The Supreme Court of Pennsylvania recently decided that an order restricting the manner of speech to protect the psychological well-being and privacy of a child in a custody dispute is Constitutional.  S.B. v S.S. 39 WAP 2019.

As with many separations, Mother and Father entered into a custody agreement.  In this case the agreement quickly fell apart and ended up with years of contentious litigation.  During the litigation, Mother filed two Protection from Abuse petitions on behalf of herself and the Child.  Mother alleged Father had sexually abused the Child.  Following hearings, the Court dismissed both petitions.  Following a twenty-three-day custody trial, the Court granted Father sole legal and physical custody after a year of having no contact with his Child.

The Child’s testimony in the PFA hearings, forensic interviews of allegations of sexual abuse, expert evaluations, and the Child’s in court testimony were introduced at trial.  Mother was unhappy with the Court’s decision and expressed her disagreement via YOUTube.  Not only did Mother and her attorney discuss their opinions on YouTube, but they also attached a link providing access to the Child’s testimony and interviews.  This information was also published in the Pittsburgh City Paper.  The Child’s classmates, teachers, friends, and other members of the community could access this information.

The trial court prohibited Mother, her attorneys, or any third party direct by Mother from speaking publicly or communicate about the case in the media or online.  Mother and her attorneys were ordered to remove any information about the case that was publicly posted by Mother or her attorneys.  Mother appealed this order all the way to the Supreme Court of Pennsylvania.

The United States and Pennsylvania Constitutions guarantees the right of free speech, especially content-based speech.  While there is a right free speech, the right is not absolute and does have some restrictions.  Restrictions on the time, place and manner of expression are content neutral and the intermediate standard of scrutiny is applied, unlike strict scrutiny that is applied to content-based speech.  The Supreme Court ruled that the gag order is content-neutral restriction as it does not restrict Mother’s message, the order allows Mother to publicly testify in the house and/or Senate, so long as the way the speech is conveyed would not identify the Child.

This gag order passed the intermediate standard of constitutional scrutiny.  First, the regulation is within the constitutional power of the government because it involves protecting the interests of a child in the middle of a custody battle.  Second, it furthers an important or substantial government interest.  The restriction on the manner of this speech furthers an important government interest, the speech has harmed or will imminently harm the child.  Third, the restriction is not related to the content of Mother’s expressions.  Fourth, the restriction is narrow and no greater than essential to protect the Child and the Child’s identity.

Mother’s and her Attorney’s restrictions did not violate her right of free speech.  She can publicly speak about child sexual abuse, but she cannot harm her child or name her child in her speeches.  The party who was harmed in this matter, was not Mother or Father, it was the Child.  Sometimes litigation is necessary but protecting the best interest of the Child should always be the priority.