepting the (effective) absolute immunity that judges enjoy. But it’s hard to accept nonetheless. I find that immunity offensive to society, as judges often enough do things I would consider more loathsome and far more detrimental to society than nearly all of the range of activities which we generally criminalize.

    (3) I’m assuming they’ll be a Supreme Court cert petition in this case. If you, Professor Volokh, and/or your students decide to file an amicus brief at the cert (or merits I suppose) stage, I’d happily make a modest donation to help cover whatever expenses would be involved.

  3. How does a state court get the authority to preclude the mother from stating her name should she be subpoenaed to appear at a Congressional hearing? Depending on the politics of this one, I could see Ted Cruz or Liz Warren (or perhaps both) being rather pissed about what appears to be a rather unconstitutional usurpation of Congressional privilege.

    Likewise, it’d be fun to see Louie Ghomert and AOC on the same side of an issue….

    And hasn’t SCOTUS ruled in favor of a Congressional right to compel testimony (absent taking the 5th like folk did with Joe McCarthy)? But would that even apply to a question of “are you Jane Doe?” There’s no 5th Amd protection against refusing to identify yourself, is there?

    1. I don’t even see how that would work. I thought that, before you’re even sworn in, you are asked to state your full name. What is a witness supposed to say? “I’m sorry, but a judge has ordered me to not give my name?” “Sorry, I can’t even nod my head to confirm that the name you’ve just recited is correct…same judge’s order.”

      I totally get what the judge was trying to accomplish. But surely this cannot be constitutional? I guess we’ll find out, once it hits a federal court.

      Eugene, how does it work, when a state court has ordered someone to “Not do X.” and a federal court has ordered that same person “No, you must do X.”? Other than that person, who has standing to get clarification? And where does she go, in order to get clarification? Does a federal lower court outweigh the highest state court in a particular state? Unless SCOTUS agrees to hear this case, and all similar cases, I’m confused about the procedural steps. (Assuming a fed ct has ordered a conflicting “Must do X” instruction.)

      1. Solomonic solution, I assume. Cut the person in half, one half subject to the state court prohibitory injunction, and the other subject to the federal court mandatory injunction.

  4. This decision is bizarre to the point of casting doubt on the legal judgement of the PA SC. If the mother is psychologically abusing her child, charge her with a crime … but invoking such a far-reaching prior restraint seems to be against everything I ever learned about the first amendment.

    1. Well, this reminds me of the infamous case of Justina Pelletier — https://www.dailywire.com/news/exclusive-daily-wire-speaks-father-alleged-medical-frank-camp

      It this case, it was a Connecticut resident that had gone into Boston which is how Mass DCF got control and then the Mass court ordering the CT resident not to talk about it in CT which gave rise to some interesting jurisdictional issues.

      I think what happens is that both cops & courts tend to give the purported “experts” far too much deference — and then neglect to remember that absolute power tends to corrupt absolutely. And the Pelletiers lost their lawsuit.

      1. She was already on the DCF radar because her parents thought the Tufts doctors were being too aggressive with the Mitochondrial disease treatment. Then Boston Childrens claimed that the parents were allowing the Tufts doctors to do to much treatment.

        It seems that doctors just file neglect or abuse reports whenever someone questions them.

        1. Medical practitioners are generally mandatory reporters.

          1. Yes, and so am I — and just once I’d like to see the same DCF send me a “thank you” note (or email) for filing such a report.

            I don’t want to know what they did (trust me…), but this is just professional cutesy…

          2. “Medical practitioners are generally mandatory reporters.”

            So what? It’s not abuse or neglect to question a doctor.

            1. “So what?”

              If you face liability for failing to report, and no liability for reporting something that turns out to be nothing… what’s the likelihood that over time, you’ll turn out to be over-reporting?

  5. ” 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…”

    Why the hell wasn’t that sealed?!?

