Summary
In S.B., our Supreme Court addressed the constitutionality of a court order, specifically, a gag order that prohibited a party and her counsel from speaking publicly about the case.
Summary of this case from Oberholzer v. GalapoOpinion
No. 39 WAP 2019
12-22-2020
S.B. v. S.S. Appeal of: S.S., Richard Ducote, Esquire, and Victoria McIntyre, Esquire
In this appeal, we examine an order entered in a custody matter that places restrictions on the speech of a parent and her counsel to determine whether the order violates the right to free speech as guaranteed by the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. Finding that the order restricted only the manner of speech and not the content, the Superior Court upheld the order, concluding that the restriction of speech furthered the important governmental interest of protecting the psychological well-being and the privacy of the child at the center of the custody dispute. For the reasons set forth herein, we affirm the judgment of the Superior Court.
I. Background
At the heart of this case is a protracted and contentious battle between S.B. ("Father") and S.S. ("Mother") over the custody of their son, F.B.H. ("Child"), who was born in 2006. In 2007, Father adopted Child with his first wife, who died in 2008, when Child was two years old. For the next four years, Father raised Child on his own, with continued support from his first wife's extended family. In September of 2012, Father married Mother, who adopted Child in 2013. The marital union was short-lived, as later that year, Mother and Father separated and entered into a custody agreement. In June of 2015, Father filed an action seeking custody of Child, and Mother later counterclaimed for primary custody. Following a hearing on October 9, 2015, an interim custody order was entered, which expanded Father's custody time. Five days later, Mother filed a protection from abuse ("PFA") petition on behalf of herself and Child, alleging that Father had sexually abused Child. Accordingly, the trial court entered a temporary PFA order, limiting Father's contact with Child.
In an effort to protect Child's identity, we set forth only those facts necessary to resolve this appeal.
The precise details of the custody agreement are not relevant to this appeal.
The trial court subsequently conducted a five-day trial to address the claims set forth in the PFA petition. Discrediting the allegations of sexual abuse, the trial court dismissed Mother's PFA petition, vacated the temporary PFA order, and granted Father supervised partial custody. On February 2, 2016, a few weeks after the trial court scheduled a custody trial for later that year, Mother filed a second PFA petition, again alleging Father's sexual abuse of Child. The trial court subsequently denied the second PFA petition.
On May 20, 2016, the trial court commenced the custody trial, which spanned over twenty-three days, and ultimately concluded on November 18, 2016. At trial, the parties presented twenty-four witnesses, including Mother, Father, Child, and Child's Guardian ad litem , and the trial court also admitted nearly two hundred exhibits. On December 12, 2016, the trial court entered an order, which the court amended on December 14, 2016, granting Father sole legal and physical custody of Child. The orders also directed Father and Child to participate in the Family Bridges Workshop for Troubled and Alienated Parent-Child Relationships, and ordered Mother not to have any contact or partial custody with Child for a period of ninety days.
At the time the trial court entered its final custody order, it had been almost one year since Father was able to have contact with Child. See Trial Court Opinion, 1/30/2017, at 6.
In an opinion dated December 22, 2016, the trial court explained its ruling and set forth detailed findings of fact. Relevant here, the trial court concluded that Father did not sexually abuse Child. The court reached this conclusion after evaluating Child's testimony in open court; reviewing videos of forensic interviews in which Child made detailed allegations of purported sexual abuse; reading Child's testimony in the PFA proceeding, which had been introduced into the record of the custody trial; listening to the testimony of experts who evaluated Father; and considering the testimony of witnesses who had observed the nature of the relationships between both Father and Child and Mother and Child, before and after the allegations were made. The trial court explained that the details of Child's in-court descriptions of the alleged sexual abuse were not credible and that the timing of the allegations were suspect, i.e. , they arose shortly after Father's partial custody time had been expanded.
To be precise, the trial court did not believe that Child deliberately lied. Rather, the court reasoned that Child may have believed that abuse occurred years earlier, but Child's testimony contained statements that were "simply not true and which [were] contradicted by other credible evidence." Trial Court Opinion, 12/22/2016, at 7. The trial court further relied upon expert testimony, establishing that Father "is a low risk to perpetrate physical, psychological, emotional, or sexual abuse." Id. at 8. Finally, the trial court concluded that Mother had isolated Child from everything he knew before she adopted him, and alienated Child from Father, as well as Child's extended family. Id. at 53, 55.
The Superior Court affirmed the trial court's custody order in a memorandum opinion filed on October 20, 2017, holding that the record supported the trial court's findings that Mother alienated Child from Father, and that Father did not sexually abuse Child. Mother filed a petition for allowance of appeal in this Court, which we denied on February 22, 2018. S.B. v. S.S., 645 Pa. 692, 182 A.3d 430 (2018).
Meanwhile, on February 7, 2018, a few weeks prior to this Court's denial of allocatur in the custody matter, Mother's attorney Richard Ducote, Esquire, held a press conference on the online video-sharing platform, YOUTube, expressing Mother's fervent disagreement with the trial court's findings and orders in the custody matter. Mother has described the press conference as a means to draw "attention to child sexual abuse victims everywhere and the role of the courts in granting custody of children to their identified abusers." Brief for Appellant at 5. According to Mother, "[a]dvocates and parents from various organizations around the country gathered at the press conference to shed light upon and to educate the public about the ways that family courts nationwide have been failing child abuse victims, as well as to highlight pending legislation in the United States House of Representatives and the Pennsylvania legislature." Id. at 5-6.
While Child was not named during the press conference, Attorney Ducote identified Mother by name and, notably, included a link providing access to a reproduction of Child's in-court testimony and forensic interview, during which Child sets forth detailed allegations of Father's sexual abuse, which the trial court had deemed unfounded. Mother's name is included in these documents, while Child's name is redacted and replaced by the first letter of his first name. However, Child obviously could have been identified by virtue of the disclosure of Mother's identity.
Further, on February 28, 2018, an article about the custody matter appeared in the Pittsburgh City Paper , quoting the identical intimate and detailed account of Child's sexual abuse allegations that were highlighted in Mother's press conference. See Rebecca Addison, Children's advocates say family courts unfairly favor father, even when they're the abusers , PITTSBURGH CITY PAPER (February 28, 2018). Although the article did not state the name of Child, Mother, or Father, it referenced Child's age, the first name of Child's best friend, and the fact that Attorney Ducote had represented the mother in the custody matter. The article asserted that the Pennsylvania Legislature was considering a bill to require additional training for court personnel in child custody cases to prevent courts from granting custody of children to fathers who abused them.
On April 19, 2018, Father filed a motion for sanctions and other relief in the trial court, seeking an order prohibiting Mother and her counsel (Richard Ducote, Esquire, and Victoria McIntyre, Esquire) from speaking publically about the case in any forum, directing them to remove any information about the case that they had posted publically or disseminated, and imposing monetary sanctions.
By order dated April 27, 2018, the trial court denied Father's motion for sanctions because there had been no court orders preventing the parties from speaking publically about the custody matter at that time, and the record had not been sealed. The trial court's order, however, granted in part Father's motion for other relief, stating:
The trial court record in this case remains unsealed.
It is hereby ORDERED that [Mother]; Richard Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications. The following is also ORDERED.
1. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall NOT direct or encourage third parties to speak publicly or communicate about this case including, but not limited to, print and broadcast media, online or web-based communications, or inviting the public to view existing online or web-based publications.
2. [Mother]; Richard Ducote, Esquire; and Virginia McIntyre may provide public testimony in the State House and/or Senate and in the United States Congress and Senate about parent alienation, sexual abuse of children in general or as it relates to this case. However, in providing such testimony, they shall NOT disclose any information that would identify or tend to identify the Child. [Mother] shall NOT publically state her name, the name of the Child or [Father's] name. Attorney Ducote and Attorney McIntyre shall NOT publically refer to [Mother], the Child, or [Father] by name or in any manner that would tend to identify the aforementioned parties.
3. [Mother] and Counsel shall remove information about this case, which has been publically posted by [Mother] or Counsel, including but not limited to, the press release, the press conference on the YouTube site, the Drop Box and its contents, and other online information accessible to the public, within twenty-four (24) hours. [Mother] and Counsel shall download or place the aforementioned information onto a thumb drive, which shall be filed with this court.
The Oral Motion to Stay This Order of Court, made [on] behalf of [Mother] is DENIED .
This Order does not prohibit any party or counsel from publicly speaking or expressing an opinion about the Judge, including disclosing the entry of this Order of Court, after the information has been removed as set forth, above. However, such expression shall NOT contain the name of the Child or other information, which would tend to identify the Child.
Trial Court Order, 4/27/18, at 1-2 (hereinafter "gag order") (emphasis in original).
On the same day, the trial court issued extensive findings of fact in support of its order. Therein, the trial court found that because Child attended a small private school where both faculty, students, and parents were likely to know each other, the release of Mother's full name in the media identifies Child as the young boy who provided the graphic testimony about the alleged sexual abuse. Findings of Fact, 4/27/2018, at ¶¶ 12-14. The trial court found that "the disclosure of the identity of [Child] in this case is harmful and clearly not in his best interest as there is clearly the potential for curious parents, teachers and students in his school to read this information, which could subject him to undue scrutiny, ridicule and scorn." Id. at 15. While the trial court indicated a willingness to support the transparency of court proceedings and the constitutional right to free speech, it recognized "the harm that thoughtless, vexatious, and vengeful speech can cause a young child caught in the middle of a high-conflict custody battle." Id. at 17. Under the circumstances presented, the trial court opined that the right of Child to be free from "undue scrutiny, ridicule, or scorn, outweighs the rights of Mother and her attorney to engage in thoughtless, toxic, misleading and vengeful discourse about this case." Id. at 18. Mother and her counsel ("Appellants") filed a notice of appeal.
The trial court additionally found that the actions of Attorney Ducote "bordered on professional misconduct." Id.
In their statement of matters complained of on appeal, Appellants contended that the trial court abused its discretion by entering the gag order, which they alleged constituted both a content-based speech restriction and a prior restraint on the content of speech that prohibited them from speaking publicly or communicating about the case in violation of their right to free speech under the United States and Pennsylvania Constitutions. The trial court strongly disagreed with Appellants’ categorization of the gag order as content-based. Trial Court Opinion, 7/6/2018, at 3. Finding no case law directly on point, the trial court examined jurisprudence relating to the sealing of open records and the closure of court proceedings. The court acknowledged that while courts are presumptively open, the Juvenile Act recognizes the need to shield children from harmful public scrutiny in delinquency and dependency matters. Id. , at 3-4 (citing 42 Pa.C.S. § 6336(d) (providing that "the general public shall be excluded from hearings under [Chapter 63 of the Juvenile Act]") and 42 Pa.C.S. § 6308 (providing for limited public access to records relating to juvenile proceedings)).
