“This is a classic example of an illegal and unenforceable prior restraint on free speech” according to the father’s attorney, Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy.
The Supreme Court of the United States defines prior restraints on free speech as “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” Prior restraints carry a heavy presumption of unconstitutionality and are permissible in only exceptional cases such as war, obscenity and incitements to acts of violence and the overthrow of force by the government. Orders issued in the area of First Amendment rights must be framed in the narrowest of terms so as not to prohibit or infringe on any constitutionally protected speech.
That is part of the problem with the order according to Mr. Handy. “Not only does the order prohibit clearly constitutionally protected speech, it is unconstitutionally vague and subject to arbitrary and discriminatory enforcement. Who gets to determine what speech is ‘inappropriate’ and under what standards? The Supreme Court noted in Cohen v. California that courts and legislatures cannot limit speech to appease the most squeamish among us.”
Judges in custody cases often enter orders that purport to restrict what one or both parents may say to each other or around their children. These provisions, however, are rarely enforced through contempt or sanctions or challenged on appeal. The Court of Appeals of Washington, however, in a similar case, recently held that an order in a custody dispute prohibiting a father from contacting immigration or other governmental official concerning his ex-wife’s immigration status constituted an illegal prior restraint. The case is In re the Marriage of Meredith.
“Parents to custody disputes have no less constitutional rights than parents in intact families or other individuals” claims Mr. Handy. “A judge may no more restrict a parent’s use of language that he subjectively finds objectionable than the government can for any other group or individual.”
Mr. Handy notes that Father is not arguing in his appeal that judges cannot take into consideration profanity use or other constitutionally protected speech in formulating their custody decisions. “That issue is for another day,” states Mr. Handy. “Father is only claiming that judges in custody cases cannot prohibit or sanction constitutionally protected speech.”