    This was a proceeding involving a minor child, isn’t family court stuff of this nature inherently sealed in the first place? And notwithstanding that, it would seem to me that the better injunction would be to take down that link and otherwise seal this stuff.

    After all, if this link is still valid, anyone with a knowledge of Boolean logic and a few hours to waste has enough information in the court decision itself to find the link itself without ever having to know the mother’s name. There’s enough key facts here to search on.

    1. For decades, Dependency Court (ie, non-criminal child abuse cases) were kept private here in California. But that had been based on the feelings of the presiding judge. Once people started to threaten litigation to open up those proceedings, that judge did change policy. Now, non-family members are allowed into the courtroom to observe proceedings. Which means that the media also are allowed in. (Parties can still petition a court to seal a particular hearing, or witness, or segment of testimony…but the default rule is now openness.)

      1. It’s true that dependency court proceedings were private in California. But that simply meant that the courtroom was not open to the public. (Juvenile Court proceedings are also closed.) The parties and their attorneys were never barred from commenting on the evidence or the court’s decision. Even if there was some tension between the California rule and the right to a public trial, it raised no First Amendment concerns. Whereas here, under the logic of the Pennsylvania Supreme Court’s decision, anyone attending a criminal trial on a charge of child molestation could be prohibited from discussing or writing about the case, even after the trial was over. It’s hard for me to see how such a result is consistent with the First Amendment.

  6. Also, “publically”?

    1. Yeah, I’m with you on that.

      1. I knew Eugene would come around to prescriptivism. Yay.

        1. I’m being descriptivist here; “publically” has long been a very rare variant (see here), and even a surge in the last decade or so just brings it to about 4% of the references in books published since 2010.

          Now if the surge increases, and eventually “publically” becomes a pretty common variant, I’d happily acknowledge it as standard — much like many of the other -ally adverbs that are fully standard (and indeed the dominant forms).

  7. Family Court is constructed from the Talmud and run by jews. If there was an allegation of sexual abuse, it would go to proper agency of the state government for investigation, not tried as part of a divorce proceeding…..see how the jews work? Child Sexual Abuse is a criminal matter…. there are no gag orders in criminal cases….not allowed. See how the jews twist everything to the point it is unrecognizable? Welcome to Amurika, run by jews for the benefit of jews….protecting child abusers is a hallmark of jewish law.

    1. That’s uncalled for, and I say that as a Christian.

      And Reality 101, allegations of child abuse are routinely dragged into divorce and child custody proceedings.

    2. ” Child Sexual Abuse is a criminal matter”

      Which doesn’t magically make it NOT also a civil matter, at the same time. There’s a lot of torts that are also crimes. Battery is one of them.

  8. The parents dragged the kid into a public forum as part of their dispute, there is no right to privacy to uphold for the kid as his parents surrendered it on entering court….pretty simple. The decision is the work of paedophile protectors in the family court system…..a.k.a. JEWS

  9. Why did the trial judge allow the kid to testify in court under oath on the witness stand? C’mon, see the scam here. Kid said dad was sexually abusing him, but judge decided otherwise and gave the kid to dad…..dad murdered his first wife when she found out his sexual deviancy.

    1. Whiskey Tango Foxtrot….

      Do you have any idea how many allegations of child sexual abuse are false? I’m reminded of “Tooky” Ameralt and the allegation that he was sodomizing small children with the blade end of a 6″ butcher knife. No injuries mind you, not even any bleeding, but he allegedly did it…

      1. “Do you have any idea how many allegations of child sexual abuse are false?”

        No, and neither do you. All any of us has is a guess.

    2. I’ve flagged this fool’s posts here for review (libel and general anti-semitism). Now being Reason, I’m not sure whether they remove comments. But they made the “flag” feature available, so I used it.

      1. Nick, save your energy for real human posters. He’s a Russian ‘bot, so I think we all ignore his posts, other than to view them with some measure of humor. (“What morons in a St. Petersburg building would think anyone will take this post seriously?)

        It is to Eugene’s credit that he (a Jew, albeit not a religious one) allows bots to spew out silly anti-Jew posts. A commitment to free speech, even when his own ox is being gored. That’s noteworthy.

        1. Also noteworthy: Prof. Volokh engages in repeated, partisan, viewpoint-driven censorship. He targets liberals and libertarians, while providing a pass to conservatives, which pleases his right-wing fans while making his commitment to free speech limited and paltry.

          1. He isn’t censoring you…

            1. He has censored me.

              Repeatedly.

              In a blatantly partisan manner.

              (If Prof. Volokh wishes to refresh his recollection before providing his account of what has occurred, he could check his e-mails from April 2011, March 2014, February 2015, and April 2019).

              I do not question Prof. Volokh’s entitlement to engage in partisan, content-driven censorship (deleting comments, banning commenters, warning against use of certain words to describe conservatives). His playground, his rules. He can ban use of certain terms, even while he repeatedly and gratuitously uses a vile racial slur. He can censor liberals and libertarians (for making fun of conservatives ) while providing a pass to conservatives who call for liberals to be gassed, placed face-down in landfills, sent to Zyklon showers, and shot in the fact.

              His record, however, diminishes the legitimacy of his candidacy as a frequent scold with respect to ostensible censorship by others, particularly the private institutions at which he snipes.

  10. If a court can order a party to not criticize the order(s) of the court, doesn’t that effectively preclude appeal?

    1. I think the Pennsylvania Supreme Court would say that the right to appeal would be protected because the appellate briefs could be ordered sealed. Oral argument would be tricky, but you could close the courtroom to the public and bar the parties from commenting on it. Thus, I think the decision would not preclude the right to appeal. But that doesn’t mean that I agree with the decision, which seems like a flagrant violation of the First Amendment.

  11. I hate to say “can anybody think of the children?”, but seriously, a big part of the problem here is that while the court case is a legitimate matter of public concern, the family’s fighting is not.

    This child would probably benefit enormously if the mother and her lawyer would shut the heck up. (This is not that different from many public divorce situations, where one or both parents use the press to lob allegations at the other parent for the purpose of damaging reputations and without any whit of concern for the mental health of their kids.) And if the Court’s conclusion that the father is innocent is correct, the mother and her lawyer are also deliberately harming an innocent father.

    At the end of the day, I think Prof. Volokh’s constitutional conclusion is correct. There’s a First Amendment right to publicly criticize court decisions, and this order is clearly content-based. But this isn’t a conclusion I am in love with. Litigating your divorce-and-child-custody case in the press is one of those things that may be protected by the First Amendment while still being a very lousy thing to do.

    1. Yeah, I think that’s basically the dissenting judge’s point. The court’s heart is obviously in the right place, and the mother is not a sympathetic actor, but that’s what he meant with the whole “hard cases shouldn’t make bad law” think.

      Isn’t the duty of the court to uphold the constitution? Especially in unsympathetic cases?

    2. And if the Court’s conclusion that the father is innocent is correct, the mother and her lawyer are also deliberately harming an innocent father.

      Please help me out. Why isn’t, “harming,” too soft a way to put it. Given the premise, isn’t the mother defaming the father? Why isn’t this an instance of libel per se? And if it is, how does that affect EV’s assessment that the court’s decision is unconstitutional?

      Defamation is not protected speech, right? And I thought I understood that adjudicated defamation could constitutionally be subject to prior restraint. So my initial read on this one left me perplexed.

      I am not asking rhetorically. Please correct me if you are a lawyer and understand it otherwise.

      1. I realize you’re reflexively supportive of virtually any attempt to stifle free speech (including the monkey oriented ones). But take another look at what the court ordered and try again.

        1. Noscitur, believing the monkey took the picture is fun, because it’s a great, great picture. I wish it were true. I’m amazed that the human who did take the picture—who was a skilled photographer, by the way—was willing to forego credit for it.

