Gag Orders In Baby Custody; Can Finest Pursuits & Free Speech Be Balanced? | Fox Rothschild LLP

By Last updated Mar 21, 2021

Father adopted a child with mother. Mother died two year later. Father remarried the stepmother in 2012, with whom this litigation took place. Stepmother adopted the child a year later. The marriage lasted less than a year. A custody agreement was formed. In June 2015, father filed for primary custody and mother counterclaimed for the same. An Interim Custody Order in September 2015 was followed by adoptive mother’s PFA alleging father committed sexual abuse of the child. This begot a Temporary Order-restricting father’s access to the child.

The PFA trial consumed 5 days and was dismissed but father’s contact was supervised. In February 2016, mother filed a second PFA. This was also denied. A few months later in May 2016, the parties began what would be a 23-day custody trial. It concluded in November and culminated in an Order issued three weeks later, which granted father sole legal and physical custody. Mother was to have no contact for a period of 90 days. The trial court opinion expressly rejected the sexual abuse allegations related to the then 10-year-old child, discrediting the child’s own in court allegations. These allegations had arisen shortly after the custody proceedings were initiated and father’s time had been expanded. The Court rejected the assertion that the child lied. Rather, the Court found the allegations unsubstantiated, relying in part on expert testimony from mental health experts. The Court also found that mother had engaged in a pattern of isolating and alienating the child from father.

The Superior Court affirmed the Trial Court and the Supreme Court denied an appeal in February 2018. 182 A.3d 430 (Pa. 2018). Just before the Supreme Court declined to take the case, mother’s attorney held a press conference on a video platform -YouTube. The apparent purpose of this was to air the allegations of sexual abuse. The child was not expressly referenced in this video but the record in the case was. Mother’s identity was disclosed. The story was picked up by the Pittsburgh City Paper. Here, again, the child name’s was omitted but witnesses were identified as were other facts from which identities could be deduced. The article also depicted in detail the nature of the abuse as alleged.

Father responded by seeking an order asking the court to restrain public speaking about the facts of the case, imposing financial sanctions and directing redaction of information that had been publicly posted. Within 10 days the Court denied the sanctions on the basis that no seal order had been violated, however, relief was granted barring mother or her attorneys from speaking publicly about the case in any print or electronic media. They were also banned from posting evidence arising from the case. This Order expressly permitted testimony before legislative bodies devoted to passing laws on the subject matter but prevented disclosure of information about the child in such fora. Mother requested a stay of this Order. It was denied. The clear import of the Order appears to be that, while the subject of child abuse could be communicated, facts, which could identify the 10 year old were to remain private. The Court indicated its goal was to avoid invasion of the child’s privacy.

The Trial Court opinion noted implications of the First Amendment and Article I, Section 7 of Pennsylvania’s Constitution. It also observed that the publications of mother and her counsel were “thoughtless, toxic and misleading,” bordering upon professional misconduct in the case of the lawyers.

A second appeal of the gag order also met with an affirmance. 201 A.3d 774 (Pa.S. 2018). Acknowledging the strict scrutiny standard, the Court opined that the gag order contained “restrictions …narrowly tailored to serve a compelling state interest” consistent with Republican Party of Minn. v. White, 536 U.S. 765,775 (2002). It added, however, that where government imposes content neutral regulation of expressive conduct it is governed by an intermediate standard of scrutiny. This standard is expressed in U.S. v. O’Brien, 391 U.S. 367 (1968). The standard has the following elements:

The regulation is within the constitutional power of the government;
The regulation promotes an important/substantial government interest;
The interest is not intended to suppress free expression; and,
The regulation is no greater than essential to promote the government interest.

The Superior Court found that the Order could be sustained because it was regulating the target of the speech (the child) rather than the content. Specifically, where parental action jeopardizes health and safety of the child or could cause other “social burdens” it may be regulated. Shepp v. Shepp, 906 A.2d 1165, 1173 (Pa. 2006). The Court also noted that a finding that there was no abuse added reason for the imposition of First Amendment limitations.

The Pennsylvania Supreme Court began its analysis by noting that First Amendment rights are not absolute. The First Amendment must be applied with reference to the “special characteristics of the [relevant] environment…” Tinker v. DesMoines Independent Community Sch. Dist., 393 U.S. 503,506 (1969). The regulation does need to assiduously avoid “content preference,” Clark v. Community for Creative Non-Violence, 468 U.S. 288,293 (1984).

In the view of the majority, the Order permitted the Appellants to convey public speech and does not restrict the underlying message. In fact, it expressly authorizes criticism of the presiding Judge and reference to the Order but mandated that those parts of the Order that would reveal the identity of the child or expose the child to publicity must be redacted. As the majority sees it, the Appellant and counsel are permitted to express opinions about parental alienation, child sexual abuse and the perils of exposing children to such abuse. “The only limitation on Appellant’s speech lies in the manner of communication …” They may be precluded from speech, which “exposes the child’s identity and exposes him to harm.” The Appellant may engage in conduct intended to bring about policy or social change. However, the Opinion seems to lay emphasis upon efforts to persuade government to change existing laws and procedures. The Court concludes that these limitations are subject to intermediate scrutiny rather than strict when reviewed on appeal.

