Tag: family law and free speech

Divorce, Family Law and Constitutional Rights

Posted by Ron Kauffman on

Today is September 17th: Constitution Day. For anyone involved in divorce and family law cases, your Constitutional rights are always at risk. In New Jersey that was recently proved when a family judge restrained a woman from posting a video about her husband’s refusal to give her a religious divorce.

Divorce Constitution

Gotta Get a Get

On September 17, 1787, the delegates to the Constitutional Convention met for the last time to sign the document they created. Written 236 years ago, the U.S. Constitution is still the country’s most important legal instrument – even impacting people going through a simple divorce today.

For many Americans, religion plays an important part of finalizing their divorce. All three major monotheistic religions require a religious divorce to remarry within the faith. Without a religious divorce, a second marriage will not be recognized.

Agunot refers to Jewish women who are separated from their husbands but unable to obtain a legal Jewish divorce, leaving them barred from remarriage under Judaism’s adultery laws. One New Jersey woman denied a “Get” – a jewish divorce – decided to take matters into her own hands. She posted a video accusing her estranged husband of improperly withholding a get, and asking community members to “press” her husband to give the get.

After the video was made, the husband obtained a restraining order based on a domestic violence complaint alleging harassment. He testified that he received numerous phone calls from unknown numbers, a photograph of himself identifying him as a “get refuser” and calling on others to “tell him to free his wife.” Additionally, he was adamant that he was not a get refuser.

The trial judge found that the communication was “invasive” of the husband’s privacy, holding:

“one cannot hide behind the First Amendment when that communication is invasive of the recipient’s privacy.”

The trial judge entered a temporary restraining order against the Wife’s video and she appealed.

Florida and Constitutional Rights

I’ve written about the intersection of the U.S. Constitution and divorce cases before. This Constitution Day it is important to understand that family courts have a lot of power which can impact your constitutional rights.

Unlike the U.S. Constitution, the Florida Constitution has an express right of privacy clause in it. Florida courts have interpreted the Florida Constitution to afford even greater privacy rights than those in the U.S. Constitution.

Accordingly, Florida courts have to carefully balance a parent’s constitutional right against the state’s interests. When the matter involves religious beliefs, family courts generally do not make decisions in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

First Amendment Gets Going

On appeal, the New Jersey Superior Court Appellate Division held that the wife’s video was constitutionally protected speech. The appellate court vacated the temporary restraining order holding: a “general history” of violence was insufficient to vitiate First Amendment protections.

The video, whether viewed on its own or in the context in which it was disseminated, does not fall outside the First Amendment’s protection. Recall that the trial judge had concluded that the video was not protected by the First Amendment because members of the Jewish community would respond violently to plaintiff being identified as a get refuser.

However, the trial judge’s reliance on an unspecified general history of violent treatment to which get refusers were subjected was insufficient to render the wife’s video a true threat or an imminent danger to satisfy the incitement requirement.

To qualify as incitement and lose First Amendment protection a communication must be both “directed to inciting or producing imminent lawless action and . . . likely to incite or produce such action.”

The New Jersey Superior Court Appellate Division opinion is here.

Family Law, Free Speech, and Religious Discrimination

Posted by Ron Kauffman on

Free speech and family law clash again after a court tries to prohibit religious discrimination by ordering the parents not to criticize the other parent’s religion. How does the First Amendment balance family court orders that try to keep the peace and protect the rights of free speech?

Religion Family Law

Sleepless in Seattle

In the Washington case, the parents were previously married and share two sons. Both children have complex special medical and educational needs. They agreed to their original parenting plan in 2016, which contained joint decision-making responsibility.

Then in March 2020, both parents asked to change the parenting plan, and each sought sole decision-making authority. After trial, the family court awarded the Mother sole decision making authority, and among other things, ordered:

“No parent will put down Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality.”

The Father argues the family court’s wording of the religious upbringing provision violates the First Amendment, and he appealed.