The First Amendment to the United States Constitution, entitled, "Religious and political freedom," provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. Amend. I.
Article I, Section 7 of the Pennsylvania Constitution, entitled "Freedom of press and speech; libels," provides, in relevant part, that "[t]he free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty..." Pa. Const. Art. I, § 7.
The trial court further cited divorce hearings as another type of proceeding which courts may close to protect rights of parties upon a showing of good cause. Id. at 4 (citing Pa.R.C.P. 223(4) (permitting the court to enforce rules and orders to exclude the public or persons not interested in the proceedings when the court deems such exclusion to be in the interest of the public good, order or morals)).
In deciding to restrict Appellants’ speech, the court indicated that it considered whether Appellants’ conduct and speech tended to identify Child; whether their conduct and speech was harmful to Child; and whether Child's right to be free from undue scrutiny, ridicule and scorn outweighed Appellants’ right to "engage in thoughtless, toxic, misleading, and vengeful discourse about this case." Id. Based on its specific findings of fact of April 27, 2018, set forth supra, the trial court found good cause to restrict Appellants’ speech.
The Superior Court affirmed, finding that the gag order was constitutionally permissible. S.B. v. S.S. , 201 A.3d 774 (Pa. Super. 2018). Initially, the court recognized that Appellants’ claim implicated the fundamental right to the free exercise of speech as guaranteed by the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. The court observed that when the government restricts expression due to the content of the message being conveyed, the restrictions are permitted only if they pass the strict scrutiny standard, which requires the government to demonstrate that the restrictions are narrowly tailored to serve a compelling state interest. S.B. v. S.S ., 201 A.3d at 781 (citing Republican Party of Minnesota v. White , 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) ).
The Superior Court reasoned, however, that where the government applies a content-neutral regulation to expressive conduct, the intermediate scrutiny standard set forth in U.S. v. O'Brien , 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), applies, which justifies the regulation if: "(1) promulgation of the regulation is within the constitutional power of the government; (2) the regulation furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest." S.B. v. S.S. , 201 A.3d at 781 (citing O'Brien , 391 U.S. at 377, 88 S.Ct. 1673 ). The Superior Court observed that the "princip[al] inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Id. (citing Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) ).
Interpreting the gag order's proscription as limited to any information that would identify or tend to identify Child, the Superior Court found that the gag order was content-neutral. Id. at 782. The court reasoned that the gag order "is not concerned with the content of Mother and her attorneys’ speech, but instead, with the target of the speech, namely, Child, a juvenile whose identity and privacy the court seeks to protect." Id. (emphasis in original). The court further reasoned that the "power of the parent, even when linked to a free exercise clause claim, may be subject to limitation ... if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens." Id. (citing Shepp v. Shepp , 588 Pa. 691, 906 A.2d 1165, 1173 (2006) (internal citation omitted)).
As noted infra , Shepp involved a constitutional challenge to a custody order prohibiting a father of Mormon faith from teaching his minor child about polygamy, which is a crime in Pennsylvania. The case highlighted the tension arising between the First Amendment right to free exercise of religion and the Commonwealth's declaration of policy set forth in 23 Pa.C.S. § 5301 (repealed), to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and a sharing of the rights and responsibilities of child-rearing by both parents when in the best interest of the child. This Court held that a court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime if it is established that the parent's conduct "would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens." Shepp , 906 A.2d at 1174.
Reiterating the trial court's findings that the allegations of sexual abuse by Father were unsubstantiated and that Child suffered emotional trauma from the "strife between the parents," the Superior Court concluded that the "perpetration and magnification of that strife in the media .... would exacerbate the harm to Child and constitute an egregious invasion of Child's privacy." Id. In the Superior Court's view, the aim of the gag order was "to promote the best interests of Child by protecting his privacy and concealing his identity," while permitting ample alternative channels for Mother and her attorneys to provide public testimony relating to the broader issues implicated by the custody matter. Id.
Finally, the Superior Court rejected Mother's contention that the gag order's terms were unconstitutionally vague or overly broad, finding instead that the order is "clear and narrowly tailored." Id. at 783. The court opined that "a person of ordinary intelligence would read the order to forbid exactly what Mother wanted to do: take her case to the media." Id. The Superior Court found that the gag order's limited restriction made clear that Mother and her counsel may not discuss anything that will harm Child. Id. Accordingly, the Superior Court stated, "Viewing the gag order in light of the above-referenced intermediate test applicable to content-neutral, governmental restrictions on speech, we determine that the order is constitutionally permissible." Id. The court further concluded that the order is "narrowly-tailored to advance a substantial government interest at stake, i.e. , safeguarding children from various kinds of physical and emotional harm and promoting their well-being, while remaining open to other channels of communication available to Mother and her attorneys." Id. at 784.
The Superior Court further reminded Attorney Ducote and Attorney McIntyre of their ethical obligations under the Pennsylvania Rules of Professional Conduct. Id. at n.3.
We granted allocatur in this case to address the following issue:
In a child custody case, did the Pennsylvania Superior Court err in affirming the gag order in violation of [Appellants’] rights under the First and Fourteenth Amendments to the United States Constitution and Article I, § 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?
S.B. v. S.S. , ––– Pa. ––––, 217 A.3d 806 (2019).
II. The Parties’ Arguments
Appellants contend that the Superior Court's affirmance of the gag order violates their constitutional rights to free speech as the order constitutes "freewheeling censorship" that prohibits them indefinitely from speaking about the case in any manner, while imposing no restrictions on Father's speech. Brief for Appellants at 9. Categorizing the gag order as both a content-based restriction and a prior restraint on speech, Appellants posit that the heightened constitutional standard of strict scrutiny must apply. They maintain that because there is no compelling state interest supporting the imposition of an indefinite and total restraint upon their speech, the gag order cannot stand.
Appellants make no distinctions in their arguments relating to the restriction of speech of a parent in a custody proceeding, as opposed to restriction of the speech of an attorney representing a parent in that matter.
Relating to the claim that the gag order constitutes a content-based restriction on speech, Appellants’ position begins with the premise that content-based restrictions require the government to satisfy the strict scrutiny standard to pass constitutional muster. Brief for Appellant at 10 (citing Turner Broad. Sys. Inc. v. F.C.C. , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (internal citation omitted) (holding that "[o]ur precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content")). They contend that the gag order's plain language constitutes a total prohibition against speaking publicly about the custody case in any manner, not only in a manner that identifies Child, as held by the Superior Court.
In support of this contention, Appellants rely exclusively upon the following sentence in the order: "It is hereby ORDERED that [Mother]; Richard Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications." Trial Court Order, 4/27/2018, at 1. Ignoring the remaining text of the gag order, Appellants view the speech restriction as constituting a total ban on speech of a particular topic, i.e. , Child's custody proceeding, which, they argue, renders the regulation of speech content-based.
Concerning the prior restraint claim, Appellants assert that the gag order falls under this category as it restricts their speech prior to them uttering it, thereby rendering the gag order presumptively unconstitutional under both our state and federal charters. Recognizing that prior restraints on speech are not unconstitutional per se , Appellants observe that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights," and that a prior restraint bears a heavy presumption against its constitutional validity, which cannot be overcome here. Brief for Appellants at 10 (citing Nebraska Press Association v. Stuart , 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ). Appellants assert that the Superior Court's opinion in this case fails to discuss their claim that the gag order constitutes a prior restraint on the content of their speech. Brief for Appellant at 17.
Rather than setting forth a compelling state interest to support a prior restraint on speech or a content-based restriction on speech, Appellants contend that the lower courts "provided irrelevant and spurious ‘justifications’ for the gag order which are devoid of any legal significance." Brief for Appellants at 18. They acknowledge that this Court in Shepp, supra, observed that the Commonwealth may, in limited circumstances, infringe upon a parent's right to free speech to avoid harm to a child's welfare. Appellants submit, however, that a restriction on speech cannot occur "unless a court finds that a parent's speech is causing or will cause harm to a child's welfare." Brief for Appellant at 19. They contend that the lower courts cited no evidence that the restricted future speech would result in real harm or danger to Child. Appellants posit that a finding of harm to Child's welfare here, based upon a generalized theory that children may be harmed by the disclosure of negative personal information during custody litigation, would abrogate parents’ First Amendment protections in all custody proceedings. Further, they assert that if Child's interests were truly compromised by public speech about the custody matter, the gag order would have prohibited speech by all parties with knowledge of the case, not only the speech of Mother and her counsel. Discounting that harm would befall Child and similar children in custody matters if public speech were not, in certain circumstances, restrained, Appellants submit that federal courts have chosen to "sacrifice" First Amendment values in criminal cases where the regulated speech affected the fairness of the trial or threatened the administration of justice by influencing a jury, and not in child custody proceedings, which have no jury to taint. Brief for Appellants at 20-21. Similarly, they argue, the trial court's reliance upon children's privacy interests at risk in delinquency and dependency proceedings have little, if anything, to contribute to the First Amendment issues at play here. Appellants further assert, with little elaboration, that other state courts which have addressed gag orders in custody proceedings have found them to be unconstitutional. Id. at 21 n.54.
While Appellants observe that the gag order restricts their speech and not Father's speech, they forward no claim that this fact alone invalidates the order. The essence of the trial court's ruling was that it was necessary to impose the gag order on Mother and her counsel, as they were the only trial participants taking the case to the media to the detriment of Child. This case does not involve a scenario where there was a danger of both parents disclosing intimate facts that would harm the psychological well-being and privacy interests of the child and the court restrained only the speech of one parent.
Appellants additionally argue that the gag order's terms are vague and overly broad, as it is difficult to ascertain what speech is precluded and the prohibitions restrict more speech than is necessary under the circumstances. In support of their argument, Appellants cite language in the gag order prohibiting them from "encouraging" third parties to speak publicly or communicate about this case, as well as language precluding them from speaking publicly or communicating in any manner that would "tend to" identify Child. In their view, there is no clear standard by which to judge whether one's actions violate these vague mandates. Most egregiously, Appellants submit, the gag order prohibits them from publicly stating Mother's name when testifying before legislative bodies about parental alienation or sexual abuse of children in general, or as it relates to this case. They further assert that because there is no temporal limit on the speech restriction, the gag order silences their speech relating to Child's custody proceedings well beyond Child's eighteenth birthday.
