Does a gag order prohibiting a parent from speaking publicly about a child custody case violate the constitutional right to free speech?

S.B. v. S.S., 201 A.3d 774 (Pa. Super. 2019), allocatur granted Sept. 11, 2019, appeal docket 39 WAP 2019

The Pennsylvania Supreme Court granted allocatur to consider whether a gag order issued in a child custody case violates a parent’s constitutional right to free speech because the order precludes the parent and attorneys from speaking publicly about the case in a manner that would identify the child involved.

In 2015, S.B. (Father) filed a complaint in custody against S.S. (Mother), Mother alleged sexual abuse by Father, and a lengthy custody battle ensued, including litigation in both the trial and appellate courts, resulting in an order granting sole custody to Father. After the Supreme Court denied review of the Superior Court’s order, Mother’s attorney held a press conference on YouTube concerning the case and Mother’s disagreement with the outcome. The YouTube post reproduced the child’s in-court testimony and forensic interview and contained a link to a DropBox folder containing pleadings and transcripts from the case. Thereafter,  Pittsburgh City Paper published a graphic article about the alleged abuse by Father. The YouTube press conference and the article named Mother and the child’s best friend, but did not name the child. In April 2018, Father moved to enjoin Mother and her attorneys from discussing the case publicly in any forum and ordering Mother and counsel  to remove the case documents from public access. After a hearing, the trial court entered an order prohibiting Mother and her attorneys from publicly speaking about the case in any way that could lead to identification of the Child. The Superior Court affirmed the trial court’s order reasoning that the gag order was in the best interest of the child:

Here, our review of the entire voluminous record reveals that this case implicates grave issues, not the least of which is Mother’s unsubstantiated but unwavering allegation of sex abuse by Father, which warrants confidentiality of the proceedings. Child has suffered emotional trauma because of the strife between the parents. [Citation omitted]. The perpetuation and magnification of that strife in the media – particularly the internet – would exacerbate the harm to Child and constitute an egregious invasion of Child’s privacy. The aim of the gag order is, as noted, to promote the best interests of Child by protecting his privacy and concealing his identity. The government’s interest in preventing further emotional harm to Child is substantial.

Slip Op. at 11. Having determined that the gag order was in the government’s interest and the best interest of the child, the court found the gag order was constitutional and did not violate Mother’s rights, reasoning that:

Likewise, we find that the order leaves ample alternative channels for Mother and her attorneys to provide public testimony pertaining to the sensitive issues in this case. The gag order does not prevent Mother and her attorneys from speaking publicly about child abuse and parental alienation generally. The order merely limits Mother and her attorneys from publishing or communicating anything that would tend to identify and harm Child. Additionally, the order does not bar the media from any of the proceedings in the case, nor does it prohibit the media from reporting on the matter. Whether nay members of the media have deemed the matter newsworthy is not clear from the record. However, we note that a gag order on parties and their attorneys has been cited as an accepted less restrictive alternative to restrictions imposed directly on the media. [Citation omitted].

Slip Op. at 11-12. Further, the Superior Court determined that the gag order was not unconstitutionally vague, concluding:

Here, we are confident that a person of ordinary intelligence would read the order to forbid exactly what Mother wanted to do: take her case to the media. The proscription in that order is limited to a specific, small group of persons intimately involved in one case and makes clear precisely what Mother and her attorneys are prohibited from discussing, i.e., anything that might identify and harm Child. Accordingly, Mother’s assertion that the order is unconstitutionally vague and overbroad lacks merit.

Slip Op. at 13.

The Supreme Court granted allocatur to address the following issue, rephrased for clarity:

In a child custody case, did the Pennsylvania Superior Court err in affirming the gag order in violation of Petitioners’ rights under the First and Fourteenth Amendments to the United States Constitution and Article 1, § 7 of the Pennsylvania Constitution when the order precluded the parent and attorneys from speaking publicly about the case in a manner that would identify the child involved?

As part of the courts’ ongoing Covid 19 response, the Supreme Court will hear oral argument in this case via video conference:

For more information, contact Kevin McKeon or Dennis Whitaker.