Florida Religion and Family Law

I’ve written about the intersection of religion and family law before. Religion, religious beliefs, and religious practices are not statutory factors Florida courts consider when determining parental responsibility.

Nor is religion an area in which a parent may be granted ultimate responsibility over a child. Instead, the weight religion plays in custody disputes grew over time in various cases. One of the earliest Florida case in which religion was a factor in deciding parental responsibility restricted one parent from exposing the children to that parent’s religion.

The Mother was a member of The Way International, and the Father introduced evidence that The Way made the Mother an unfit parent. He alleged The Way psychologically brainwashed her, that she had become obsessed, and was neglecting the children. The trial judge awarded custody to the Mother provided that she sever all connections, meetings, tapes, visits, communications, or financial support with The Way, and not subject the children to any of its dogmas.

The Mother appealed the restrictions as a violation of her free exercise of religion. The appellate court agreed, and held the restrictions were unconstitutionally overbroad and expressly restricted the Mother’s free exercise of her religious beliefs and practices.

When the matter involves the religious training and beliefs of the child, the court generally does not make a decision in favor of a specific religion over the objection of the other parent. The court should also avoid interference with the right of a parent to practice their own religion and avoid imposing an obligation to enforce the religious beliefs of the other parent.

But left unsaid is whether a court can restrict a parent’s right to free speech under the First Amendment if the speech relates to the other parent’s religion.

The Battle in Seattle

The family law order prohibiting a parent from disparaging Christianity to or in front of the children, or allow other members of their household to put down either parents’ spirituality was not discussed until a post-trial hearing.

The Mother identified herself as “a practicing Christian,” and the father stated, “I don’t identify with any particular religion.” The mother just wanted to be sure that the father does not have the ability to block her from teaching the children about her religion.

The mother was concerned:

“[M]y only concern is that my children have expressed that they have been told denigrating things about Christianity in their dad’s house. … I have no concern about raising my children with a respect for all religions and beliefs and non-beliefs.”

On appeal the court noted that parents have a fundamental right to make decisions regarding the care, custody, and control of their children. The parental right to determine the child’s religious upbringing derives both from the parents’ right to the free exercise of religion and to the care and custody of their children.

A parent’s right to direct the religious upbringing of a child 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.

In other states, for example in Massachusetts, courts upheld a prohibition that a parent “shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves.

The Washington Court of Appeals found that, as written, the order limited religious topics the parents may discuss with the children in potentially undefined and subjective ways, and is not specific to non-disparagement of the respective parents’ spirituality.

The Court of Appeals of Washington opinion is here.

Shucking Child Custody and Freedom of Speech

Posted by Ron Kauffman on

Constitutional guarantees of freedom of speech and child custody rights are in for a shucking when an Indiana family court modifies a marital settlement agreement. Years after a divorce, one of the parents discovers religion. The parents end up back in court on a petition to modify custody and prohibit a parent from talking about religion.

Going Back To Indiana

The parents of a daughter were divorced in September 2012 after the trial court accepted the parties’ settlement agreement. Pursuant to their agreement, the parties shared joint legal custody of the Child, the Father paid weekly child support, the Mother was the Child’s primary physical custodian, and Father exercised parenting time.

Then in 2022, the Mother filed a petition to modify, asserting a substantial change in circumstances in that she and the Child changed churches, and she and the Child now attend Seymour Christ Temple Apostolic.

Since changing churches, the Child stopped painting her nails and now wears only long skirts. The Child attends church three times a week, on Sunday morning and Sunday evening for services and on Thursday night for youth group.

The Mother admitted the Child was baptized without informing Father until after the baptism occurred. Mother testified she wanted the trial court to modify the parenting time to eliminate the Father’s ability to question the Child’s religion or try to talk the Child into believing that there is no God.

The Father testified he is an agnostic. He denied telling Child “there wasn’t a God” and testified he had not tried to “convince her the church she goes to isn’t something she should be attending. He said he wanted Child to make her own choice about religion.

