Facts: Father was involved in a legal dispute with Maternal Grandparents about 11-year-old Child. Father was found guilty of criminal contempt. At the hearing to set Father’s bail pending an appeal, Father’s father—Child’s paternal grandfather—testified as a witness.

The trial court admonished Paternal Grandfather not to discuss the case with Child. The trial court was concerned because Paternal Grandfather told Child “her daddy is in jail” because he didn’t comply with the Maternal Grandparents’ visitation. He also told Child that Maternal Grandparents don’t think Father is an adequate parent and they don’t get to see Child as often as they want to.

The trial court declined to set bail for Father, and the Court of Appeals vacated that decision three days later.

In the proceedings that followed, the trial court ordered Paternal Grandfather—a nonparty—“not to discuss these proceedings” with Child.

Paternal Grandfather filed a petition for certiorari.

On Appeal: The Court of Appeals reversed the trial court’s order.

A writ of certiorari is an order from a higher court directing a lower court to send up a record for review so the higher court can determine whether the lower court exceeded its jurisdiction or acted illegally, fraudulently, or arbitrarily. Where a petitioner alleges the trial court acted without legal authority and there is no other remedy, a writ of certiorari may be justified.

Both the First Amendment of the U.S. Constitution and the Tennessee Constitution provide broad protections to prevent the abridgment of a person’s right to freedom of speech.

“Prior restraint” is a constitutional term describing administrative or judicial orders that forbid a communication before the communication is to occur. A prior restraint bears a heavy presumption against its constitutional validity.

Questions of whether a person’s fundamental rights, such as freedom of speech, have been infringed are subject to strict scrutiny review by the courts. This requires that restraints on speech be narrowly tailored to serve a compelling governmental interest.

Maternal Grandparents argued that certain restrictions on speech are common in domestic relations cases, such as non-disparagement clauses in parenting plans that prohibit one parent from disparaging the other parent in front of the child.

In Gider v. Hubbell, the trial court prohibited the mother from discussing the custody proceedings and other “adult-only” issues with the child and making defamatory remarks about the father because the adverse effect on the child outweighs the mother’s free-speech rights. The Court of Appeals approved these restrictions because they were supported by factual findings and narrowly drawn.

The Court found this case to be markedly different:

In Gider, the individual being restrained was the child’s mother and a party to the case. Here, [Paternal Grandfather] is a nonparty who voluntarily showed up to testify at the hearing. In Gider, we emphasized the necessity of adequate factual findings and that the restraints on speech be narrowly tailored to limit the prohibited speech. As [Paternal Grandfather] points out, there was no specific finding of danger to Child in this case. Instead, the trial court appears to have based his decision to restrict [Paternal Grandfather’s] speech simply on its subjective view about what children should or should not hear. That will not suffice. A trial court’s personal opinion is not a basis for restricting a person’s constitutional right to free speech. In Gider, the trial court heard evidence that the mother’s remarks had an adverse impact on the child. By contrast, here, there is no such evidence or corresponding factual findings to justify the trial court’s prior restraint orders against [Paternal Grandfather] discussing the legal proceedings with Child. Absent any such specific findings, the trial court’s prior restraint orders are based merely on the trial court’s subjective beliefs, which cannot outweigh [Paternal Grandfather’s] First Amendment rights.

Beyond the lack of evidentiary support or factual findings to support the prior restraints, [Paternal Grandfather] is not even a party to the underlying action. He was a voluntary witness at a hearing on a motion to set bail. [Maternal Grandparents] argue that trial courts have wide discretion under Rule 65.07 to issue injunctions. In response, [Paternal Grandfather] points out that Rule 65.07 contemplates injunctions issued upon application. No application was made here; the trial court just decided on its own that [Paternal Grandfather], a nonparty, should not talk to Child about the legal proceedings including telling Child where her father was. [Paternal Grandfather] lacked any notice or meaningful opportunity to respond. Crucially, he also lacked the benefit of the hearing. Despite the circumstances, the trial court entered orders restraining [Paternal Grandfather’s] speech, one of the most serious actions a court can take. It is little wonder that [Maternal Grandparents] concede they have found no authority for such a proposition. Rule 65.07 is of no avail to [Maternal Grandparents] here, and the trial court’s prior restraint orders do not pass constitutional muster.

The Court reversed the trial court’s ruling.

K.O.’s Comment: The trial court’s refusal to set bail after finding Father guilty of criminal contempt reminds me of a case I’ll always remember. I represented a man found guilty of criminal contempt. I asked for bail pending appeal, but the trial court refused, instead ordering my client into the immediate custody of law enforcement to serve his 10-day sentence. My client sat next to me at counsel table—handcuffed—for the rest of the hearing. It was a surreal experience. That afternoon, I, along with two other lawyers, worked furiously to file an emergency appeal to the Court of Appeals. The following morning, the Court of Appeals issued an order directly to the sheriff to immediately release my client, who had wrongfully spent the night in jail.

Here, the trial court made the same mistake in denying bail for a misdemeanor offense. That mistake was reversed three days later by the Court of Appeals.

Lawyers and judges must understand that criminal contempt is a misdemeanor offense, and contemnors have the right to be released on reasonable bail pending appeal. See Tenn. R. Crim. P. 32(d)(1).

Source: Malone v. Rose (Tennessee Court of Appeals, Middle Section, March 26, 2024).

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