          But the monkey did not take the picture. On that point I could qualify as an expert witness on photography, and blow it out of the water in court. I could convince anyone that as a matter of preponderance of the evidence, or as a matter of proof beyond a reasonable doubt, or as a matter of just goddamned impossible, the monkey did not take that picture with that equipment. I could go farther, and convince a jury that no human—except one with photographic training, and perhaps a modicum of post-processing and design training—could have taken that picture with that equipment.

          With a little research, I’m pretty sure—but without the research, not entirely certain—I could prove that no photographically naive being on the planet, using any equipment then available, could have taken that picture.

          In the interest of staying forthright, I should mention that all those assertions are obsolete with regard to present circumstances. Years since the monkey picture was taken, photographic equipment came on the market which does enable such pictures to be taken, even without human involvement. Software was invented to enable cameras automatically to focus selectively on the eyes of a subject, wherever the eyes might appear in the frame. Formerly, that was the trick no monkey (or untrained human) could do, even if either could imagine doing it. It took multiple camera manipulations, performed in sequence using multiple camera controls, while guided by visual feedback, to achieve that result. Today’s software does do all that automatically.

          The new software works fairly well. It seems remotely, distantly, possible to me that the human photographer who did make the monkey picture (or maybe the monkey) had pre-release access to such equipment, and used that equipment without wanting to admit having it (getting a confession of unauthorized use out of a monkey is really hard). If we posit a working prototype in unauthorized hands, we might have an explanation to throw doubt on my assertions.

          I would not expect to discover those premises were actually met. I doubt even prototypes were in circulation at that time, and if they were, I doubt the inventor of eye-detection software would have passed on the opportunity to use the monkey picture to promote the invention. The tagline for such advertising is all too obvious.

          It’s a great, great picture. I wish I had taken it.

      2. “Given the premise, isn’t the mother defaming the father? Why isn’t this an instance of libel per se?”

        Legal proceedings are priviliged against libel. Otherwise, for example, falsely claiming a person is guilty of a crime is libel. The state doesn’t want to pay out damages for losing a criminal trial.

        1. JP, you are a lawyer, right? Is that a legal theory you would offer to a judge—that the state could be liable for not getting a conviction? Or is that just something you say to legal laymen like me, to bamboozle them on the internet?

      3. The litigation privilege protects defamatory statements made in connection with a court proceeding.

      4. James Pollock and Dilan Esper, I understand the privilege for published statements made in court. When I was a newspaper publisher, decades ago, I relied upon it routinely. But with this case there is a wrinkle which I suggest deserves reflection.

        One purpose for the privilege—as far as I can see, the main purpose—and nearly the only purpose—is that speech freedom is served if publishers do not have to worry about defamation suits when they report court testimony. Court testimony they publish may turn out to be false and defamatory. People lie in court. Publishers required to sort courtroom lies from true statements would most likely choose to avoid coverage of court proceedings altogether. Hence the privilege.

        A premise behind all that is that publishers may realistically be presumed to be badly positioned to evaluate the truth or falsity of courtroom testimony. That circumstance is what the privilege for court testimony is meant to redress. The publisher gets immunity, and the people get to keep court proceedings public, and follow them in the press. Which becomes a major win for speech freedom, and one closely tied to the especially important class of speech about governance. So far, so good.

        But here is the wrinkle. Sometimes—very rarely in the pre-internet era; more commonly now—the publisher is perfectly situated to judge the truth or falsity of courtroom statements. That is because the publisher is—with increasing frequency lately—the party making the false statements in court, and knows they are lies. This new circumstance is not because anything changed in court. It changed because now—as not before—almost everyone can be a publisher.

        In short, publishers who wish to defame someone are now positioned to game the privilege, and wield it as a sword against anyone they wish to harm. And this is clearly happening. Taken on the record, this case is a likely example.