The judge conducted an in camera interview with Child, and concluded:

The Court finds that [Child] has made an independent well-reasoned decision about her faith, which should be respected and encouraged.

The Court awarded the Mother sole legal custody of the Child, primary physical custody, and ordered that the Father shall not discuss religion with Child. The Father appealed.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father, and ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

“Ope, sorry!”

On appeal, the Father argued the family judge erred when it modified custody based solely on religious beliefs and prohibited him from talking about religion with his Child.

In Indiana “religion” is not one of the statutory factors a trial court must consider when making a decision to modify child custody. Modifying custody based entirely on religion then – even if the Child expressed an interest in participating in religious activities at a church – was not a substantial change in circumstances to justify changing custody.

The appellate court also found the First Amendment of the U.S. Constitution – which prohibit the government from restricting expression because of its message, its ideas, its subject matter, or its content- was also violated.

In this case, the family court judge never found the Father was discussing religion with Child in a way that had a negative impact on her. The Mother testified Child “cries is withdrawn presents with a rash and/or hives, and her face is puffy” after visiting with Father. However, Mother did not specifically attribute Child’s reactions to discussions of religion between Father and Child.

The Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child’s religious views or attempted to persuade Child there was not a God. For his part, the Father testified he never told the Child there was no God. In fact, he wanted the Child to make her own choices about religion.

Even if the Child had reported that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare.

The family court judge’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment. Because the appellate court reversed, it decided it did not need not address whether the order also violated his freedom of religion argument.

The Court of Appeals of Indiana opinion is here.

Child Custody and Transgender Identity

Posted by Ron Kauffman on

A recent child custody case in Indiana tries to balance the parents’ constitutional rights to free speech and religion against a child’s transgender identity. The state of Indiana removed a child from the parents over how the parents dealt with their child’s transgender identity. Then, the Court of Appeals of Indiana was asked to weigh in.

Custody Transgender Identity

Custody in the Crossroads of America

The case started in May 2021, when the Department of Child Services (“DCS”) received a report alleging that the mother was verbally and emotionally abusing her 16-year-old child by using rude and demeaning language regarding the teen’s transgender identity. As a result, the teenager had thoughts of self-harm.

Ten days later, DCS received a second report alleging both parents were involved in being verbally and emotionally abusive because they do not accept their child’s transgender identity — and the abuse was getting worse.

A case manager investigated, and reported the child had been suffering from an eating disorder. The other findings included that the parents had withdrawn the child from school and DCS was unaware of the intent to enroll the child in a new school; they had discontinued the child’s therapy; the child did not feel mentally and/or emotionally safe , and would be more likely to have thoughts of self-harm and suicide if returned.

DCS filed a petition alleging the child’s physical or mental condition was seriously impaired or seriously endangered due to the parents’ neglect and/or the child’s physical or mental health was seriously endangered due to injury by the parents’ acts or omissions.

The juvenile court issued an order finding that it was in the child’s best interest to be removed from the home due to the parents’ “inability, refusal or neglect to provide shelter, care, and/or supervision at the present time.”

At the close of a subsequent hearing, the court informed the parties that it would leave in place its earlier order prohibiting the parents from discussing the child’s transgender identity during visitation, found the child needed services and therapy, in which the parents were ordered to participate and ordered that the child would remain in the current home or placement with DCS supervision.

The parents appealed, claiming the order was clearly erroneous, violated their constitutional rights to the care, custody and control of their child, and violated their rights to the free exercise of religion and freedom of speech.

Florida Child Custody

I’ve written about child custody and issues involving the constitution before, primarily between the parents. The case in Indiana however, is not between the child’s parents, but between the parents and the State of Indiana.

Other cases can involve disputes between parents over how to handle the social gender transition of a child. In Florida shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s health are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, health care is an area of ultimate responsibility a court can award. When a decision on health goes to trial, the court grants one parent ultimate responsibility to make that decision.

Hoosiers or Abusers?

