Mother Ordered Not to Speak Publicly About Child Protection Proceedings; Maine High Court Says Order Violates First Amendment

From In re Child of Cassie S., decided by the Maine Supreme Judicial Court yesterday, in an opinion by Chief Justice Valerie Stanfill:

Cassie S. is the mother of a child with a complex medical history beginning when the child was about six months old. When the child was twenty-one months old, the mother persuaded the child’s doctor to perform an invasive procedure—a tracheotomy [I assume this should read “tracheostomy” -EV]—to attempt to cure cyanotic spells she had observed. According to the mother, the tracheostomy did not ameliorate the cyanosis, so the child’s medical providers recommended its immediate removal. The mother, however, insisted that the child’s tracheostomy become permanent.

In the years that followed, the mother took the child to various medical providers in Maine and other states, many of whom recommended the removal of the child’s tracheostomy. The mother also reported to the child’s doctor that the child was aspirating on liquids, and as a result, a gastrostomy tube was placed in the child’s stomach.

Ultimately, the medical director of the child protection program at a Massachusetts medical center reported the mother to the Maine Department of Health and Human Services. The medical director expressed concerns that the child had received inappropriate medical care at the urging of the mother. As a result, the Department petitioned for a protection order in 2019, although that petition was ultimately dismissed. Throughout the 2019 proceedings, the mother spoke to the press about the Department’s efforts to remove the child from her care, resulting in published articles about the child’s medical history and the mother’s experience with the Department.

In September and October 2023, when the child was eight years old, the mother took him to a pediatric pulmonology specialist in New York City. The child arrived in a wheelchair with a tracheostomy, gastrostomy tube, and leg braces. Doctors conducted various medical tests and exams, all of which found no abnormalities. The doctors observed no mobility issues even though the child was wearing leg braces and the mother reported concerns with his balance and gait. The child’s neurological examiner concluded that there was no evidence of a neuromuscular abnormality. The pulmonologist concluded that the child did not need the tracheostomy or gastrostomy tube, and that to begin the removal process, the child should be observed overnight with his tracheostomy capped. The mother refused to permit the child to undergo that evaluation. In fact, after the child’s discharge from the New York hospital, the mother scheduled a procedure with a Massachusetts doctor to enlarge the child’s tracheostomy, a procedure that the court ultimately blocked.

On October 18, 2023, the medical center in New York filed a report with the Department expressing concerns that the mother was engaging in medical abuse of the child.

This led to a child protection order proceeding against the mother, and to this analysis:

The mother has a history of inviting members of the press, state legislators, or other members of the public to child protection proceedings. During the pendency of the prior petition, the mother spoke to the press about the case, resulting in newspaper articles about the child’s medical history and the mother’s experience with the Department. On the first day of the jeopardy hearing in the current case, after multiple members of the public, including media, attempted to attend the hearing, the court issued the following order:

This matter is confidential pursuant to Title 22 § 4007. The parties in this matter are enjoined and forbidden from speaking to the media, posting on any social media platform, or speaking about any issues involved in this litigation. Any dissemination of the kind is subject to sanction, including but not limited to fine and/or contempt of court.

The mother contends that the judge’s order restricting her ability to discuss this case is an unconstitutional prior restraint under the First Amendment. Because the mother did not challenge this order in the trial court, we review the order for obvious error that “affects substantial rights or results in a substantial injustice.”

Court orders that prohibit future communications are considered prior restraints on speech. “There is a ‘heavy presumption against [the] constitutional validity’ of any prior restraint on speech.” “The presumption against prior restraints is heavier—and the degree of protection broader—than that against limits on expression imposed by criminal penalties.”

A prior restraint on speech is an extraordinary remedy, and for it to be permissible,

the harm from the unrestrained speech must be truly exceptional. A prior restraint is permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.

Because this order is a prior restraint that restricts the content of speech, it is subject to strict scrutiny. To satisfy strict scrutiny, a prior restraint on speech must be “necessary to serve a compelling state interest and … narrowly drawn to achieve that end.”

