The Volokh Conspiracy

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Free Speech

If You're Suing Just Me, You Can't Get An Injunction Against My Wife


From yesterday's decision in Jacoby v. Jacoby (Pa. Super. Ct.), written by Judge Carolyn Nichols and joined by Judges Mary Jane Bowes and James Gardner Colins:

Richard G. Jacoby, Jr. (Father) appeals from the trial court's order that restricted the speech of his spouse, non-party Brena Jacoby (Stepmother). Father contends that the trial court's order improperly restricted non-party Stepmother's speech on a social media site. We vacate the order to the extent the order affects Stepmother….

Mother sought to enforce the court's modified custody order, remove Child from Stepmother's home, and place Child with Berks County Children and Youth Services (CYS). The trial court held a telephone hearing on June 17, 2021. At the hearing, Mother's counsel notified the court for the first time about a post that Stepmother had made on Facebook. Specifically, Mother's counsel explained: "Your Honor, there was a Facebook post by [Stepmother] basically saying that they've complied with all these orders, that this [c]ourt has gone rogue, that she keeps saying 'our child.' I mean, this is pure alienation. She should not be involved in this at all." In contrast, Father's counsel asserted that the post did not contain any information that was material to the custody dispute.

{We quote the Facebook post as follows:

OK…. I'm going to lay everything out for ppl to know. My husband [Father] is currently in BCP on indirect civil contempt pertaining to child custody. The judge won't release [Father] until our minor child attends four days of this out of state program with Linda Gottlieb. The judge did not set a monetary value. Our minor child is afraid of her Mother (she lives out of state) and has been fighting not to go to this out-of-state program with her Mother to fix their relationship. There have been many attempts to have our minor child attend this program, to no avail. Her Mother had her attorney request that our child's Father be incarcerated until our child attends at least 4 days of this out of state program. This happened on Monday. On Monday my husband was incarcerated. On Monday, CYS came to my house, and the State Troopers. Our minor child is still with me as she fought not to go. How much emotionally [sic] and mental abuse can a child go through. I cooperated 100%. This has been going on for years (2016). Our minor child has not been alone with her Mother in over 5 years. She is terrified to go with her. At this point, we have a biased Judge. He basically went rogue. I need help. I have 2 great attorneys, but no matter what we do the judge sides with the other side. They are claiming parental alienation. There is no legal record of parental alienation. Now anyone that knows me or my husband knows we aren't those ppl. We have encouraged, positive affirmations etc.. [sic] this doesn't matter to our minor child because the child is in fear. As some know I co-parent with my ex. We don't have a court order or a child support order. We get along great. This has been a nightmare for us all, but especially for our child who has never been without [Father] in all of our child's life. We have been accused of interfering with our child going to this program. We aren't interfering. Our child is fighting it. How much more abuse can we all take, especially our child.

My husband owns a law firm and it is taking a hit because he is incarcerated for no reason.

We need help. We need help immediately.}

[T]he trial court issued an order that granted Mother's petition and stated, in part, as follows:

… [Father] and [Stepmother] shall NOT use online or web-based communications to discuss this matter…. [Father] or [Stepmother] shall remove the Facebook post which contains information related to [Child] and shall not post any discussion or information regarding [Child's] custody or other information regarding [Child]….

Father raises one issue on appeal: "May a trial court issue an order censoring speech of non-party Stepmother on social media relating to criticism of the trial court judge in the action[?]" …

[T]he instant trial court sua sponte pulled non-party Stepmother into this court proceeding by issuing an order against her without addressing the absence of original service of process for Stepmother….. Stepmother was not a party to the suit between Father and Mother, she was not served with process, and she had no notice or opportunity to challenge the communications restriction order.

Although personal jurisdiction is a waivable issue, non-party Stepmother did not have notice nor an opportunity to challenge the order, and the parties did not address the trial court's exercise of personal jurisdiction over her…. [W]e … hold that the instant trial court had no personal jurisdiction over non-party Stepmother and therefore no authority to impose a communications restriction order against her. For these reasons, because the trial court committed legal error, we vacate the order to the extent the order identifies Stepmother, and because Father withdrew all of his other claims as discussed herein, we affirm in all other respects….