In addition to their First Amendment challenge, Appellants also claim that the gag order violates Article I, Section 7, of the Pennsylvania Constitution because the Commonwealth's charter affords broader protection than the First Amendment. Brief for Appellants at 11-12 (citing Pap's A.M. v. City of Erie , 571 Pa. 375, 812 A.2d 591, 603 (2002) (explaining that Article I, Section 7 of the Pennsylvania Constitution provides additional protections than its federal counterpart as "it guarantees not only freedom of speech and the press, but specifically affirms the ‘invaluable right’ to the ‘free communication of thoughts and opinions,’ and the right of ‘every citizen’ to ‘speak freely’ on ‘any subject’ so long as that liberty is not abused")).
Finally, Appellants contend that there are significant public policy considerations that mandate this Court's reversal of the gag order. See Brief for Appellants at 35-36, 37 (asserting that "the gag order muzzles Appellants’ voices from not only the nationwide problem of family courts failing to protect sexually abused children in custody cases, but also from discussing the details of this case in light of other relevant important discourse;" and that upholding the gag order "sends a message ... that others in a comparable position should err on the side of silence when considering speaking out, for fear of similar constitutional and financial harms"). In response, Father contends that the Superior Court did not err in affirming the trial court's carefully-tailored restriction of Appellants’ speech, after concluding that the speech was harmful and dangerous to Child's psychological and emotional well-being. Initially, he highlights the factual findings made by the trial court in both the underlying custody matter, which are not at issue herein, and in the present gag order litigation, which he contends are supported by the record. Father reminds this Court that the trial court's custody decision was based upon the finding that it was not Father, but Mother who posed a danger to Child.
Father emphasizes that Mother's allegations that he sexually abused Child arose soon after an order was entered increasing his custody time with Child, and that Mother subsequently alienated Child from Father and the rest of Child's family. Brief for Appellee at 2 n.3 (citing S.B. v. S.S. , 74 WDA 2017, 2017 WL 4848400 (Pa. Super. 2017), at 11-12 (stating, "The core of this custody case is not allegations of sexual abuse; it is isolation and alienation. Child's vulnerability and susceptibility to Mother's influence ... is not lost on this Court. Our review of the record indicates that Mother has systematically engineered an isolation plan, at Child's psychological expense.")). He further reiterates that Appellants placed the story with the news media by holding an online press conference that provided access to select graphic and misleading materials, such as Child's testimony and forensic interview regarding the allegations of sexual abuse by Father, which had been deemed unfounded.
Acknowledging Child's specific allegations of sexual abuse against him, Father explains that Child's sexual descriptions "were delivered cheerfully by rote without suggestion of trauma, resembled not actual sex acts but a child's imagination thereof, were highly inconsistent and evolved and escalated precisely in tandem with Mother's litigation needs, [and] were delivered only after many months of isolation by Mother from all who loved [Child]." Brief for Appellee at 3 n.4. Father further asserts that Child's allegations of sexual abuse "were accompanied in evidence by an audiotape of [Child] weeping privately to Mother that he could not remember the abuse Mother insisted he had endured, and Mother's assurance that he would eventually remember it if he continued to describe it." Id.
As to the pertinent legal analysis, Father adopts the reasoning of the lower courts in this matter. While not disputing Appellants’ primary contention regarding the deference afforded to the constitutionally protected right to free speech, Father takes the position that no rights, not even fundamental ones, are unconditional. Contrary to Appellants’ contention that their right to free speech may not be limited at all under the circumstances presented, Father posits that the trial court acted within constitutional boundaries when imposing the narrow restrictions on Appellants’ speech based upon the detailed findings of fact establishing that the challenged speech in the custody matter would expose Child to undue ridicule, scorn, and scrutiny.
In Father's view, the speech restriction focuses upon Child as the target of the speech, as opposed to the content of Appellants’ message. Thus, he concludes, the restriction on speech need not be subject to the highest constitutional standard of strict scrutiny and, instead, is constitutional as it furthers the important governmental interest of safeguarding the well-being and privacy of Child, who is caught in the midst of a contentious custody proceeding.
Finally, Father submits that the gag order's terms are not vague or overly broad. He maintains that the order clearly provides that Appellants can speak publicly about the issues of parental alienation or child sexual abuse, either generally or as those topics relate to this case specifically, but may not do so in a manner that identifies Child. Similarly, Father contends, the gag order permits Appellants to express opinions about the trial court judge and the entry of the custody order in this case, so long as those expressions do not disclose Child's identity. Thus, he concludes, a person of ordinary intelligence would know that the gag order restrains only speech that identifies Child and subjects Child to psychological harm. Accordingly, Father urges this Court to affirm the Superior Court's judgment that upheld the constitutionality of the trial court's gag order.
III. Analysis
As Appellants challenge the gag order on the ground that it violates the right to free speech as guaranteed by the state and federal constitutions, their appeal presents questions of law for which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Davis , ––– Pa. ––––, 220 A.3d 534, 540 (2019). In conducting our inquiry, we acknowledge that "in cases raising First Amendment issues ... an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’ " Gentile v. State Bar of Nevada , 501 U.S. 1030, 1038, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (internal citation omitted).
Appellants’ claim clearly implicates the fundamental right to the free exercise of speech as guaranteed by the First Amendment to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution. We first examine Appellants’ challenge under the United States Constitution. Ratified in 1791, the First Amendment provides, in relevant part, that Congress shall make no law "abridging the freedom of speech." U.S. CONST. AMEND . I ; Barr v. Am. Ass'n of Political Consultants , ––– U.S. ––––, 140 S.Ct. 2335, 2346, 207 L.Ed.2d 784 (2020). The First Amendment's free-speech clause is made applicable to the states through the Fourteenth Amendment. Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1928, 204 L.Ed.2d 405 (2019).
It is beyond cavil that our political and cultural lives rest upon the principle, guaranteed by the First Amendment, "that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broad. Sys. v. FCC , 512 U.S. at 641, 114 S.Ct. 2445. Accordingly, the First Amendment precludes the government from restricting expression due to its message, ideas, subject matter, or content. Police Dept. of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). One's constitutional right to free speech, however, while fundamental, is not absolute. Neb. Press Ass'n , 427 U.S. at 570, 96 S.Ct. 2791. Freedom of speech "does not comprehend the right to speak on any subject at any time." American Communications Assn. v. Douds , 339 U.S. 382, 394, 70 S.Ct. 674, 94 L.Ed. 925 (1950). Instead, First Amendment freedoms must be "applied in light of the special characteristics of the [relevant] environment." Tinker v. Des Moines Indep. Community Sch. Dist. , 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).
Keeping in mind these general principles, we first consider the nature of the restriction placed on Appellants’ speech.
A. Nature of Speech Restriction
It is well-established that content-based restrictions on speech are presumptively unconstitutional and are subject to the strict scrutiny standard, which requires the government to prove that the restrictions are narrowly tailored to serve a compelling state interest. Reed v. Town of Gilbert , 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). "Government regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed." Id.
Determining whether a particular restriction on speech is content based or content neutral is not always a simple endeavor. Turner Broad. Sys. , 512 U.S. at 642, 114 S.Ct. 2445. A restriction is content based if either the face of the regulation or the purpose of the regulation is based upon the message the speaker is conveying. Reed , 576 U.S. at 163-64, 135 S.Ct. 2218. See e.g. , Barr , supra (holding that a federal statute permitting only those robocalls that relate to the collection of government debt is clearly a content-based restriction on speech because the law favors speech made for collecting government debt over political and other speech).
To the contrary, "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Turner Broad. Sys. , 512 U.S. at 642, 114 S.Ct. 2445 (internal citation omitted). A content-neutral regulation of speech passes constitutional muster if it satisfies the following four-part standard set forth by the High Court in United States v. O'Brien , supra : (1) the regulation was promulgated within the constitutional power of government; (2) the regulation furthers an important or substantial governmental interest; (3) the government interest is unrelated to the suppression of free expression; and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. United States v. O'Brien , 391 U.S. at 377, 88 S.Ct. 1673.
So long as the regulation of speech is not a means, subtle or otherwise, of exercising content preference, it is not presumed invalid. See Turner Broad. Sys. , supra (deeming the challenged statute content neutral because the face of the statute distinguishes between speakers in the television programming market based only on the manner in which the programmers transmit their messages to viewers, not the content of the messages they carry, and the purpose for which the statute was enacted is also unrelated to content).
Restrictions on the time, place and manner of expression, whether oral, written or symbolized by conduct, are a form of a content-neutral regulation of speech. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). These restrictions may make it more difficult for an individual to engage in a desired speech-related activity by targeting, inter alia , the means of speech or the method of communication, but they do not target the content of the message ultimately conveyed. Time, place, and manner restrictions are valid, provided that they: (1) are justified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant governmental interest unrelated to speech; and (3) leave open ample alternative channels for communication of the information. Id. The High Court has explained that "[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. 2746 (internal citation omitted). The government's purpose of the speech restriction is the controlling consideration and, if the purpose is unrelated to the expression of content, the restriction is deemed neutral, even though the speech restriction may have an incidental effect on some speakers or messages, but not others. Id.
The United States Supreme Court has clarified that "a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so." Ward v. Rock Against Racism , 491 U.S. at 798, 109 S.Ct. 2746.
While the precise text of the two constitutional standards differ (i.e. , the O'Brien standard employed to determine whether a regulation of speech is content neutral and the specific standard applicable to time, place, and manner restrictions on speech), the High Court has clarified that the O'Brien standard "is little, if any, different from the standard applied to time, place, or manner restrictions." Community for Creative Non-Violence , 468 U.S. at 298, 104 S.Ct. 3065.
Viewing the gag order in accord with this federal jurisprudence, we conclude that, when read in its entirety, the order constitutes a content-neutral restriction on the manner by which Appellants may convey their public speech, which was imposed for the exclusive purpose of protecting the psychological well-being and privacy of Child, and was not intended to, and, indeed, does not restrict Appellants’ message.