The court’s order relied on Title 22, section 4007, which provides that “[a]ll [child protection] proceedings and records shall be closed to the public, unless the court orders otherwise.” There is no question that the state has a compelling interest in ensuring that child protection proceedings remain confidential. Safeguarding the details of a child’s alleged abuse and medical conditions is of paramount importance. See Globe Newspaper Co. v. Super. Ct. (1982) (protecting the physical and psychological well-being of a minor is a compelling interest); see also Handler v. Mayhew (D. Me. 2012) (“[T]he state has a recognized interest in protecting child victims from undue trauma and humiliation ….”).

However, the trial court’s order restraining the mother’s speech is not narrowly tailored to ensure confidentiality throughout the proceedings and to protect the child’s well-being. A restriction on speech is narrowly tailored if it does not “unnecessarily circumscribe protected expression.”

The Supreme Court of Pennsylvania held that, in an ongoing child protection case, an order forbidding a parent from communicating details to the public which would tend to identify the child, including the use of the parent’s name in public communications about the child protection case or child abuse generally, was a permissible restraint on speech. S.B. v. S.S. (Pa. 2020). The Court explained that the order restricting speech

affords Appellants ample opportunity to disseminate all of their thoughts into the marketplace of ideas without restriction on the content of their message. The gag order further allows Appellants to voice all of their opinions regarding issues important to them, including parental alienation, child sexual abuse, and placement of children in the custody of sexually abusive parents, and to testify about these issues before governmental bodies in an effort to remedy these vital societal concerns. The only limitation on Appellants’ speech lies in the manner of communication, as they are precluded from conveying such public speech in a way that exposes Child’s identity and subjects him to harm.

In contrast to the order approved in S.B., here, the court issued a sweeping restriction that prevents the mother from “speaking to the media, posting on any social media platform, or speaking about any issues involved in this litigation.” This restraint on speech appears to preclude political speech such as advocacy for reform of the child protection system. It may also prevent the mother from speaking to the media and posting on social media in general. The mother’s ability to speak to the press about her experience with this case as a means of advocating for policy or governmental change is the exact kind of “core speech” that the First Amendment is intended to protect. However, disclosing information which would tend to identify the child is not core speech and may be restricted given the government’s compelling interest in protecting the child from harm.

Likewise, a prior restraint with no definite term may be overbroad, depending on the circumstances.

Although the State has a compelling interest in restricting access to child protection proceedings and enforcing nondisclosure of private information, the court’s order is not narrowly tailored to achieve that interest. We thus vacate the order restraining the mother’s speech and remand to the trial court for modification, including by providing a time limit and narrowing the order’s scope to encompass only the disclosure of confidential information or information that would tend to identify the child….

I appreciate the argument for protecting the mother’s speech: People have to be free to criticize the judicial system, and the parties to proceedings may have special insight as to possible problems with the system (though of course they also have special biases). But I’m not sure how the mother’s rights can be reconciled with the court’s allowance of restrictions on “disclosure of … information that would tend to identify the child”: Presumably the mother’s speaking under her own name about what happened to her child would tend to identify the child, to anyone who knows the mother.

The Pennsylvania Supreme Court in S.B. v. S.S. (a case cited by the opinion) dealt with that by (among other things) requiring the mother not to identify herself in certain criticisms of the court decision. But that itself raises pretty serious First Amendment problems, I think (see this post for more): Requiring people to speak anonymously when criticizing the government, and to fuzz out any facts that might let people in the community figure out who the speakers are (and thus who the child is), is a massive restriction on the ability to engage in such criticism.

In any event, I’m not sure how the Maine courts will end up resolving all this, though I think the Maine high court at least got it right in saying that the original order was unconstitutional. The court was also right in concluding, contrary to the Pennsylvania Supreme Court in S.B. v. S.S., that these injunctions are content-based.