The Court of Appeals rejected the parents’ religious freedom arguments. The Father testified that the parents were not allowed to affirm their child’s transgender identity, or use their child’s preferred pronouns, based on their sincerely held religious beliefs.

But the appellate court found that the order was based on the child’s medical and psychological needs, not on the parents’ disagreement with the child’s transgender identity. Put differently, the child’s removal was not based on the fact the parents didn’t accept the child’s transgender identity, and their future reunification was not contingent on the parents violating their religious beliefs or being forced to affirm the child’s transgender identity.

Accordingly, the order did not impose a substantial burden on their free exercise of religion. Moreover, the appellate panel found that protecting the child’s health and welfare was a compelling interest justifying state action that is contrary to the parents’ religious beliefs.

The Court of Appeals also rejected the parents’ freedom of speech arguments. The trial court recognized that the child’s eating disorder and self-isolation were connected to the discord at home about the child’s transgender identity.

Accordingly, the trial court’s limitation on the parents from discussing the topic directly targets the State’s compelling interest in addressing the child’s eating disorder and psychological health, as opposed to the content of the parents’ speech itself.

The order was found to be narrowly tailored because it restricted the parents from discussing the topic with the child only during visitation. However, the order permitted the topic to be discussed in family therapy.

Limiting the parents to only discussing the issue in family therapy was seen to allow the family to work on conflict management, so that they will eventually be able to safely talk about it outside of therapy. Accordingly, the order restricting conversation of this topic outside of family therapy was a permissible prior restraint.

The Court of Appeals of Indiana opinion is here.

Free Speech, Child Custody, and Insults

Posted by Ron Kauffman on

Free speech can be an issue in any child custody case when parents hurl insults at each other in front of their children. Because it is not in the children’s best interest, family judges can order parents not to disparage the other parent in front of the children. One Indianapolis court recently had to consider whether an anti-disparagement order went too far.

Free Speech Custody

Start Your Engines

After several years of marriage, Yaima Israel, filed for divorce from her husband Jamie Israel. After the trial, the family court judge decided that joint legal custody was an “unworkable” option based on the parents’ inability to agree about their child’s health, education and welfare. As a result, Yaima was awarded sole legal custody.

The family court’s decree also contained a non-disparagement clause. Family courts sometimes enjoin speech that expressly or implicitly criticizes the other parent.

In another case for example, a mother was stripped of custody partly because she truthfully told her 12-year-old that her ex-husband, who had raised the daughter from birth, wasn’t in fact the girl’s biological father.

In the recent Indianapolis case, the order prohibited either parent from “making disparaging comments about the other in writing or conversation to or in the presence of child.

However, the order also prohibited insulting the other parent in front of friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone else. All kinds of speech was banned, including “negative statements, criticisms, critiques, insults[,] or other defamatory comments.”

The Husband challenged the judge’s non-disparagement clause that restrained them from ever making disparaging remarks about one another, regardless of whether the child was present.

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children. Accordingly, Florida courts have to balance a parent’s right of free expression against the state’s interest in assuring the well-being of minor children.

In Florida, parents have had their rights to free speech limited or denied for various reasons. In one case, a mother went from primary caregiver to supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes. The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

But some have argued that if parents in intact families have the right to speak to their children without the government restricting their speech, why don’t parents in broken families have the same rights?

The Constitutional Brickyard

The Indianapolis appellate court ruled that the First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech.

Restraining orders and injunctions that forbid future speech activities, such as non-disparagement orders, are classic examples of prior restraints. Non-disparagement orders are, by definition, a prior restraint on speech. Prior restraints on speech are the most serious and the least tolerable infringement on free speech rights.

While a prior restraint is not per se unconstitutional, it does come to a court bearing a heavy presumption against its constitutional validity.

To determine whether a prior restraint is constitutional under the First Amendment, the court considers: (a) ‘the nature and extent’ of the speech in question, (b) ‘whether other measures would be likely to mitigate the effects of unrestrained’ speech, and (c) ‘how effectively a restraining order would operate to prevent the threatened danger.’”