Respectfully, contrary to Justice Wecht's dissenting opinion, which focuses primarily upon that portion of the gag order precluding Appellants from "speak[ing] publicly or communicat[ing] about" the custody matter, our constitutional analysis is based upon consideration of the gag order in its entirety. As demonstrated throughout, the language of the gag order is nuanced uniquely and tailored to circumvent a specific manner of public speech that was found, based upon an extensive factual record, to cause imminent harm to Child, and does not discriminate based upon the content of the message conveyed. For this reason, the out-of-state cases cited by the dissenting opinion are wholly distinguishable as they involve gag orders that contain proscriptions distinct from those at issue in this appeal and circumstances unlike those presented herein.
In this regard, we respectfully reject Appellants’ contention that the gag order constitutes a total ban on all speech relating to the topic of Child's custody proceeding, as we find such contention unsupported by the order's plain text and its clearly articulated purpose. To illustrate, the gag order begins with language providing that Appellants shall not "speak publicly or communicate about this case." Trial Court Order, 4/27/18, at 1. It further provides for two additional restrictions: (1) providing that Appellants shall not "direct or encourage third parties to speak publicly or communicate about this case;" and (2) requiring Appellants to remove within twenty-four hours information publicly posted about this case. Id. at 1-2.
Germane to this appeal, the gag order includes additional provisions expressly permitting public speech relating to Child's custody proceeding if conveyed in a particular manner. The gag order states that Appellants may "provide public testimony in the State House and/or Senate and in the United States Congress and Senate about parent alienation, sexual abuse of children in general or as it relates to this case," so long as their speech is not conveyed in a manner that would identify Child, such as publicly stating Mother's name, or publicly referring to either parent or Child. Id. Finally, the gag order clarifies what speech is not proscribed. It states that the order "does not prohibit any party or counsel from publicly speaking or expressing an opinion about the Judge, including disclosing the entry of this Order of Court," after the enumerated posted information has been removed and as long as Child's identity is not disclosed by the communication. Id. at 2.
A careful review of this language reveals that, contrary to Appellants’ assertions, the gag order in no way silences them from expressing all of their views on important issues relating to the custody proceeding. Indeed, while the gag order precludes Appellants from speaking publicly about "this case," when read in context, the order affords Appellants ample opportunity to disseminate all of their thoughts into the marketplace of ideas without restriction on the content of their message. The gag order further allows Appellants to voice all of their opinions regarding issues important to them, including parental alienation, child sexual abuse, and placement of children in the custody of sexually abusive parents, and to testify about these issues before governmental bodies in an effort to remedy these vital societal concerns. The only limitation on Appellants’ speech lies in the manner of communication, as they are precluded from conveying such public speech in a way that exposes Child's identity and subjects him to harm. Thus, the order does not deny Appellants the opportunity to be the catalyst for social or political change. See Meyer v. Grant , 486 U.S. 414, 421, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988) (internal citation omitted) (observing that the "First Amendment was fashioned to assure unfettered exchange of ideas for the bringing about of political and social changes desired by the people").
The gag order also does not discriminate against speech relating to the trial court's actual entry of the gag order itself or speech criticizing the trial court's judgment in issuing that order. As noted, once Appellants remove from the public domain the enumerated information found to be harmful to Child, they are free to criticize the trial court's decision, assuming they do so in a manner that does not disclose Child's identity. Hence, the gag order places no restraint on Appellants’ message regarding the governmental actions that were taken in connection with Child's custody case. See Mills v. Alabama , 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (observing that "[w]hatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that amendment was to protect the free discussion of governmental affairs").
Under these circumstances, we hold that the gag order is content neutral, as the restrictions therein were not motivated by hostility toward Appellants’ message and targeted only the method of communication for the exclusive purpose of protecting the psychological well-being and privacy of Child. Accordingly, the heightened constitutional standard of strict scrutiny is inapplicable. Instead, we proceed to apply the intermediate standard of constitutional scrutiny set forth in United States v . O'Brien, supra , as well as the similar federal precedent applicable to restrictions placed on the time, place, and manner of speech.
B. O'Brien Factors
1. Constitutional Power of Government
The first O'Brien factor involves a determination of whether the regulation of speech was promulgated within the constitutional power of government. This factor requires little discussion and has scant import here as no party contends that, aside from its effect on free speech rights, protecting the interests of a child subject to a custody determination is beyond the constitutional power of the judiciary. This first factor, is, thus, clearly satisfied.
2. Furtherance of an Important or Substantial Governmental Interest
The second O'Brien factor requires that the speech restriction further an important or substantial governmental interest. In this appeal, determining the degree of importance of the governmental interest asserted requires the balancing of Appellants’ interest in unfettered expression of free speech against Child's interest in psychological and emotional well-being and privacy. We observe that strikingly absent from Appellants’ fervent efforts to safeguard their fundamental right to free speech is any acknowledgment that the cost of exercising that right is the curtailment of Child's right to freedom from lasting psychological and emotional trauma in derogation of his overall best interests.
For the reasons set forth infra , we find that the trial court correctly concluded that the justifications for the speech restrictions contained in the gag order are, without question, important and substantial, and that Child's right to psychological and emotional well-being and privacy outweigh Mother and Counsel's right to free speech. See Seattle Times v. Rhinehart , 467 U.S. 20, 32 n.18, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (providing that while litigants do not surrender their First Amendment rights at the door of the courthouse, those rights may be subordinated to other rights or interests that arise during trial).
As a general matter, it is well-settled that protecting a minor from psychological and physical harm serves an important governmental interest, in fact, in many circumstances, a compelling state interest. See Sable Communications of Cal , 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (acknowledging that "there is a compelling interest in protecting the physical and psychological well-being of minors"); D.P. v. G.J.P. , 636 Pa. 574, 146 A.3d 204, 211 (2016) (providing that "[b]roadly speaking, the state, acting pursuant to its parens patriae power, has a compelling interest in safeguarding children from various kinds of physical and emotion harm and promoting their well[-]being"); Hiller v. Fausey , 588 Pa. 342, 904 A.2d 875, 886 (2006) (providing that "the compelling state interest at issue in this case is the state's longstanding interest in protecting the health and emotional welfare of children").
This sentiment was expressed in our decision in Shepp v. Shepp , supra , which involved the constitutionality of a custody order prohibiting a father of Mormon faith from teaching his minor daughter about polygamy, which is a crime in Pennsylvania. Although not styled as a free speech claim, the case involved the tension arising between the First Amendment right to free exercise of religion and the Commonwealth's declaration of policy set forth in 23 Pa.C.S. § 5301 (repealed), to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and a sharing of the rights and responsibilities of child-rearing by both parents when in the best interests of the child.
Upon a review of jurisprudence relevant to a claim of free exercise of religion, this Court in Shepp held that a court may prohibit a parent from advocating religious beliefs, which, if acted upon, would constitute a crime, if it is established that the parent's conduct "would jeopardize the physical or mental health or safety of the child, or have a potential for significant social burdens." Shepp , 906 A.2d at 1174. We clarified that the "state's compelling interest to protect a child in any given case, however, is not triggered unless a court finds that a parent's speech is causing or will cause harm to a child's welfare." Id. at 1173.
In fact, Appellants concede that this Court observed in Shepp that the Commonwealth may, in limited circumstances, infringe upon a parent's right to free speech to avoid harm to a child's welfare. See Brief for Appellant at 19. They contend, however, that there was no demonstration of harm to Child resulting from their speech, and posit that the trial court "provided irrelevant and spurious ‘justifications’ for the gag order which are devoid of any legal significance." Id . at 18. Respectfully, we disagree completely, as the trial court's findings of harm to Child resulting from Appellant's speech were articulate, specific, and supported by the record.
In this most unusual custody case, where the hearing spanned over twenty-three days and the parties presented twenty-four witnesses and nearly two hundred exhibits, a review of the finding of harm should be considered in the context of the custody proceeding in its entirety. Upon hearing all the evidence and evaluating the credibility of every witness, the trial court concluded that the allegations that Child was sexually abused by Father were unfounded, and that it was Mother's actions in alienating Child from Father and his extended family that caused Child substantial harm, and not the actions of Father.
As noted, in the prior proceeding the Superior Court affirmed the order granting custody of Child to Father, holding that the record supported the trial court's finding that Mother alienated Child from Father, and that Father did not sexually abuse Child. This Court subsequently denied allocatur. Thus, we summarily reject Appellants’ attempt to challenge in this appeal the finding that Father did not sexually abuse Child.
The impetus for issuance of the gag order was Appellants’ online press conference, which contained a link to pleadings from the custody case, a transcript of Child's testimony, and a copy of Child's forensic interview, setting forth, in Child's own words, detailed allegations of sexual abuse by Father, which the trial court had found did not occur. While Child's name was not mentioned in the press conference, Mother's identity was disclosed, thereby allowing those in the community to ascertain easily the identity of Child. A few weeks later, although not identifying Child, a local paper quoted the same detailed account of Child's sexual assault allegation that had appeared in the press conference.
The sensitive nature of the information disclosed during Appellants’ press conference is troubling as it reveals Child's description of what he mistakenly thought may have occurred in terms of sexual abuse by Father. The online public posting allowing the community and the world to view Child's own words regarding his most intimate thoughts and fears of parental sexual abuse would undoubtedly leave an indelible mark on an innocent twelve-year-old boy, as will the entire protracted and contentious custody battle.
The record establishes that Child was born in 2006 and the online press conference was conducted in 2018. Thus, Child would have been about twelve years of age at the time.
The trial court made specific factual findings, explaining that Appellants’ quest to take the custody case to the media was particularly harmful to Child and not in his best interests because when parents, students and teachers in Child's small private school read the graphic account, it will subject Child to "undue scrutiny, ridicule, and scorn." Trial Court Opinion, 7/6/2018, at 6. While appreciating Appellants’ competing First Amendment rights, the trial court recognized "the harm that thoughtless, vexatious, and vengeful speech can cause a young child caught in the middle of a high-conflict custody battle." Id. We concur in the trial court's assessment in this regard.
As these facts demonstrate, it would be inappropriate for this Court to conclude that Appellants’ First Amendment rights render a trial court in a custody proceeding powerless to safeguard a child from threatened psychological harm stemming from the manner by which a parent delivers his or her speech. Otherwise, an innocent child in a custody proceeding could be become a public spectacle during the very judicial process that is intended to promote the child's best interests. The First Amendment does not require such a result.
Accordingly, to balance the important interests at stake, we hold that a restriction on the manner of parental speech in a custody case furthers an important governmental interest where there is a substantial likelihood that the restrained speech has harmed or will imminently harm the child. Finding that such justification has been satisfied here, we conclude that the second O'Brien factor has been clearly established.
