The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Sanavage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond:
We agree that a number of provisions [of the child custody judgment, challenged by mother of a 10-year-old child,] placed an impermissible restraint on the mother's speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother's constitutional rights and must be vacated….
Prior restraints are "extraordinary remedies," and are "permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm." Shak v. Shak (2020). Accordingly, a prior restraint will not be upheld unless it is "justified by a compelling State interest to protect against a serious threat of harm," and the limitation on speech is "no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." In addition, an "important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.'" … [The s]tate "may not compel affirmance of a belief with which the speaker disagrees" ….
Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State's interests in the restraints imposed; instead he simply stated that the orders were made in "the best interest of the … child," which alone is not enough to justify a prior restraint on speech. Absent from this record is any evidence demonstrating that any "harm expected from the [mother's] unrestrained speech is grave," or likely to cause harm to the child, or that there was no less restrictive alternative to mitigate any harm….
Thus, we shall remand the disputed portions of the judgment pertaining to the coparenting terms (paragraph numbered two) and communications between the parties (paragraph numbered three) so that the judge may modify those terms that infringe on the mother's First Amendment and Fourteenth Amendment rights, or make further specific findings justifying the restrictions imposed by the judgment….
In numbered paragraph two (coparenting terms) of the amended judgment, the bulleted subparagraphs are vacated, with the exception of the fifth, eighteenth, twenty-third, twenty-fifth through thirty-first, and thirty-third subparagraphs; and in numbered paragraph three (communication), the bulleted subparagraphs are vacated, with the exception of the first through second, fourth, and sixth through seventh subparagraphs, and the matter is remanded for further proceedings consistent with this memorandum and order. Numbered paragraph nine (education) of the amended judgment is vacated in its entirety. Numbered paragraph ten (exchange location) shall be modified by striking the last sentence of the third paragraph, and striking the fourth paragraph in its entirety. The amended judgment is otherwise affirmed as so modified.
But wait: Just what are these unconstitutional orders? The appellate opinion doesn't mention them, but I had my research assistant track down the judgment for me; the struck-down provisions that most focus on speech seemed to be:
Each parent shall encourage the minor child to have an attitude of respect for the other.
Each parent shall identify for all public and private purposes the minor child by their legal names and shall not use any other name for the minor child.
Each parent shall communicate with each other regarding any matter affecting the welfare of the minor child.
The parents are restrained from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and / or from posting any disparaging comments relative to one another on any form of electronic social media.
The parents shall treat each other with mutual respect and shall foster in the child respect for the other parent.
The parents shall not discuss with the child the nature of any past, present or future legal proceedings.
The parents shall not question the child about the other parent nor allow a third party to do so.
The parents shall at all times insure that any and postings by the minor child on any social media platform shall be age-appropriate, not contain any demeaning or inflammatory depictions or language and shall not contain any language or depictions of a provocative nature.
One interesting portion of paragraph 9 (also struck down as "infring[ing] on the mother's fundamental rights as a parent"): "Each parent, during the time that he or she has custody of the child, shall ensure that the child timely completes all school homework assignments or projects and shall review with the child all completed school homework assignments or projects."
For more on child custody speech restrictions, see here.