There is a compelling government interest in protecting children from being exposed to disparagement between their parents. To the extent the non-disparagement clause prohibits both parents from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.

But the non-disparagement clause in this case went far beyond furthering that compelling interest because it prohibited the parents from making disparaging comments about the other in the presence of anyone – even when the child was not present.

In the final lap, the court of appeals reversed the portion of the non-disparagement clause including “…friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” as an unconstitutional prior restraint.

The Indiana court of appeals decision is here.

 

Free Speech and Child Custody Disputes

Posted by Ron Kauffman on

Free speech, and the rights of people going through child custody disputes, are in the news again. Recently, a family law judge in Pennsylvania gagged – not the parents – but the Father’s new wife from online posting. The family judge ordered the child’s stepmother from posting anything on Facebook about the child, the Mother, or the case.

Free Speech Child Custody

Gagging Stepmothers

In the Pennsylvania case, a Father appealed from the trial court’s order that restricted the speech of his new wife, a non-party to the custody case, the child’s Stepmother. The Father argued that the family court’s order improperly restricted the non-party Stepmother’s speech on Facebook.

The Mother sought to enforce the court’s modified custody order, remove the Child from Stepmother’s home, and place the Child with Children and Youth Services (CYS). The trial court held a telephone hearing, and at that hearing, Mother told the court for the first time about a post that Stepmother had made on Facebook.

Specifically, Mother’s counsel argued the Stepmother was engaging in “pure alienation” through Facebook posts:

OK…. I’m going to lay everything out for ppl to know. My husband [Father] is currently in BCP on indirect civil contempt pertaining to child custody. The judge won’t release [Father] until our minor child attends four days of this out of state program with Linda Gottlieb. Our minor child is afraid of her Mother (she lives out of state) and has been fighting not to go to this out-of-state program with her Mother to fix their relationship. . . Our minor child is still with me as she fought not to go. How much emotionally [sic] and mental abuse can a child go through. . . I have 2 great attorneys, but no matter what we do the judge sides with the other side. They are claiming parental alienation. There is no legal record of parental alienation. Now anyone that knows me or my husband knows we aren’t those ppl. We have encouraged, positive affirmations etc.. [sic] this doesn’t matter to our minor child because the child is in fear. . . We have been accused of interfering with our child going to this program. We aren’t interfering. Our child is fighting it.

The trial court issued an order that granted Mother’s petition and stated, Father and Stepmother shall not use online or web-based communications to discuss this matter.

The trial court also order the Father and Stepmother to remove the Facebook post which contains information related to the child and not post any discussion or information regarding child’s custody or other information regarding the child.

Father raised only one issue on appeal, can the judge censor the speech of the Stepmother on Facebook even though she was not actually a party in the child custody case?

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes.

The Florida appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

You’ve Got a Friend in Pennsylvania

Back in the Pennsylvania case, the appellate court quickly noted that the Stepmother was simply not a party to the lawsuit between Father and Mother, she was not served with process, and she had no notice or opportunity to challenge the communications restriction order.

Because the non-party Stepmother did not have notice nor an opportunity to challenge the order, and the parties did not address the trial court’s exercise of personal jurisdiction over her the appellate court held that the family judge had no authority to impose a gag order on the Stepmother and vacated the order.

The opinion is here.

Free Speech and Child Custody in Massachusetts

Posted by Ron Kauffman on

Free speech and child custody are in the news as people discover they can’t say a lot of things after their child custody battle ends. A recent Massachusetts appeals court just decided whether some typical child custody order restrictions violated free speech laws.

custody free speech

Chilling Speech

In a Massachusetts court, a Father filed a complaint for custody, support and parenting time, seeking custody of the parties’ child. The Mother counterclaimed and a temporary custody order was entered.

A few months later, the family judge entered its own temporary order relating to exchanges of the child, telephone calls and exchanging addresses. After the final hearing, the court ordered joint legal custody and nearly equal timesharing for both parents.

