The Volokh Conspiracy
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May Judge Order Divorcing Parent to Include Disclaimer With All Future Child Abuse Allegations?
A trial judge had found that the mother had "intentionally weaponized" child abuse reports, and required her to so state in any future child abuse allegations made to authorities.
In last week's Peterson v. Rush (Pa. Super. Ct.), the trial court had given shared legal and physical custody of a daughter to the mother and father, but also stated this:
I am, therefore, going to order Mother that, to the extent that she has concerns over child abuse, obviously any concerns regarding child abuse need to be reported to authorities, but they must now be reported with a disclaimer [(Disclaimer)]: "The [c]ourt made a finding of fact at the conclusion of a one-day trial on September 10, 2024, that Mother has intentionally weaponized the [Protection From Abuse], I[ndirect] C[riminal] C[ontempt], and child abuse process[es] in an effort to gain an advantage in custody proceedings." Mother should then further inform the providers that: "Nevertheless, all legitimate allegations or concerns of child abuse should be fully investigated as required by law." I am ordering Mother to make those two statements in any further child abuse reports so that a proper context is had….
On appeal, Judge Anne Lazarus, joined by Judge Timika Lane, upheld this condition:
Because Mother did not raise or even suggest a free speech claim in her Rule 1925(b) statement, the issue is waived on appeal. However, even if we did not find this issue waived, Mother would not be entitled to relief. {First Amendment protections historically encompass prohibitions on speech as opposed to compelled speech. See In the Int. of J.J.M. (Pa. 2021) ("First Amendment 'made applicable to the States through the Fourteenth Amendment, provides that 'Congress shall make no law … abridging the freedom of speech.'"); citing U.S. CONST. amend. I. In any event, the court was justified in requiring Mother to disclose the information contained within the Disclaimer where it bears directly upon "the important governmental interest of protecting the psychological and emotional well-being of Child[.]" S.B. v. S.S. (Pa. 2020).}
Judge Mary Jane Bowes dissented on this point:
Mother plainly raised a civil rights challenge in her statement, which the trial court understood to reproach the order's infringement on her right to freedom of speech. As such, I do not deem waiver to apply….
[T]he Supreme Court … has held time and again that "the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard (1977)…. "It is … a basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say." … "There is certainly some difference between compelled speech and compelled silence, but in the context of protected speech, the difference is without constitutional significance, for the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say." …
[T]he Majority alternatively states that, "[i]n any event, the court was justified in requiring Mother to disclose the information contained within the Disclaimer where it bears directly upon 'the important governmental interest of protecting the psychological and emotional well-being of Child[.]'" It is beyond peradventure that protecting children is a compelling government interest. However, that is not dispositive of Mother's claim.
In order to justify the restriction on Mother's First Amendment rights, the trial court's mandate must both rest upon an evidentiary foundation supporting the finding that the forced speech furthers that compelling state interest and be narrowly tailored to do so….
I discern no evidence that the compelling government interest in protecting Child was what prompted this aspect of the custody order…. My review of the transcript of the proceedings suggests that the trial judge instead sought to protect Father, not Child, through this directive. Although he expressed "concerns" about "alienating effects" of Mother's "weaponization" of reporting to gain an advantage in the litigation, he declined to find that Mother attempted to turn Child against Father or that Mother was less likely to attend to Child's emotional needs.
I deem a more specific evidence-based finding necessary to justify this order. Accord Rogowski v. Kirven (Pa. Super. Ct. 2023) (vacating portion of custody order restricting the child's use of the terms "mom" and "dad," and compelling the parties to correct the child if she referred to a non-biological parent by the term, because there was no finding by the trial court that "use of the terms 'Dad' and 'Daddy' to refer to Stepfather posed a tangible risk of harm to the [c]hild"); McClendon v. Long (11th Cir. 2022) (ruling sheriff's placement of signs stating "STOP" and "NO TRICK-OR-TREAT AT THIS ADDRESS" in the yards of registered sexual offenders violated the First Amendment where the government failed to offer evidence that the persons compelled to display the message "actually pose[d] a danger to trick-or-treating children or that these signs would serve to prevent such danger").
Furthermore, assuming arguendo that the order was designed to further the compelling interest of protecting Child, the certified record contains no indication that Judge Stambaugh even contemplated whether his directive was narrowly tailored to further that objective.I observe that several courts facing challenges to compelled speech have found First Amendment violations for want of narrow tailoring to achieve the goal of protecting children. See, e.g., McClendon (holding the government failed to show that the signs were narrowly tailored to "accomplish the compelling purpose of protecting children from sexual abuse" when the offenders were already under an imposed restriction to avoid trick-or-treaters); Sanderson v. Bailey (E.D. Mo. 2024) (ruling portion of state Halloween statute mandating the posting of a sign stating "no candy or treats at this residence" was unconstitutional compelled speech because it was not narrowly tailored to protect children where there were "other effective alternatives to achieve that interest").
Here, I discern no indication that the trial judge considered alternative means to achieve the goal of discouraging Mother from "weaponizing the child abuse process" rather than compelling her to state the Disclaimer the judge drafted if she made a future report of abuse. Meanwhile, I readily ascertain that he could have, for example, informed Mother that she would be held in contempt if she continued to make unfounded accusations for improper purposes, or authorized Father to disseminate that statement to the relevant authorities should he be faced with an investigation. Instead, the judge imposed a content-based restriction on Mother's free speech rights without acknowledging that they were implicated, let alone explaining why it deemed the order necessary to further his unspecified goal.
I would hold that the First Amendment requires a far more thorough foundation for the state's incursion upon Mother's "decision [about] what to say and what not to say" than what the trial judge established in this case….
