In a decision of enormous importance, a New Jersey federal court has struck down a gag order issued by a family court in the Garden State (Bergen Dispatch, 12/19/14).
Back in 2011, Surender Malhan and his ex-wife were in Judge Nancy Sivilli’s family court on a child custody case. Malhan’s ex was given sole custody and Malhan wasn’t happy about the matter. More importantly, he wasn’t happy about the process by which he’d lost contact with his children. So he and four other aggrieved parents filed a class action lawsuit claiming deprivation of their right to due process of law by the family courts of New Jersey.
That interested the New Jersey affiliate of a major national television company. It wanted to do a story on the abuses perpetrated by judges in family courts, so the reporters contacted Malhan for an interview.
In response, Malhan’s wife initiated proceedings against Malhan, which resulted in Judge Sivilli entering a Gag Order. The Gag Order reads, in pertinent part:
All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties’ marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties’ divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party.
In short, Judge Sivilli issued an astonishingly sweeping order preventing the parties from making any statement about the case or anyone involved in it to the news media. Importantly, Sivilli justified her order on “the best interest of the children.” In so doing, she sent a clear message to every family court and juvenile court in the country that those words trump the First Amendment to the United States Constitution.
As we know, family courts justify everything they do regarding children as in their best interests, even when that’s flagrantly untrue. What those judges don’t seem to grasp is that the simple intoning of the mantra, “the best interests of the child,” is insufficient to make their orders actually function toward that laudable end. The simple truth is that very much of what those courts do is diametrically opposed to children’s interests. As but one example, social science demonstrates that equal – or near equal – parenting is best for children as long as the parents are fit to care for them. But equal parenting orders by family courts are somewhere between rare and non-existent, despite most parents being entirely fit and capable of caring for their kids.
In much the same way that family courts issue parenting orders based on no social science, Sivilli’s order also lacks any empirical basis. She asserted a general claim that publicity is bad for kids in divorce and child custody matters, but if there’s any evidence for the proposition, I certainly haven’t seen it, nor have I seen it cited anywhere including in Sivilli’s order.
As to the order’s dubious constitutionality, it’s true that courts sometimes issue perfectly legal orders prohibiting discussion of a pending case. Often that’s true of criminal cases in which undue publicity may tend to influence the pre-conceived ideas about the case of potential jurors. But all prior restraints on speech are required by Supreme Court precedent to be narrowly tailored in order to effect the least restriction possible. Clearly Sivilli’s failed that test. For example, she could have allowed Malhan to describe his experiences but use pseudonyms for him, his ex and their kids. But instead, she spread her net far wider than necessary.
So Sivilli’s order looks very much like many orders that come out of family courts. It was little more than a frank violation of a parent’s rights papered over by words with no scientific basis.
But an order is an order, and Malhan was stuck with it. But the Bergen Dispatch was not. A reporter for the paper, Paul Nichols, went to federal court to try to quash the plainly unconstitutional order. And Federal District Judge William J. Martini did just that.
Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, “are a matter of public interest.”
Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings. He alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake.
According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order “based on a generalized finding that publicity in family court is not in the best interests of children.”
On Friday Judge Martini denied Sivilli’s motion to dismiss the case finding “The Court therefore rejects Defendants’ argument that Nichols has failed to adequately allege a First Amendment violation”.
But Judge Martini’s overturning of the gag order is more important still.
In the Court’s opinion Martini was clear that the violation of rights that occurred when Judge Sivilli issued a sweeping gag order was not an issue about the rights of the press, it is a violation of the right of free speech of both Nichols and Surender Malhan.
The importance of that can scarcely be overstated. What Martini is saying is that the right that Judge Sivilli’s order violated is not a right of the press, but a right of the litigants in a child custody proceeding. If the right were the news media’s, in all but the rarest of cases, there’s be no Bergen Dispatch, Houston Chronicle, Toledo Blade or Los Angeles Times to complain about it. The simple fact is that there are far too many child custody cases for the press to cover and most of them aren’t newsworthy enough to find a place in the limited space available. So if the right infringed by Sivilli’s order were that of the news media, gag orders of the kind would rarely be challenged.
But since the right is that of the litigant Malhan, it’s the right of every litigant in similar situation. (Of course Judge Martini’s order doesn’t extend beyond his jurisdiction in New Jersey, but the principle extends throughout the country.) Wherever the reasoning Martini used applies, no parent can be prohibited by a family court judge from speaking out about his/her case.
This is no abstract principle of law; far from it. The idea that governmental authorities have the power to act in secret, far from the prying eyes of the public and the press is pernicious in the extreme. Since time immemorial, governments have often claimed the power to do so and they continue even in the face of a Constitution that makes no secret of its intention to limit governmental power and “sunshine laws” that plump for the right of We the People to know what our elected officials are up to.
The “best interests of children” is the latest excuse for hiding the actions of governmental officials from the public. I’ve complained often about the practice by child protective authorities, and I’ve done the same about laws in the United Kingdom that make virtually all child-related proceedings secret. Countless others have done the same, for very good reasons.
And ironically, those reasons are directly related to the actual best interests of children. Put simply, the more we know about what governmental officials are doing in the name of children, the better for children. It is public scrutiny of those actions, not public ignorance of them that provides the best chance of shielding children from harm. What the wall of secrecy inevitably begets is malfeasance on the part of those very officials hidden from view. How could it not? When those officials know that their behavior can’t be seen, can’t be monitored by outsiders, they know as well that mistakes and even intentional wrongdoing will remain invisible, unknown.
We see this time and again with Child Protective Services. Almost daily we see cases in which children who were known to be at risk were allowed by CPS caseworkers to be severely injured or even killed. But we only see those cases after the fact because CPS agencies operate mostly in secret. Often the only reason we know about them at all is because the situation has become so bad that independent investigators or auditors have been brought in to correct matters.
And so it is with Judge Sivilli’s order. She attempted to justify her prohibition on Malhan’s right of free speech by her nod to the best interests of children, but here’s the reality:
In a 2011 Judge Sivilli stripped Surender Malhan, a New Jersey father, of his custody rights on a mere two hours’ notice without affording him an opportunity to refute his estranged wife’s allegations.
Sivilli prohibited Malhan from cross examining his wife or presenting physical evidence that would further demonstrate his parental fitness. The mother retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time Malhan was never granted a plenary hearing.
As seems to be invariably the case, it wasn’t the kids Sivilli was protecting, it was herself. She’d behaved outrageously on the bench. She’d denied Malhan even the pretense of due process of law. And of course, in the process, she’d denied the children in whose “best interests” she claimed to be acting, any contact with their father. Just as with CPS, secrecy that’s supposedly to benefit children ends up doing the opposite.
This is a case to follow. One of the reasons U.S. family courts are fairer than those in the U.K. is that they don’t function in secret. We must not allow those courts to recede behind a veil of secrecy woven by those courts themselves in the form of ad hoc orders gagging litigants. Judge Martini did the right thing. This concept of secrecy in family courts must not be allowed to gain a foothold in this country.
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