The order also contained numerous restrictions on both parents’ speech. Although the court’s order appears to have the best interest of the child at heart, prior restraints on speech are very serious constitutional violations.

The order restrained the parents from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and/or disparaging comments relative to one another electronic social media. The order also prohibited the parents from discussing legal proceedings with the child.

Florida Child Custody and Speech Restrictions

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there have been cases in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered:

“Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. The Mother was also bipolar and convicted of two crimes.

The appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children. In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Stirring the Constitutional Speech Beanpot

The appellate court in Massachusetts reversed the speech restrictions because a number of – fairly typical speech provisions for a child custody order – placed an impermissible restraint on the mother’s speech and interfered in her child rearing.

The court found the family judge failed to provide specific findings to justify a compelling State interest in placing restrictions on the mother, or to explain why the limitations were necessary to protect the compelling interest.

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.”

A prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.”

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech.

The Massachusetts appellate opinion is here.

 

Free Speech and Domestic Violence

Posted by Ron Kauffman on

In family law, when a cyberstalking complaint consists of social media posts, free speech and domestic violence can clash. In a recent case, a domestic violence court prohibited one Florida lawyer’s social media comments about the other lawyers in her case.

Cyberstalking

Injunction Junction

Florida lawyer Ashley Krapacs filed a petition for a domestic violence injunction against her ex-boyfriend and represented herself at the DV hearing. Attorney Russel J. Williams represented her Ex.

After Krapac lost the hearing, on jurisdictional grounds, she wrote an article about the opposing lawyer, saying that he lied to the judge on the record during these proceedings. As a result, Williams hired his own attorney, Nisha Bacchus, to sue Krapacs for defamation.

Krapacs responded by writing several social media posts disparaging the new lawyer, Bacchus, with personal insults for representing Williams in the defamation suit against her.

Then Krapacs created a blog post which claimed Bacchus filed a frivolous lawsuit against her, accused her of being a bully, and included a vulgar insult. She tagged Bacchus in more posts and hurled insults at Bacchus and her law firm and identified the car Bacchus drove.

In one of her final Facebook posts, Krapacs stated she was going to connect with Bacchus’s former clients to sue her for malpractice. Bacchus sought to stop this by filing a petition for an injunction, alleging Krapacs was cyberstalking her.

The DV judge entered the injunction and limited Krapacs’ use of her office space since both Krapacs and Bacchus had offices in the same building. The judge also prohibited Krapacs from posting on social media about Bacchus and ordered her to take down all the offending posts about Bacchus.

Krapacs appealed.

Family Law and Free Speech

I’ve written about free speech in family law before. Family courts have a lot of power to protect children, and that can involve restraints on free speech. Speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also mean cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

Cyberstalking and Free Speech

The appellate court felt Krapacs’ actions did not qualify as cyberstalking because they did not constitute a pattern of conduct composed of a series of acts over time evidencing a continuity of purpose.

Retagging in social media posts for four hours constituted, in the court’s view, one instance of qualifying conduct under the statute. The other acts Bacchus complained of were deemed to be constitutionally protected and did not qualify as additional instances of repeated stalking.

The court also found that the injunction prohibiting Krapacs “from posting Nisha Bacchus, Nisha Elizabeth Bacchus or any part thereof, on any social media or internet websites, and requiring her to take down all social media and internet posts that reference Nisha Bacchus was overbroad.

While the appellate court held that her comments could not be subject to an injunction, it did find that Krapacs was not immune from civil liability for her actions and could face money damages.

Then there’s the Florida Bar, which then filed an emergency suspension petition against Krapacs. The Bar viewed her social media tweets, posts and comments as arising out of the opposing lawyers’ representation of clients who were litigating against her.

The Bar called Krapacs strategy “terrorist legal tactics” and felt it was prejudicial to the administration of justice.

After a hearing, the referee recommended a two-year suspension from the Florida Bar. The Florida Supreme Court reviewed the case, disapproved of the two-year suspension, and instead disbarred her.

The opinion is here.