3. Governmental Interest Unrelated to Suppression of Free Expression
We have already concluded that the justification of the gag order, to protect the psychological well-being and privacy of Child, is unrelated to the suppression of the content of Appellants’ expression, thereby satisfying the third prong of the O'Brien standard.
4. Incidental Restriction is No Greater Than Essential
In legal parlance, this fourth prong of the O'Brien test (i.e. , that the incidental restriction on speech is no greater than is essential to the furtherance of that interest) is identified more readily by the nomenclature employed in jurisprudence discussing time, place, and manner restrictions, i.e. , requiring the restriction on speech to be "narrowly tailored" to serve the articulated governmental interest. Ward , 491 U.S. at 798, 109 S.Ct. 2746. Appellants contend that the gag order is not narrowly tailored, but contains overly broad terms that prohibit all speech on the topic of the Child custody proceeding.
As noted, the High Court has clarified that while a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government's legitimate, content-neutral interests, the government need not employ "the least restrictive or least intrusive means of doing so." Id.
We have already examined at length Appellants’ contention in this regard, and have concluded that it is unsupported by the text and articulated purpose of the gag order. As discussed extensively throughout, although the gag order contains the restriction directing Appellants not to speak publicly about "this case," when read in context the order affords Appellants ample opportunity to disseminate their thoughts into the marketplace of ideas without restriction on the content of their message, to voice their opinions regarding issues important to them, including the societal concerns involved in this custody case and the propriety of the trial court's rulings, and to testify about these concerns before governmental bodies, as long as Appellants do so in a manner that protects Child's identity.
Appellants, however, offer an additional ground upon which to base a finding that the language of the order is too broad. They emphasize that the order prohibits Appellants from publicly stating Mother's name when testifying before legislative bodies about topics such as parental alienation or sexual abuse. While at first blush it may seem severe to preclude Mother from stating her name when publicly speaking about societal issues that arose in the case, the simple fact remains that public release of the identity of Mother discloses the identity of Child, undermining the essence of what the trial court was seeking to accomplish; protection of Child's psychological and emotion well-being and his privacy.
As further evidence that the gag order was narrowly crafted, we observe that the order applied only to Mother and her counsel. The trial court did not seal the record of the custody trial nor impose any prior restraints upon the press that precluded the dissemination of information relating to the custody trial. The United States Supreme Court has observed that limiting the speech of trial participants is a less restrictive alternative than imposing a prior restraint on the press itself. See e.g. Sheppard v. Maxwell , 384 U.S. 333, 361, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) (outlining less restrictive measures than imposing prior restraints on the press, including the proscription of extrajudicial statements by the parties, their counsel, witnesses, and court officials); Nebraska Press Ass'n, 427 U.S. at 564, 96 S.Ct. 2791 (same).
Rather, the trial court took the precise action that would prevent Mother and her counsel from taking their case to the media - restricting their public speech about the custody proceeding that would identify and harm Child. As discussed at length herein, the trial court went to great lengths to narrow such restriction by leaving open ample alternatives for communication of the information Appellants wanted to express, restricting only the manner by which that speech could be conveyed, i.e. , refraining from identifying Child while disseminating their message. Accordingly, we conclude that the speech restrictions contained in the gag order were narrowly tailored to further the important government interest of protecting Child.
C. Vagueness Challenge
We next address Appellants’ claim that the gag order is vague because the restrictions on speech contained therein are unclear, rendering it difficult to ascertain what conduct is prohibited. First, Appellants challenge language in the order precluding them from speaking before legislative bodies in a manner that would "tend" to identify Child. Second, they posit that the language providing that they may not "encourage" third parties to speak or communicate publicly about the case is vague, as it is capable of multiple interpretations. Finally, Appellants maintain that the duration of the gag order is unclear as it sets forth no expiration date.
An unconstitutionally vague law is one that fails to give a person of ordinary intelligence fair notice that his or her contemplated conduct is forbidden by law. Papachristou v. City of Jacksonville , 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). Restraints on speech must include "some sensible basis for distinguishing what may come in from what must stay out." Minn. Voters Alliance v. Mansky , ––– U.S. ––––, 138 S.Ct. 1876, 1888, 201 L.Ed.2d 201 (2018). So long as the law "gives adequate warning of what activities it proscribes" and sets forth "explicit standards" for those individuals who must apply it, the law is not unconstitutionally vague. Broadrick v. Okla. , 413 U.S. 601, 607, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citation omitted). While it is inevitable that words contain "germs of uncertainty" and that disputes may arise over the meaning of particular terms, a law shall not be invalidated on vagueness grounds if its terms are set forth in a manner "that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest." Id. at 608, 93 S.Ct. 2908.
Applying this jurisprudence to the language of the gag order, we conclude that the language is not unconstitutionally vague as it clearly informs Appellants that they may not speak publicly about the custody matter in a manner that will disclose Child's identity. Appellants’ specific assertions to the contrary are unpersuasive. First, we decline to engage in a pedantic dissection of the word "tend" as used in the language of the gag order precluding Appellants from speaking publicly about the custody case in a manner that would "tend" to identify Child. As noted throughout, the trial court made clear that it was precluding only speech about the custody case communicated in manner that would identify Child.
Similarly, the preclusion against "direct[ing] or encourage[ing]" others to communicate or speak publicly about the case is clear when read in the context of other language in the order directing Appellants to remove the extensive information already posted online, which Appellants had encouraged others to view. Finally, while the gag order admittedly does not include a duration for the speech restrictions, it is undeniable that the trial court imposed the order to protect a child's interests; thus, such preclusion would continue only during the child's minority. We advise trial courts, however, to utilize precise terms of duration when drafting orders imposing restrictions on the manner of speech under circumstances where the duration of the prohibition is unclear, as such an omission could form the basis for a successful vagueness challenge.
Accordingly, we agree with the Superior Court's conclusion that a person of ordinary intelligence would read the gag order to forbid Appellants from taking this peculiar custody case to the media in a way that would harm the psychological and emotional well-being of Child. Thus, we decline to afford Appellants’ relief on their vagueness challenge.
D. Article I, Section 7 of the Pennsylvania Constitution
Because we need to effectuate fully the protections contained in the state charter, we proceed to examine Appellants’ claim that, even assuming that the gag order satisfies the requisites of the federal constitution, it violates Article I, Section 7 of the Pennsylvania Constitution. See Commonwealth v. Edmunds , 526 Pa. 374, 586 A.2d 887, 894 (1991) (holding that "we are not bound by the decisions of the United States Supreme Court which interpret similar (yet distinct) federal constitutional provisions").
We acknowledge that Article I, Section 7 is an ancestor and not a stepchild of the First Amendment, and that the protections that it guarantees are firmly rooted in Pennsylvania history and experience. Commonwealth v. Tate , 495 Pa. 158, 432 A.2d 1382, 1388 (1981). We additionally observe that in certain circumstances this Court has afforded greater protection under Article I, Section 7, than guaranteed by its federal counterpart. See Pap's A.M., supra (holding that a public decency ordinance that made it a summary offense to appear nude in public violates the freedom of expression provision of Article I, Section 7 of the Pennsylvania Constitution, notwithstanding that the ordinance does not violate the First Amendment).
However, Appellants have offered no meaningful argument or authority, and this Court has found none, suggesting that Article I, Section 7 requires the application of a heightened constitutional standard to a content-neutral restriction on a parent's free speech rights, as exercised during a custody proceeding where the trial court has made a specific finding that the speech harms the child's right to psychological and emotional well-being and privacy. As Appellants have failed to persuade us to the contrary, we conclude that the protections afforded by the First Amendment and Article I, Section 7 are coextensive as it relates to the particular circumstances presented by this appeal.
Accordingly, for the reasons set forth in our discussion of the First Amendment in which we examined the gag order's content-neutral restrictions pursuant to the intermediate constitutional standard and balanced the competing interests of Appellants and Child, we respectfully find no merit to Appellants’ contention under our state charter.
E. Conclusion
In summary, we reject Appellants’ contentions that the gag order issued in the custody proceeding constitutes a content-based speech restriction or a prior restraint on the content of their speech. Instead, we hold that the gag order restricts only the manner of Appellants’ speech and not the content. Because the speech restrictions are justified by the important governmental interest of protecting the psychological and emotional well-being of Child and the Child's privacy, and are narrowly tailored to serve that articulated governmental interest, they do not violate the First Amendment to the United States Constitution. We further conclude that the gag order is not unconstitutionally vague. Finally, we hold that the gag order does not violate Article I, Section 7 of the Pennsylvania Constitution. Thus, we affirm the judgment of the Superior Court, which upheld the constitutionality of the gag order.
Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a concurring opinion in which Justice Dougherty joins.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
CHIEF JUSTICE SAYLOR, concurring
I join the majority opinion subject to the understanding that the common pleas court's order does not restrict private speech about the underlying custody dispute. This is evidently the view taken by the majority, as it reads the order as stating that Appellants "may not speak publicly about the custody matter in a manner that will disclose Child's identity" or encourage others "to communicate or speak publicly about the case." Majority Opinion, at –––– – ––––. I write to highlight this aspect of the decision because it seems to me that the order's prohibition, being phrased in the disjunctive, could potentially be interpreted as regulating private speech. In the context of the order as a whole, I agree with the majority's understanding that private speech was not meant to be restricted.
Justice Dougherty joins this concurring opinion.
JUSTICE WECHT, dissenting
The Majority discerns no constitutional infirmity in a gag order that bars a parent and her attorneys in a contentious and ongoing custody case from "speak[ing] publicly or communicat[ing] about" that case. The order that today's Majority blesses does not stop there; it even purports to prohibit the parent and her lawyers from "direct[ing] or encourag[ing] third parties to speak" about the case. The gag order allows only two limited exceptions: (1) testifying before either the Pennsylvania General Assembly or the United States Congress; and (2) "expressing an opinion about the [trial] Judge." Even in those two circumscribed contexts, while the parent ("Mother") and her counsel may speak, they may not identify Mother by name, nor disclose any information that would "tend to identify" Mother's child. The gag order is without any time limit whatsoever; it applies in perpetuity. No doubt, there are countries in our world where overbroad prior restraints on speech of this sort pass muster. But not here. Or so I thought, until today.
Findings of Fact and Order of Court ("T.C.O."), 4/27/2018, at 4; R.R. at 323(a).
Id.
Id. at 5.
Id.