        As so often previously, the internet has once again challenged legal norms regarding speech freedom, which were mostly enacted legislatively, or laid down in courts while deciding pre-internet cases. The factual context of those previous cases, lacking any internet presence, sometimes makes them a poor source for precedents to decide different-context cases which arise now.

        I suggest again, as I have before, that preservation of speech freedom may require thoughtful adjustments to the law of speech, and especially to the law of publishing. Changes in law ought to be considered, to take account of reality that universal publishing capability created implications not previously reckoned with legally.

        Probably those changes will come legislatively, and perhaps heedlessly, if legal experts on speech freedom do not soon weigh in proactively, with an eye to maximizing freedom under these new circumstances. Proposed legislative solutions we see now too often tend toward frank demands for government censorship, which would be a disaster. Talk radio shows, including every political perspective—including even NPR shows—are profuse with guests advocating censorship, often without any apparent awareness that is what they are doing. They seem to suppose they are calling on government to enforce virtue.

        Before that happens, I hope more thoughtful speech freedom advocates in the legal community will step forward, to take up the challenge of adjusting the law of speech to match present circumstances. Alas, on this blog I see little evidence that is even under consideration.

      5. Stephen: I’m a lawyer, but this is not within my area of expertise and I’m speaking off the top of my head. I do, however, have a couple of thoughts:
        1. The judgment wasn’t final (i.e. the appeal hadn’t been resolved) when the court issued its restraining order. I doubt that it could bar the parties from publicly disagreeing with its ruling while the case was on appeal.
        2. The case in question was a child custody dispute, not a defamation case. The question whether the molestation occurred was a factual dispute that was relevant, but not essential to, the resolution of the child custody dispute. I don’t know whether a preliminary fact determination of that nature would be equivalent to an adjudication in a defamation case; you’d need to ask someone familiar with this area of law.
        3. If the restraining order had merely barred mom and her attorney from asserting that the molestation had occurred, the argument for its constitutionality would be stronger. But the order went way beyond that: It completely barred them from commenting about the case in any way that would disclose the girl’s identity. In my view, EV is right in saying this is constitutionally impermissible.

  12. Forget “publically.” Eugene never gets usage of “forbid” right, as in “Mother Forbidden from Mentioning Her Own Name in Criticizing Custody Decision—and the Penn. S. Ct. Upholds This”

    In English, we say, “forbid to,” not “forbid from.” Just as we say, “bid to.
    “I bid you to dine with me” and “I forbid you to dine with me” are correct, and correlated. If Eugene insists on using “from,” he needs to switch to “prohibit from” and be forbidden to use “forbid.”

    1. Hey, it’s this guy!

      Please, please stick around.

      1. So long as the proprietor engages in the regular and gratuitous use of a vile racial slur; censors liberals but not conservatives; and flatters gun nuts, racists, and other disaffected clingers, Noscitur will be here to defend him.

  13. Pleased to meet you, hope you guess my name.

  14. Here is link to evil press conference so gagged by Judge Clark…..

    https://m.facebook.com/story.php?story_fbid=1621260391289731&id=196896040392847

  15. The hilarious point of this feeble exercise in appellate review of a family court order is that Attorney Richard Ducote is just burning his client’s money. The family court applied its unbridled (jewish) discretion which the higher courts will not disturb as such discretion is the foundation of such a court’s power. Now Ducote has been put in his goyish place as a Talmudic lawyer would have never questioned the rabbinical court.

    Funny part is that the kid is 16. He will age out before any higher appeal can be taken. Once the kid turns 18, the trial court loses jurisdiction the gag order evaporates, mother and lawyer are free to speak their minds over a matter that is no longer a matter. See how the system works??

    Federal courts don’t touch family matters, an absolute rule. Feds don’t want to address the jewish element of child trafficking that is done under state’s rights. SCOTUS will not touch it. Ducote just made a mountain out of a mole hill. The father rapes the kid and Ducote argues about free speech, better just to hire some thugs to work over dad, would save the kid’s ass.

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