By Connie Reguli

In many child welfare and child custody cases, the Parents want to reach out on social media. Sometimes for comfort and encouragement; sometimes to rant about the injustice; and sometimes to point out irregularities in the judicial process and express a legitimate concern.

Too often parents are “gagged” by the Courts who cite many reasons, most of which are nonsense. In my experience, most of the means to silence a parent are intended to prohibit them from making valid complaints about the process.

I have been an attorney for 25 years. The judicial process is flawed and the players are human. The fact that a judge gets mad at a parent or an attorney is unprepared happens. However, to the litigant/parent these things interfere with THEIR CASE. They have a right to be frustrated.

Judicial GAG orders are mostly unconstitutional.

Here is why:

THE PROHIBITION AGAINST PRIOR RESTRAINTS

            The United States Supreme Court established a broad prohibition against prior restraints of speech in Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976).  The First Amendment thus accords greater protection against prior restraints than it does against subsequent punishment for a particular speech.  A system or prior restraint is in many ways more inhibiting than a system of subsequent punishment.  It is likened to being under government scrutiny a far wider range of expression; it shuts off communication before it takes place; suppression by a stroke of the pen is more likely to be applied than suppression through a criminal process; the procedures do not require attention to the safeguards of the criminal process; the system allows less opportunity for public appraisal and criticism; the dynamics of the system drive toward excesses, as the history of all censorship shows.  It has been generally, if not universally, considered that it is the chief purpose of the First Amendment’s guaranty to prevent prior restraints upon publication. 

            The Nebraska Press case dealt with the Court’s attempts to suppress publication of events that happened in the courtroom and attempted to expand that limited exception to this prohibition.  The Supreme Court rejected this attempt to shut down reports of judicial proceedings, determining that the Courtroom was already in the public domain.

            In 2002, the Middle District Court of Tennessee considered the government’s role in prior restraint on speech in the context of controlling a non-profit’s ability to raise charitable donations.  A prior restraint exists when the exercise of a First Amendment right depends on the prior approval of public officials.  The term prior restraint describes administrative and judicial orders that block expressive activity before it can occur.  Under a system of prior restraint, the lawfulness of speech turns on the advance approval of government officials.  Although prior restraints are not unconstitutional per se, they come to court bearing a heavy presumption against their validity.  Feed the Children, Inc. v. Metro. Gov’t of Nashville,  330 F. Supp. 2d 935, (M.D. Tenn. Mar. 21, 2002)  SEE ATTACHED. 

            The Tennessee Court of Appeals recognized the federal guidelines on prior restraint of speech in In re Conservatorship of Turner, M2013-01665-COA-R3-CV, (Tenn. Ct. App. May 9, 2014).  It acknowledged that an impermissible prior restraint exists when the exercise of First Amendment rights depends upon prior approval  of public officials.  A system of prior restraints bears a heavy presumption against its constitutional validity.  The Court did recognize the exception stated by the Sixth Circuit in which a person could be prohibited from repeating the same libelous and defamatory statements which have been judicially determined in proceedings to be false and libelous. 

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THE PROHIBITION AGAINST CRIMINAL SEDITION

            In 1984, the United States Supreme Court entered an opinion in Garrison v. La., 379 U.S. 64, (1964) in which discussed a dispute between the district attorney and a judge.  The attorney held a press conference where he issued a statement disparaging judicial conduct.  The district attorney was arrested under the criminal sedition laws of New York.  The court stated that where the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest secured by the constitution, in the dissemination of truth.  Even where the utterance is false, the great principles of the Unites States Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth.  Since an erroneous statement is inevitable in free debate, it must be protected if the freedoms of expression are to have the breathing space that they need to survive, only those false statements made with the high degree of awareness of their probable falsity may be the subject of either civil or criminal sanctions.  For speech concerning public affairs is more than self-expression, it is the essence of self-government.  The First and Fourteenth Amendments embody a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.