Let's be honest. Mother is no Girl Scout. There are appealing reasons why a judge might seek to limit Mother's speech and that of her attorneys. These reasons arise from the extraordinary and potentially psychologically injurious pattern of public conduct in which Mother and her attorneys ("Counsel") have engaged. But if one thing ought to be clear from American legal history, it is that we should not allow hard cases to make bad law. Certainly, most of our constitutional protections have been forged in unseemly crucibles. In bestowing its constitutional imprimatur on a gag order so broad, the Majority risks erosion of core First Amendment protections.
Messrs. Miranda, Escobedo, and Gideon, for example, were hardly model citizens. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that statements will be inadmissible as a violation of the Fifth Amendment when obtained in a police interrogation without the suspect receiving warning of his or her rights); Escobedo v. State of Ill ., 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) (holding that when a suspect is interrogated with the goal of eliciting incriminating statements and the suspect has not been warned about his or her right to remain silent, the denial of the opportunity to consult with the suspect's attorney is a violation of the Sixth Amendment); Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding that an indigent defendant in a state criminal prosecution has a right to court-appointed counsel).
I do not dispute the trial court's factual findings. Nor do I doubt the sincerity and good intentions that underlie the efforts by the lower courts and by today's Majority which aim to protect the child ("Child") from harmful consequences that could ensue from the Mother's speech and that of her Counsel. This is an unusual case. The testimony of a child in a custody dispute is rarely the subject of a press conference. Far more frequently, a child is harmed when a parent criticizes the other parent to the child or shares details of a divorce with a confidant in the child's presence. But regardless of the source of the harmful speech, and good intentions notwithstanding, American courts may not enter unconstitutionally overbroad, content-based gag orders at will.
The order that we examine today reads as follows:
[Father's] Motion for Other Relief is GRANTED in part. It is hereby ORDERED that [Mother]; Richard Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications. The following is also ORDERED .
1. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall NOT direct or encourage third parties to speak publicly or communicate about this case including, but not limited to, print and broadcast media, on-line or web-based communications, or inviting the public to view existing on-line or web-based publications.
2. [Mother]; Richard Ducote, Esquire, and Victoria McIntyre may provide public testimony in the State House and/or Senate in the United States Congress and Senate about parental alienation, sexual abuse of children in general or as it relates to this case. However, in providing such testimony, they shall NOT disclose any information that would identify or tend to identify the Child. [Mother] shall NOT publically state her name, the name of the Child, or [Father's] name. Attorney Ducote and Attorney McIntyre shall NOT publically refer to [Mother], the Child, or [Father] by name or in any manner that would tend to identify the aforementioned parties.
3. [Mother] and Counsel shall remove information about this case, which has been publically posted by [Mother] or Counsel, including but not limited to, the press release, the press conference on the YouTube site, the Drop Box and its contents, and other online information accessible to the public, within twenty-four (24) hours. [Mother] and Counsel shall download or place the aforementioned information onto a thumb drive, which shall be filed with this court.
The Oral Motion to Stay This Order of Court, made on behalf of [MOTHER] is DENIED [.]
This Order does not prohibit any party or counsel from publicly speaking or expressing an opinion about the Judge, including disclosing the entry of this Order of Court, after the information has been removed as set forth, above. However, such expression shall NOT contain the name of the Child or other information, which would tend to identify the Child.
T.C.O. at 4-5 (emphasis in the original).
The Majority maintains that this gag order "in no way silences [Mother or Counsel] from expressing all of their views on important issues relating to the custody proceeding." The Majority further claims that, "when read in context, the order affords Appellants ample opportunity to disseminate all of their thoughts into the marketplace of ideas without restriction on the content of their message."
Maj. Op. at ––––.
Id. at ––––.
I disagree. The order expressly prohibits Mother and Counsel from speaking publicly or communicating about the case. The order even provides some examples of the prohibited communication methods, and then proceeds to stress that the prohibition is not limited to those methods. The order prohibits Mother and Counsel from using a third party to communicate about the case, and requires Mother and Counsel affirmatively to remove information posted about the case. As noted, the order provides two limited exceptions to its sweeping prohibitions. Provided that Child is not identified and Mother is not named, Mother and Counsel may testify before a legislative body and may express an opinion about "the Judge." Far from affording Mother and Counsel "ample opportunity to disseminate all their thoughts into the marketplace of ideas without restriction on the content of their message," this gag order in fact closes that marketplace, barricades all but two narrow avenues of expression, and imposes substantial roadblocks even upon those outlets.
Id.
The question before us is not whether Mother's and Counsel's speech was wise or appropriate. It was neither. Holding a press conference that highlights sensitive information about Child certainly casts into doubt any claim that Mother acted in Child's best interests. Mother's conduct no doubt was a legitimate consideration as the trial court weighed the parents’ claims regarding custody of Child. But the Majority fails to understand that the question before us — whether Mother's speech rights were infringed — is a separate issue. At this late date, it should no longer need to be said that First Amendment cases rarely involve speech that is pleasant, agreeable, or temperate.
See , e.g. , Cohen v. California , 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (reviewing Cohen's conviction for disorderly conduct for wearing a jacket with "Fuck the Draft" written on the back into a courthouse); Brandenburg v. Ohio , 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (reviewing the conviction of a Ku Klux Klan member who, at a rally, suggested that action against the government may be required); Whitney v. California , 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (reviewing Whitney's criminal conviction for assisting in the organization of the California branch of the Communist Party and reading a resolution calling for a workers’ revolution); Commonwealth v. Knox , 647 Pa. 593, 190 A.3d 1146 (2018) (determining whether a rap video containing threatening lyrics was protected speech).
In the absence of relevant precedent from this Court, we might seek wisdom from other jurisdictions that have confronted similar issues. In the context of a juvenile court case, the Nebraska Court of Appeals examined a gag order that precluded the parents from discussing publicly the child's name or medical information, including treatment and diagnoses. The court determined that the gag order was a prior restraint on the parents’ speech and was directed at the content of that speech. As such, the order was subject to "exacting scrutiny." The court agreed with the juvenile court that disclosure of the child's medical information was not in the child's best interests. But "the fundamental difficulty is that the child's best interests are not the standard, nor does the juvenile court's rationale for the entry of the gag order comport with the established law allowing the lawful entry of a judicial order imposing a prior restraint on speech." Having found no imminent harm to the child sufficient to justify a prior restraint, the court vacated the gag order.
In re T.T. , 18 Neb.App. 176, 779 N.W.2d 602 (2009).
Id. at 612, 614.
Id.
Id. at 620.
Id. at 621.
In re R.J.M.B. , 133 So. 3d 335 (Miss. 2013), involved a mother who was misunderstood by an interpreter at the hospital when she gave birth to the child. As a result of the linguistic misunderstanding, the child was removed from the mother's custody for a year. When the mother and the child were reunited, the trial court entered a gag order that did not permit any of the parties to speak to the press about the case. On appeal, the Mississippi Supreme Court first noted that gag orders which restrict parties or others from publicly discussing a case "resemble prior restraints" that "suppress[ ] speech based on its content before the speech is uttered."
Id. at 343.
The Mississippi Supreme Court recognized a split in the standard used by courts to measure the government's burden in supporting a gag order directed at attorneys or litigants. While strict scrutiny has applied to restraints against the press, some courts have applied a different test when the restraint is against attorneys or parties. For example, the United States Courts of Appeals for the Sixth, Seventh, and Ninth Circuits have applied strict scrutiny, requiring that the gagged speech "poses either a clear and present danger or a serious and imminent threat to a protected competing interest." The Fourth, Fifth, and Tenth Circuits have applied a less exacting standard, such that participants may be restrained from speaking "if the comments present a ‘reasonable’ or ‘substantial’ likelihood of prejudicing a fair trial."
Id. at 344.
Id. The Mississippi Supreme Court reviewed Gentile v. State Bar of Nevada , 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991), in which the Supreme Court of the United States held that a demonstration of "substantial likelihood of material prejudice" was required in order constitutionally to restrict an attorney's speech. Gentile involved an attorney who faced disciplinary charges after he spoke at a press conference about a criminal trial. The court noted that the Fifth Circuit had adopted this reasoning and test in allowing a gag order aimed at ensuring a fair trial. The Mississippi Supreme Court, however, rejected the application of the lesser "substantial likelihood" test because, unlike in Gentile , the governmental interest in ensuring a fair trial was not at stake in In re R.J.M.B. , which was not before a jury.
The Mississippi Supreme Court concluded that applying the less stringent standard would impermissibly burden the mother's speech rights, and that the stricter "clear-and-present-danger test" applied instead. The court noted that several other state courts had applied the higher standard to gag orders in cases involving children. , The lower court had not applied any such balancing test, and the Mississippi Supreme Court concluded that there was no imminent danger to any compelling state interest sufficient to justify the gag order.
Id. at 345.
Id. (citing In re T.T. ; State ex rel L.M. , 37 P.3d 1188, 1193-96 (Utah Ct. App. 2001) ; In re J.S. , 267 Ill.App.3d 145, 204 Ill.Dec. 30, 640 N.E.2d 1379, 1382 (1994) ).
See also Baskin v. Hale , 337 Ga.App. 420, 787 S.E.2d 785, 792 (2016) (applying an "imminent danger" standard and vacating an injunction that prevented the parents and their attorneys from putting information about a custody case on any social media, website, or public medium).
Id. at 346.
In Johanson v. Eighth Judicial District , the father had filed a motion to modify a child support order, which the lower court had granted. Shortly thereafter, the father filed a motion to correct some clerical errors in the order because the father was concerned that the order could be used against him in his campaign for a judgeship. Sua sponte , the lower court entered a gag order that precluded the parties and their attorneys from disclosing any document or discussing the case with any other party or individual. The mother challenged the order. The Nevada Supreme Court recognized that gag orders "preventing participants from making extrajudicial statements about their own case amount[ ] to a prior restraint on speech and undermine[ ] First Amendment rights." The court adopted the Ninth Circuit's standard, which requires a clear and present danger or serious and imminent threat to a protected interest, a narrowly drawn order, and the lack of available less restrictive alternatives. The court concluded that the lower court had failed to consider whether there was any clear and present danger to a protected interest and had made no findings related to the least restrictive alternative. The court also held that the order was overbroad and was not narrowly tailored. The court also noted that the gag order did not have an expiration date. Because the constitutional standard had not been met, the court concluded that the gag order violated the mother's rights.
124 Nev. 245, 182 P.3d 94 (2008).
Id. at 96.
Id. at 98.
See id. at 99 (concluding that "[t]he limits of th[e] order are endless.").
