Facts: Mother and Father are the never-married parents of Child. They entered into an agreed parenting plan that designated Mother as the primary residential parent and allowed both parents to share substantially equal time with Child.

Six years later, Father petitioned to change custody because of issues with Mother’s mental health, physical health, the condition of her home, and the parties’ disagreement regarding Child’s education.

Although details are not provided, the opinion makes clear that there was also significant concern about the propriety of Mother’s communications with the then seven-year-old Child. Mother also posted disparaging remarks about Father online; for example, she sometimes referred to Father as “my Turkish enemy.”

During the trial, Mother conceded that she had shared details about the custody case with Child. Mother said she did not believe there is any age too young to talk to a child about most things.

The principal at Child’s school testified that she had several conversations with Mother concerning inappropriate topics to discuss with children.

The Court Appointed Special Advocate (CASA) volunteer expressed her concern about Mother’s inability to control what she said to Child.

For a variety of reasons not discussed in this post, the trial court determined that Father should be the primary residential parent and have sole decision-making authority.

Regarding the substantive issues discussed in this post, the trial court entered an injunction prohibiting Mother from:

• referencing Father at all on social media or making disparaging remarks about Father on social media;
• having any conversations with Child about the court proceedings or about topics that are “adult-only issues”; and
• making any disparaging remarks about Father to Child or in Child’s presence.

Mother appealed.

On Appeal: The Court of Appeals affirmed and modified the trial court.

Mother argued the injunction violates both the United States Constitution and the Tennessee Constitution as an impermissible prior restraint on speech.

An impermissible “prior restraint” exists when the exercise of First Amendment rights depends upon prior approval of public officials. A system creating prior restraints bears a heavy presumption against its constitutional validity.

In the context of protected speech, “prior restraint” is a label used in constitutional law to describe administrative or judicial orders that forbid a communication when issued in advance of the time that the communication is to occur. Thus, governmental action constitutes a prior restraint when it is directed to suppressing speech because of its content before the speech is communicated.

Both the United States Constitution and the Tennessee Constitution provide broad protections to prevent the abridgment of a person’s right to freedom of speech. These protections require the application of strict scrutiny review when a court is presented with the question of whether a person’s fundamental rights, such as freedom of speech, have been infringed. Strict scrutiny requires that the restraint on speech be narrowly tailored to serve a compelling governmental interest.

The trial court’s injunction constitutes a “prior restraint” because it restrains a parent’s speech in the context of a child-custody dispute. Under the circumstances, the danger of physical or emotional harm to the child must be balanced against the parent’s First Amendment rights. In doing so, courts must consider whether the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest. The government has a compelling interest in protecting children from harm.

The Court determined that the injunction did not violate Mother’s First Amendment rights:

Mother’s conversations with the child were unquestionably harmful, as were Mother’s social media posts. By her own admission, Mother often posted the details of the parties’ custody dispute on social media for the purpose of communicating with Father. . . .

*     *     *     *     *

Under these facts, it is entirely proper for the [trial] court to restrict Mother from making disparaging and clearly defamatory remarks about Father online or to the child or in the presence of the child. . . . Such remarks are not worthy of constitutional protection. And we conclude that the restrictions placed on Mother in this regard to not unduly burden constitutionally-protected speech. . . . In light of their adverse effect on [Child], the record also supports restricting Mother’s communication to the child about the court proceedings and other topics specifically identified in the order. The demonstrated harm outweighs Mother’s free-speech rights.

Nonetheless, we conclude that certain of the restrictions placed on Mother’s communications were overbroad or vague. The prohibition against any mention of Father by Mother on social media would prohibit even the most benign reference to Father. And the prohibition against Mother discussing “adult-only issues” with her child leaves a reasonable basis for doubt as to what topics, beyond those specifically mentioned in the order, Mother may not discuss. Consequently, we modify the [trial] court’s injunction to remove the prohibitions against (1) any reference by Mother to “Father at all on social media” or (2) discussions of “adult-only issues” beyond those topics specifically referenced in the injunction. Our ruling, however, does not preclude the [trial] court from expanding its injunction in the future to cover additional topics provided the restraints on Mother are supported by adequate factual findings and are narrowly tailored to limit the prohibited speech.

Thus, the trial court’s injunction was affirmed as modified after removing the speech prohibitions that were overbroad or vague.

K.O.’s Comment: It’s unusual to see constitutional law regarding free speech in a family-law opinion. In fact, the Court was unable to find any Tennessee cases directly on point so it had to look to decisions from other states. Now we have a Tennessee case holding it is not unconstitutional for a court to restrict a parent’s speech if the evidence shows the speech is harmful to the child.

Gider v. Hubbell (Tennessee Court of Appeals, Middle Section, March 29, 2017).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.