Superior Court of Pennsylvania Upholds Order Sanctioning Father $2,000.00 for Cursing in Front of His Ex-Wife and Daughter

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Father Claims that Bucks County Judge’s Order Prohibiting Him From Using “Inappropriate” Language Constitutes an Illegal and Unenforceable Prior Restraint on Free Speech.

“A judge may no more restrict a parent’s use of language that he subjectively finds objectionable than the government can for any other group or individual.” Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy.

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A Pennsylvania intermediate appellate court upheld an order entered by a Bucks County judge sanctioning a father in a custody dispute $2,000.00 for violating a custody order requiring him not to use profanity or inappropriate language around his daughter and the child’s mother (No. 1282 EDA 2009). The specific language of the custody order, entered by Bucks County Court of Common Pleas judge Wallace H. Bateman, Jr. (No. A06-02-63223-C), requires the father to “refrain from using any profanity when dealing with mother and mother’s husband, and using any type of language around the children that’s inappropriate.” The judge held father in contempt of court and sanctioned him $2,000.00 in attorney fees for violating the order after he admittedly used profanities during a custody exchange. Father appealed the finding of contempt and the $2,000.00 in sanctions to the Superior Court of Pennsylvania based on the First and Fourteenth Amendments to the United States Constitution. In his appeal, father did not argue that he did not violate the underlying order. Rather, father argued that the underlying order is unenforceable because it impinges on constitutionally protected speech and is otherwise unconstitutionally vague.

The Superior Court affirmed the order and sanctions today in a short three-page opinion, which did not address any of the constitutional issues raised by father.

“The underling order restricting father’s language around his child and her mother is a classic example of an illegal and unenforceable prior restraint on free speech” according to the father’s attorney, Kevin J. Handy, a partner at the Doylestown law firm of Cooley & Handy. “I’m very surprised that the Superior Court upheld the order considering the controlling case law on the subject. I am even more surprised that the Superior Court failed to address the very significant constitutional issues raised in the appeal in anything more than a superficial manner. Essentially, the Superior Court’s decision grants trial judges carte blanche to restrict parents from exposing their children to a wide variety of constitutionally protected speech, including speech common in classic books, on television, and even on the playground, based on their own entirely subjective notion of what is and is not appropriate.”

The Supreme Court of the United States defines prior restraints on free speech as “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communication are to occur.” Prior restraints carry a heavy presumption of unconstitutionality and are permissible in only exceptional cases such as war, obscenity and incitements to acts of violence and the overthrow of force by the government. Orders issued in the area of First Amendment rights must be framed in the narrowest of terms so as not to prohibit or infringe on any constitutionally protected speech.

That is part of the problem with the order according to Mr. Handy. “Not only does the order prohibit clearly constitutionally protected speech, it is unconstitutionally vague and subject to arbitrary and discriminatory enforcement. Who gets to determine what speech is ‘inappropriate’ and under what standards? The Supreme Court noted in Cohen v. California that courts and legislatures cannot limit speech to appease the most squeamish among us.”

Judges in custody cases often enter orders that purport to restrict what one or both parents may say to each other or around their children. Those provisions, however, are rarely enforced through contempt or sanctions or challenged on appeal. The Court of Appeals of Washington, however, in a similar case, recently held that an order in a custody dispute prohibiting a father from contacting immigration or other governmental official concerning his ex-wife’s immigration status constituted an illegal prior restraint. The case is In re the Marriage of Meredith.

“Parents to custody disputes have no less constitutional rights than parents in intact families or other individuals,” claims Mr. Handy. “A judge may no more restrict a parent’s use of language that he subjectively finds objectionable than the government can for any other group or individual.”

The father in the case intends to appeal the Superior Court’s decision to the Supreme Court of Pennsylvania.

Mr. Handy notes that the father is not arguing in his appeal that judges cannot take into consideration profanity use or other constitutionally protected speech in formulating their custody decisions. “That issue is for another day,” states Mr. Handy. “The father is only claiming that judges in custody cases cannot prohibit or sanction constitutionally protected speech.”

Cooley & Handy represents individuals in personal injury, class action, divorce, custody, and other litigation in Bucks, