S.B. v. S.S. Apl of: S.S.
243 A.3d 90
Pa.2020Background
- Parents (Mother S.S. and Father S.B.) engaged in protracted custody litigation over their son; after a 23-day custody trial the trial court awarded Father sole custody and found Mother had alienated the child and that Father had not sexually abused him.
- Mother and her counsel held an online press conference and posted documents (including redacted/transcribed portions of the child’s forensic interview and in‑court testimony) that, together with disclosure of Mother’s identity, risked allowing local community members to identify the child.
- Father moved for relief; the trial court ordered Mother and her attorneys to remove posted materials and prohibited them from speaking publicly about the case in any manner that would identify or tend to identify the child (the "gag order"). The order allowed general testimony about parental alienation and child sexual abuse so long as the child was not identified.
- The Superior Court affirmed, concluding the order was a content‑neutral restriction on the manner of speech that furthered the important governmental interest of protecting the child’s psychological welfare and privacy and was narrowly tailored.
- The Supreme Court of Pennsylvania granted review and affirmed: it held the gag order a content‑neutral time/place/manner restriction subject to intermediate scrutiny (O’Brien), satisfied the O’Brien factors, was not unconstitutionally vague, and did not violate Article I, §7 of the Pennsylvania Constitution in these circumstances.
Issues
| Issue | Plaintiff's Argument (Mother/Appellants) | Defendant's Argument (Father/Trial Court) | Held |
|---|---|---|---|
| Whether the gag order is a content‑based restriction requiring strict scrutiny | The order is a total ban on speaking about the case (plain language) and thus content‑based; strict scrutiny applies | The order targets the manner/target (identification of the child), not message content; content‑neutral | Court: content‑neutral (targets method/identification); intermediate scrutiny (O’Brien) applies |
| Whether the gag order is an unconstitutional prior restraint | It restrains speech before it occurs and is presumptively invalid as a prior restraint | It regulates parties’ extrajudicial speech to prevent imminent harm to the child; limiting participants is less restrictive than restraining the press | Court: not an impermissible prior restraint in context; permissible to restrict participants’ manner of speech to protect child |
| Whether the restriction furthers a governmental interest and is narrowly tailored (O’Brien / TPM) | No evidence that future speech would imminently harm the child; order is overbroad and indefinite | Protecting a minor’s psychological/emotional well‑being and privacy is an important/compelling interest; the order is narrowly tailored and leaves alternative channels | Court: record supports substantial likelihood of harm; interest is important and the order is narrowly tailored and leaves ample alternatives |
| Vagueness, duration, and state‑constitutional challenge | Terms like “tend to identify” and “encourage” are vague; no expiration; Article I, §7 provides broader protections than First Amendment | Language gives fair notice that identifying the child is forbidden; duration tied to child’s minority; state and federal protections are coextensive here | Court: not unconstitutionally vague; duration reasonably linked to child’s minority (courts should specify); Article I, §7 claim fails here (coextensive with First Amendment in these facts) |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (content‑based speech regulations trigger strict scrutiny)
- United States v. O’Brien, 391 U.S. 367 (intermediate scrutiny test for content‑neutral speech regulations)
- Ward v. Rock Against Racism, 491 U.S. 781 (content‑neutrality inquiry centers on government purpose; TPM standards)
- Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (prior restraints are highly disfavored)
- Seattle Times Co. v. Rhinehart, 467 U.S. 20 (court‑ordered limitations on litigants’ extrajudicial disclosures to protect privacy may be permissible)
- Shepp v. Shepp, 906 A.2d 1165 (Pa.) (parental rights to speak may be limited to prevent harm to a child)
- Pap’s A.M. v. City of Erie, 812 A.2d 591 (Pa.) (analysis of Article I, §7 and scope of state free‑speech protection)