On June 6, 2011, a judge in a small Pennsylvania county courthouse issued a custody order and started a firestorm. The order, citing the children’s best
interests, required a father embroiled in a custody battle to take down his
critical blog “The Psycho Ex-Wife” and refrain from mentioning either his
wife or his children “on any public media.” It immediately garnered
national media attention, outraged divorced-parent Internet support groups around the country, and was even deemed blog-worthy by a renowned
constitutional expert. All of these observers posed the same question: how
could this restriction on speech be consistent with the demands of the First
Amendment? Expressing concern about the judge’s order, Professor Eugene
Volokh mused, “That strikes me as a pretty clear First Amendment violation;
whatever the scope of family courts’ authority to protect children’s best
interests might be, it can’t extend to criminalizing one adult’s public speech
about another adult.”
These types of orders, however, are actually quite common in family
court proceedings. Under the amorphous “best interests of the child”
standard, judges have ordered parents to bring their children to church,
avoid criticizing ex-spouses or their religious beliefs, refrain from bringing
intimate partners near the children, and even communicate feelings of love toward their ex-spouses. Although some scholarship has addressed judges’
consideration of parents’ religious beliefs or sexual preferences in granting
custody, the constitutionality of family court orders structuring family
interaction and crafting rules of parental behavior, like the custody order
issued by Judge Diane Gibbons in Bucks County, “has largely escaped the
notice of all but a few First Amendment scholars” and “survives partly
because of the little attention paid to family law proceedings.” Thus, family
law courtrooms have the potential to become constitutional “twilight
zones” in which judges adjudicating the responsibilities and obligations of
the most basic unit of American society illegitimately violate parents’
constitutional rights in the name of children’s best interests. In this framework,
are children’s best interests compelling enough to override parental
claims to free speech? Is it time for a radical normative rethinking of the
role and function of the family law judge to more accurately correspond to
reality? Or is there another legal standard that could be imported for use in
this context?
This Comment examines the role that the First Amendment currently
plays in family court proceedings and highlights the constitutional tensions
inherent in speech restrictions issued under the best interests standard. As
the adage goes, marriage is a “contract between three parties—the husband,
the wife, and the State.” Yet it is unclear how the State is or should be
constrained in adjudicating the parties’ responsibilities once the marital
relationship is dissolved, particularly when there are children involved
whose interests must be weighed against parental rights. Cases such as
Pierce v. Society of Sisters and Yoder v. Wisconsin have affirmed a parent’s fundamental right to control the upbringing of his or her children, but when
families dissolve during divorce and parents fundamentally disagree about
how to raise their children, judges—governed only by the vague and easily
manipulated best interests standard—inject themselves into the proceedings
and suddenly wield immense power over parental decisionmaking, relationships,
and essential liberties. Due to the weight of the liberties at stake,
greater attention to this area of law is vital to ensure both that parental
rights are not trampled and that children’s interests are protected. This
Comment provides such attention by examining contemporary court
practices in issuing custody orders restricting speech, analyzing the advantages
and shortcomings of three potential jurisprudential frameworks, and
identifying the best standard of analysis that better protect both parents’
rights and children’s interests.