The constitutionality of restraining parental speech in custody cases continues to be litigated around the country. See , e.g. , Delgado v. Miller , ––– So.3d ––––, 2020 WL 7050217 (Fla. Dist. Ct. App. Dec. 2, 2020) (holding that a provision of a custody order that precluded the parents from commenting about the other party's emotional or mental health or personal behavior on social media was a prior restraint that had not been found to be necessary, was not narrowly tailored, and was overbroad).
Like the courts of our sister states, Pennsylvania courts generally have applied stringent scrutiny in reviewing the lawfulness of prior restraints on speech. Because of the presumption that prior restraints are unconstitutional, the reviewing court must evaluate the following in determining whether such restraints are permissible: "(a) the nature and extent of the evil to be avoided, (b) whether other measures [are] likely to mitigate the effects of unrestrained publicity, and (c) how effective a restraining order [is] to prevent the threatened danger." Because it perceives the order in question here to be a content-neutral restriction — a conclusion with which I disagree — today's Majority avoids this issue entirely.
Commonwealth v. Genovese , 337 Pa.Super. 485, 487 A.2d 364, 367 (1985) (citing Nebraska Press Association v. Stuart , 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ).
The United States Court of Appeals for the Fourth Circuit has provided an instructive discussion of gag orders:
Even among First Amendment claims, gag orders warrant a most rigorous form of review because they rest at the intersection of two disfavored forms of expressive limitations: prior restraints and content-based restrictions. Like all "court orders that actually forbid speech activities," Alexander v. United States , 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993), gag orders are prior restraints. Prior restraints bear "a heavy presumption against [their] constitutional validity." Bantam Books, Inc. v. Sullivan , 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Prior restraints upend core First Amendment principles because "a free society prefers to punish the few who abuse rights of speech after they break the law [rather] than to throttle them and all others beforehand." Se. Promotions, Ltd. v. Conrad , 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975).
Similarly, gag orders are presumptively unconstitutional because they are content based. Nat'l Inst. of Family and Life Advocates v. Becerra , ––– U.S. ––––, 138 S.Ct. 2361, 2371, 201 L.Ed.2d 835 (2018) (presumption against content-based restraints). Content-based restrictions
target "particular speech because of the topic discussed or the idea or message expressed." Reed v. Town of Gilbert , 576 U.S. 155, 163, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). Gag orders inherently target speech relating to pending litigation, a topic right at the core of public and community life. But the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (internal quotation marks omitted).
In light of these twin presumptions, gag orders must survive strict scrutiny. Reed , 576 U.S. at 163, 135 S.Ct. 2218 (strict scrutiny for content-based restrictions).
In re Murphy-Brown, LLC , 907 F.3d 788, 796-97 (4th Cir. 2018) (citations modified). The perpetual gag order at issue in this case is a content-based prior restraint. As such, it must be measured by strict scrutiny. So measured, it cannot survive.
The United States Supreme Court has defined content-neutral restrictions "as those that ‘are justified without reference to the content of the regulated speech.’ " Thus, they must be evaluated differently from content-based restrictions, as the latter implicate the important principle "that ‘government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.’ "
City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 48-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (quoting Va. Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ) (emphasis in original).
Id. at 48-49, 106 S.Ct. 925 (quoting Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ).
The High Court recently has explained:
Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be justified without reference to the content of the regulated speech, or that were adopted by the government because of disagreement with the message the speech conveys. Those laws, like those that are content based on their face, must also satisfy strict scrutiny.
Reed v. Town of Gilbert , 576 U.S. 155, 163-64, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) (cleaned up).
We have urged a common-sense approach to determining whether a regulation is content-based or content-neutral, suggesting that it is "relevant that an obvious purpose of the ordinance was to directly burden freedom of expression itself." Similarly, we have noted that, "[a]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’ With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances." In differentiating between content-based and content-neutral restrictions, this Court has held:
Pap's A.M. v. City of Erie , 571 Pa. 375, 812 A.2d 591, 611-12 (2002).
Ins. Adjustment Bureau v. Ins. Com'r for Com. of Pa , 518 Pa. 210, 542 A.2d 1317, 1320 (1988) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) ).
If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" four-part standard from O'Brien. But, if the governmental interest is related to the suppression of expression, then the regulation falls outside the scope of the O'Brien test and must be justified under a more demanding standard.
United States v. O'Brien , 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (outlining four factors to consider when determining the constitutionality of a content-neutral speech regulation).
Purple Orchid, Inc. v. Pennsylvania State Police , 572 Pa. 171, 813 A.2d 801, 806 (2002) (citations omitted).
Our Superior Court has found an injunction to be content-neutral where it did "not seek to ban any subject matter from being protested" but instead sought to restrict "the excessive tactics used by the protesters, not to stifle the message itself." By contrast, the Superior Court found an injunction to be content-based and unconstitutional where it prevented speech only critical of the plaintiff and was "directed against the ideas expressed because of the detrimental impact which the communication of those ideas has had upon [the plaintiff]."
SmithKline Beecham Corp. v. Stop Huntingdon Animal Cruelty USA , 959 A.2d 352, 357 (Pa. Super. 2008).
Franklin Chalfont Assocs. v. Kalikow , 392 Pa.Super. 452, 573 A.2d 550, 557 (1990).
Some of the case law distinguishing content-based restrictions from content-neutral ones has focused upon the perceived hostility to the message. Hence, today's Majority focuses upon whether the trial court's order reflected hostility toward Mother's speech. But this does not cover the waterfront; there are also restrictions that are deemed content-based because any common-sense reading reveals that the restriction is "based on the message a speaker conveys," such as when the restriction "defin[es] regulated speech by particular subject matter." Our Court has followed this common-sense approach in determining whether or not a restriction is content-neutral.
See Reed , 576 U.S. at 164, 135 S.Ct. 2218 (recognizing content-based restrictions as those "that were adopted by the government because of disagreement with the message").
Maj. Op. at –––– ("[T]he ‘princip[al] inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.’ " (quoting Ward v. Rock Against Racism , 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) )).
Reed , 576 U.S. at 163, 135 S.Ct. 2218.
Pap's , 812 A.2d at 611.
The restriction in today's case was based upon the content of speech. It was based upon a particular subject matter. It was based upon the message. It was directed at the ideas expressed. The first sentence of the gag order categorically bans Mother and Counsel from speaking about the custody case; the preclusion extends only to that topic and that message. This is the very essence of a content-based restriction. To survive, it must withstand strict scrutiny. The perceived laudability of the trial court's goal does not change the nature of this restriction.
See SmithKline Beecham Corp. , 959 A.2d at 357.
See Franklin Chalfont Assocs. , 573 A.2d at 557.
In addition to the fact that the gag order in this case is a content-based restriction, it also is a prior restraint on speech. "The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Prior restraints are disfavored and are subject to heightened scrutiny. "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint." In addition, the gag order before us in this case is similar to those examined in the courts of our sister states, which have characterized those orders as prior restraints or something akin to them.
Alexander v. United States , 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (emphasis in original) (cleaned up).
New York Times Co. v. United States , 403 U.S. 713, 714, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (cleaned up).
See In re T.T. , In re R.J.M.B. , In re J.S. , Johanson , supra .
While prior restraints often are associated with restrictions upon the press, they arise in other situations, as well. Indeed, we have distinguished prior restraints on speech from limits that may sometimes restrict press or public access to the courts when those limits are needed to protect constitutional interests such as the right to a fair trial.
See William Goldman Theatres, Inc. v. Dana , 405 Pa. 83, 173 A.2d 59, 64 (1961) (holding that the Motion Picture Control Act was a prior restraint when the Board of Censors had to approve movies before screening).
See Philadelphia Newspapers, Inc. v. Jerome , 478 Pa. 484, 387 A.2d 425, 433 (1978).
While no doubt a reaction to communications that Mother and Counsel have already made, the gag order before us precludes Mother and Counsel prospectively from speaking about the custody case in advance of any communication that either of them might wish to make. The gag order does not simply deny access to case proceedings, as in closing the courtroom or sealing the trial court record. As a prior restraint, the gag order is subject to a presumption of constitutional invalidity and a heightened standard of review.
We have held:
When the government restricts expression due to the content of the message being conveyed, such restrictions are allowable only if they pass the strict scrutiny test. That test is an onerous one, and demands that the government show that the restrictions are "(1) narrowly tailored to serve (2) a compelling state interest." Republican Party of Minnesota v. White, 536 U.S. 765, 775, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).
In re Condemnation by Urban Redevelopment Auth. of Pittsburgh , 590 Pa. 431, 913 A.2d 178, 183-84 (2006) (citation modified). Here, the gag order is both content-based and a prior restraint. Accordingly, the Majority errs in reviewing the order under the O'Brien factors. Instead, strict scrutiny must apply. I turn to analyze the order at issue against that exacting standard.
United States v. O'Brien , 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (outlining four factors to consider when determining the constitutionality of a content-neutral speech regulation).
This Court has recognized that the protection of the health and well-being of children is a compelling state interest. I do not for a minute doubt the considerable harm that Child may face as a consequence of Counsel and Mother's public campaign. Consequently, I agree that there is a compelling state interest at issue here.
See D.P. v. G.J.P. , 636 Pa. 574, 146 A.3d 204, 211 (2016) ("[T]he state, acting pursuant to its parens patriae power, has a compelling interest in safeguarding children from various kinds of physical and emotional harm and promoting their wellbeing"); Hiller v. Fausey , 588 Pa. 342, 904 A.2d 875, 886 (2006) (finding protection of children to be a compelling state interest for the purpose of infringing upon a parent's fundamental right to raise one's children).
This does not end the inquiry. To survive strict scrutiny, the order also must be narrowly tailored. The Majority believes that this order provides ample opportunity for Mother and Counsel to express their views. I disagree. In its first sentence, the order categorically prevents Mother and Counsel from speaking or communicating about the case publicly. There are only two limited and very specific exceptions for Mother and Counsel to express their views, and Mother is precluded in all circumstances from doing so in her own name, ostensibly because this might tend to identify Child. This sweeping gag order all but precludes Mother from speaking about this case to anyone other than Counsel. Moreover, the order is not limited in time. As in Johanson , the restriction is essentially endless and it is anything but narrowly tailored.
