A corruption victim sent this along to me. Gag orders are almost always wrong and Unconstitutional. The courts have no jurisdiction to regulate the media.
Almost the same fact pattern as In re Weddigen, but in this case, Mother is posting her comments on social media criticizing the judge, the court, the lawyers and the decision. The judge enters a gag order that the parties cannot comment on the case in his court based upon “best interests of the child”. Mother objects to the order and an appeal follows:
This Court noted that “a trial court can require the parties in a divorce proceeding to refrain from making derogatory remarks about the other before the children.”25 Our analysis, however, does not end there. Prior restraints of speech, the order here, are not unconstitutional per se, but they bear a “heavy presumption against [their] constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” a prior restraint is subject to “exacting scrutiny.”28 The United States Supreme Court has instructed: [p]roperly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.
Reviewing the injunction in this case, we conclude that the superior court failed to properly balance the danger flowing from the prohibited speech with the parties’ and attorneys’ First Amendment rights. The superior court did reference its finding in the temporary restraining order that it balanced Baskin’s First Amendment rights with “the rights of the children not to have derogatory and disparaging comments posted in a public forum concerning their parents and the rights of the children [not to] have details concerning their family’s legal issues placed in a public forum,” finding that “placing derogatory and disparaging remarks in the public forum . . . concerning the opposite party and/or placing details concerning this litigation in the public forum is detrimental to the parties’ minor children . . . and intimidating to the parties.” The court, however, failed to share the basis of such a conclusion, pointing 29 to no evidence regarding the negative affect that such speech had on the children, and it made no attempt to find that the injunction was narrowly tailored to protect any compelling interest.
We further note that although Hale filed a motion for the temporary restraining order subsequently issued by the court, he did not move for a permanent restraining order. Instead, the trial court issued the permanent injunction sua sponte, referencing order.30 a motion to recuse filed by Baskin, as well as an action she filed in federal court seeking to overturn the temporary order, noting that her actions “[were] an obvious attempt to intimidate the [judge].”
Our review of the order, the record, and the transcript of a status conference indicates that the trial court was primarily concerned with Baskin’s public criticism regarding the litigation, including the court’s rulings, as well as the involvement of third parties who, among other actions, questioned the accuracy of court transcripts. 31
As the United States Supreme Court has stated, [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. Although it is assumed that judges will ignore the public clamor or media reports and editorials in reaching their decisions and by tradition will not respond to public commentary, the law gives judges as persons, or courts as institutions no greater immunity from criticism than other persons or institutions. The operations of the courts and the judicial conduct of judges are matters of utmost public concern.
Certainly, we recognize the authority granted to trial courts to restrict a parent’s communications and postings on social media during the pendency of a divorce or custody proceeding, as the trial court did in Lacy. However we cannot condone the superior court’s attempt in this case to restrict the parties’ and lawyers’ right to 32 33 publicly criticize the court and the litigation for the next ten years. Given the absence of any evidence of “imminent danger to a compelling interest of such magnitude that the restraint on the parties’ [and lawyers’] speech would be warranted,” as well as the superior court’s failure to properly conduct the balancing test and narrowly tailor the restrictions, we vacate the permanent injunction issued in this case.34