In an analysis of O’Brien’s intermediate scrutiny standard, the Court makes some important findings. The majority explicitly holds that the child’s right to psychological and emotional well-being and privacy outweigh the rights of parents and counsel to speak freely. Seattle Times v. Rhinehart, 467 U.S. 20, 32, n 18. (1984). Protecting minors from harm is an important and often compelling state interest. Sable Communications of Cal. 492 U.S. 115, 126 (1989). The state has a long-standing role as parens patriae. D.P. v. G.J.P, 146 A.3d 204, 211 (Pa. 2016). In Shepp the Court grappled with the right of a Mormon father to teach his child about polygamy; a crime in Pennsylvania. It held that the right to free speech did not include the right to discourse on acts that would be criminal if perpetrated. This was not only a danger to the child but to society as a whole given its prohibition. In the present case, publication of the child’s testimony and a public discussion at a press conference of the child’s allegations were beyond legitimate needs to air the issue of abuse.

The reasoning of the majority in this case cannot be faulted. Nevertheless, it remains problematic. The Court states with merit that the limits on First Amendment rights need to be confined to “speech about the custody case communicated in a manner that would not identify the child.” Unfortunately, children are not raised in vacuums. Long ago, I was involved in a custody case where the father was convinced that mother was exposing their children to a satanic cult. I thought my client’s assertions fantasy until he provided me with a Pennsylvania State Police publication about cults. My client took the kids and went underground. It turns out there is a community of people who subscribe to the existence of cults and are more than content to assist in other people in this process. As a young attorney, I did not know what to believe. Then my client appeared on television describing in great detail what he did and why he did it. While he appeared credible in his television appearance, you could not help wondering how he could justify putting his children into the public arena. As one might expect, an appearance on a national talk show produced his arrest within 48 hours. Today, Shepp makes clear that you cannot counsel kids about activities that are patently illegal. Less clear is whether you can instruct a parent that they may not teach that there are evil people out there drinking blood or conquering our planet.

If you have ever represented a person who believes their children are being physically or emotionally abused, you realize that court orders don’t have a lot of meaning for them. They are caught in a world where they have convinced themselves that they sounded the tocsin of child abuse and the system (whether courts or the dependency system) ignored them. Irrational behavior becomes the norm. Moreover, many of these people are smart. This Supreme Court Opinion pushes them in the direction of seeking legislative reform; but that kind of reform comes slowly and does little to remedy the immediate pain they believe is inflicted on their child. Meanwhile, they can be sending out thousands of electronic messages or even appearing on talk radio or television. Reading this Opinion carefully, so long as the parent preserves anonymity for the children affected, that speech may be protected. If you are a child and your parent is devoting dozens of hours each week to promoting child abuse awareness, you have to think that speech is not detached from you even if your name or life experience are never uttered.

Sound as this decision is, for those submerged into cases with allegations of alienation or child abuse; there is no clear way out. That includes the lawyers, the clients and the judicial officers involved. Almost without exception, people making allegations of abuse are true believers in their cause. You can smell the reality of that from the facts in this case. An agreed custody order yields to a father’s petition for more time. When that relief is granted, one senses that the gloves came off. We see two abuse investigations with a five-day abuse trial and, 23 days of custody hearings. As we all know, judges effectively control how many days of custody trial they will tolerate and if you have ever asked a judge for more than three days of custody trial time, you have probably witnessed the face of a judge wracked with conflict. I suspect the trial judge in this case was dealing with a parent who truly believed abuse occurred and that the judge wanted to exhaust every angle of the case hoping that, either the abuse would be revealed or that the accuser came to realize that the facts did not add up. Obviously, that never occurred, and while the decision in this case is well reasoned, there is no order that can palliate the effects of almost a month of trial where one of the litigants still thinks her child is being abused.

The takeaway of this case is that there is now a standard to measure the limits of gag orders in custody cases. Unfortunately, we have no power to restrain the pernicious effects on a child brought about by a parent who believes with conviction (whether real or fantastic) that their son or daughter is being abused.

The case includes a lengthy dissent from Justice Wecht who contends that because it involves prior restraint of free speech, the strict scrutiny standard must be applied. There is merit in what Wecht argues as well. He does not quarrel with the findings that the adoptive mother’s views are creating issues for the child. However, he suggests the solution is in the custody statute rather than embarrassing free speech rights. In other words, “Mom, if your needs to express your views exceeds what the court perceives to be the best interests of the child, you may expect that the time afforded you with that child will be adversely affected. That’s not punitive but palliative because where a court has found no sexual abuse, it cannot be healthy for a child to spend extensive time with a parent who insists that the courts are wrong and dad is evil.” The words in quotes are the author’s interpretation of where Justice Wecht was headed. The dissent is effectively the “playbook” for the attorney opposing another party’s request for a judicial gag order.

S.B. v. S.S.; Appeal of: S.S., et al – No. 39 WAP 2019

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