That I find the order here to be impermissible is not to suggest that I consider trial courts powerless to attach consequences to speech of a potentially injurious nature. Our General Assembly has provided trial courts with a list of factors to consider in making custody decisions. The trial court could have considered Mother's behavior and statements under several of those factors in determining what custody arrangement would serve Child's best interests. Whether Mother's speech was in derogation of Child's best interests certainly is a legitimate consideration in determining custody, and may appropriately be invoked to limit Mother's custodial rights. But imposing tangible consequences upon the hours and circumstances of child custody is one thing; infringing upon, and gagging, constitutional rights of speech by prior restraint is quite another. I disagree as well with the Majority's generous conclusion that the gag order before us is not vague. The order here is both overbroad and vague. As they relate to government edicts, the doctrines of overbreadth and vagueness are as applicable to the type of order in this case as they are to statutes, regulations, or rules.
See 23 Pa.C.S. § 5328(a) (listing sixteen factors).
For example, Mother's public comments would be relevant to factor 8 ("The attempts of a parent to turn the child against the other parent"), factor 9 ("Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for the child's emotional needs"), factor 10 ("Which party is more likely to attend to the daily physical, emotional, developmental, educational and special needs of the child"), factor 13 ("The level of conflict between the parties and the willingness and ability of the parties to cooperate with one another"), or factor 16 ("Any other relevant factor"). 23 Pa.C.S. § 5328 (a).
As the Nebraska court noted in T.T. , the child's best interests are not the relevant standard for determining whether a gag order unconstitutionally restricts speech. See In re T.T. , 779 N.W.2d at 620.
Arising from the Fourteenth Amendment's Due Process Clause, the void-for-vagueness doctrine requires that a statute or rule under attack be sufficiently definite so that people of ordinary intelligence can understand what conduct is prohibited, and so as not to create or encourage arbitrary or discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). When a statute is purportedly vague and arguably involves constitutionally protected conduct, vagueness analysis will necessarily intertwine with overbreadth analysis. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 6, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).
A form of First Amendment challenge, the overbreadth doctrine prohibits an enactment, even if clearly and precisely written, from including constitutionally protected conduct within its proscriptive reach. Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). In order to prevail on an overbreadth challenge, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). See also Commonwealth v. Davidson, 860 A.2d 575, 583 (Pa. Super. 2004) ("When the overbreadth of the statute is substantial, judged in relation to its legitimate sweep, it may not be enforced against anyone until it is narrowed to reach only activity unprotected by the constitution.").
Commonwealth v. Perreault , 930 A.2d 553, 559 n.1 (Pa. Super. 2007) (citations modified).
Overbreadth manifests when a substantial amount of constitutionally protected activity is swept up along with prohibitions barring unprotected activity. When the restriction seeks to preclude only speech and not conduct, careful attention must be paid to the scope of the restriction so that protected speech is not chilled.
Commonwealth v. Davidson , 595 Pa. 1, 938 A.2d 198, 208 (2007).
See Broadrick , 413 U.S. at 614, 93 S.Ct. 2908 ("In such cases, it has been the judgment of the Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. ...").
Without a doubt, Mother and Counsel engage in otherwise protected activity when they speak about this case pending in our courts. As they say, this is America. The trial court could only prohibit as much speech as necessary to protect a compelling state interest, and no more. Instead, the trial court entered a sweeping order that prohibited Mother and Counsel from speaking publicly about the case except in starkly limited form and in two narrow contexts. Even in those two contexts, Mother could not identify herself. That is, she could not speak her own name. That latter restriction is breathtaking. If that is not an overly broad restriction, nothing is.
Turning to vagueness, the Majority brushes this argument aside, sculpting and applying this creative and paternalistic gloss: "a person of ordinary intelligence would read the gag order to forbid Appellants from taking this peculiar custody case to the media in a way that would harm the psychological and emotional well-being of Child." If only the order was so limited.
Maj. Op. at ––––.
The Majority chooses to interpret the phrase that Mother and Counsel "shall not speak publicly or communicate" about the case as precluding them from speaking to "the media." But that is by no means the only, or even the most intuitive, reading of the trial court's prohibition. Certainly, speaking to the media would be speaking publicly about the case. But "communicate" would also bar speaking to anyone not connected to the case, including friends or family members. It could also reasonably be read to bar speaking about the case in any public setting. At a minimum, it certainly leaves Mother to wonder to whom she can speak, upon pain of contempt. May Mother speak to the parents of one of Child's school friends who ask about the custody case? May she tell Child's teacher about the outcome of the custody trial in order to anticipate or explain changes to Mother's involvement in the school? May she talk to a friend about the case if she suspects that the friend may share details with others? The fact that it is woefully unclear to whom Mother can or cannot speak about the case demonstrates that the order here is vague. If, as the Majority now maintains, the trial court intended only to preclude Mother from speaking to the press, then the trial court could (and presumably would) have said that. No, the trial court aimed higher and further: it completely precluded Mother from speaking "publicly" as well as "communicat[ing]" at all about its terms. The order is patently unconstitutional.
The Majority simply dismisses this constitutional inquiry out of hand, avoiding the cases cited above on the rationale that the gag order at issue here is "nuanced uniquely and tailored to circumvent a specific manner of public speech." Maj. Op. at –––– n. 13. This illustrates the fundamental difference between the Majority's reading of the gag order and my own: I am reading the order that the trial court issued; the Majority is reading the order that it imagines the trial court desired. The Majority chooses to believe that, "when read in context," Mother and Counsel are able to express their views. Id. at 23. I do not know whose "context" this is. Indeed, while the Majority finds the order to be "nuanced" and "tailored", the Concurrence recognizes that the order "could potentially be interpreted" as restricting more than the Majority concedes. Conc. Op. at ––––. The Majority's charitable view of the order is unsupported by the language of the order itself. We need only read the text of the order itself — which precludes (with two minor exceptions) "speak[ing] publicly or communicat[ing]" about the case — to discern that the order is overbroad, vague, and a prior restraint.
The Majority acknowledges that Mother and Counsel claimed a violation of Article 1, Section 7 of the Pennsylvania Constitution as well as the First Amendment. The Majority nonetheless rejects that claim because it concludes that Mother and Counsel "have offered no meaningful argument or authority, and this Court has found none, suggesting that Article 1, Section 7 requires the application of a heightened constitutional standard to a content-neutral restriction on a parent's free speech rights." On this point, too, I disagree.
Maj. Op. at ––––.
Pennsylvania's Constitution preserves the right to free speech as follows:
The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any
subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.
PA. CONST . Art. I, § 7.
Reviewing the history of this provision, our Court has stated:
Apart from the Fourteenth Amendment, the guarantee of free communication of thought and opinion is independently protected by our State Constitution of 1874. Article I, Section 7, P.S., thereof recognizes and declares that ‘The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty .’ ([e]mphasis supplied). This provision is a direct inhibition on previous restraint of an exercise of the protected rights and was derived, ipsissimis verbis, from Section 7 of Article IX of our State Constitution of 1838 where, in turn, it had been taken from the Constitution of 1790. The members of the Constitutional Convention of 1790 were undoubtedly fully cognizant of the vicissitudes and outright suppressions to which printing had theretofore been subjected in this very Colony.
William Goldman Theatres, Inc. , 173 A.2d at 61 (emphasis in original).
Our Court has recognized that, in certain circumstances, the Pennsylvania Constitution provides greater protection than the First Amendment. For example, this Court has found enhanced protection for expressive conduct and for commercial speech. In Pap's A.M. v. City of Erie , 571 Pa. 375, 812 A.2d 591 (2002), this Court rejected the use of intermediate scrutiny and the O'Brien factors when expressive conduct was at issue. Instead, we concluded that "[o]ur experience in this case convinces us of the wisdom of our observations in Insurance Adjustment Bureau of the perils of the intermediate scrutiny test when protected expression is at issue." We later characterized Pap's as holding that "whenever the government acts to effect such a complete ban on a certain type of expression, strict scrutiny must be applied regardless of whether the government's action was content-based."
See Pap's , 812 A.2d at 612 ; Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382, 1391 (1981) (holding that political leafletting on a college campus was protected expression under Article 1, Section 7 ).
See Commonwealth, Bureau of Prof'l & Occupational Affairs v. State Bd. of Physical Therapy, 556 Pa. 268, 728 A.2d 340, 343–44 (1999) (holding that advertising is entitled to greater protection if it is not misleading); Ins. Adjustment Bureau, 542 A.2d at 1324 (applying a strict scrutiny-type test to restrictions on commercial speech).
Pap's , 812 A.2d at 612.
In re Condemnation by Urban Redev. Auth. of Pittsburgh, 913 A.2d at 189.
It does not appear that our Court has addressed the question of whether Pennsylvania's Constitution provides greater protection than the United States Constitution in the particular context before us today. Given the extension of protection and heightened scrutiny that this Court has invoked in past decisions, it appears likely that our Constitution would require application of strict scrutiny to an order like the one before us. However, because I would hold that strict scrutiny applies pursuant to the First Amendment, and because I believe that the instant gag order cannot survive that test, I do not need to resolve the issue pursuant to the Pennsylvania Constitution. It can await another day.
In the meantime, we should dispense with the Majority's straw man argument that "it would be inappropriate for this Court to conclude that [Mother's] First Amendment rights render a trial court in a custody proceeding powerless to safeguard a child from threatened psychological harm stemming from the manner by which a parent delivers his or her speech." The trial court was far from powerless. It merely erred in its use of that power. What does seem "inappropriate" is for this Court to give short shrift to Mother's First Amendment rights. It is not only Mother's right to free speech that is at stake here; it is everyone's. Our decision applies beyond the unusual and troubling facts of this particular case. Today's Majority licenses trial courts to enter vague and overbroad gag orders in any contentious custody case when a judge feels that a parent's speech could be deemed to cause emotional harm. Protection of children from harm is a worthy goal. It can be advanced with a scalpel, rather than a broadsword. It can never be advanced at the expense of our Constitutions and the fundamental rights that they guarantee. The order before us cannot survive strict scrutiny.
Maj. Op. at ––––.
While the particular gag order before us is vague, overbroad, and unduly expansive, and accordingly cannot survive strict scrutiny, I do not suggest that all such orders entered in custody cases would meet the same fate. A more narrowly and carefully tailored order could overcome the heavy constitutional burden that prior restraints carry. I agree with the Majority that "[t]he First Amendment does not require" a trial court to shy away from protecting a child from potentially harmful speech. Maj. Op. at ––––. But it must do so within the bounds of the First Amendment. Until today, I thought it was well-settled that our Constitution does not countenance gag orders that are vague, overbroad, and cannot satisfy strict scrutiny.
I would reverse the lower courts, and I would vacate the gag order. I dissent.
Justice Donohue joins this dissenting opinion.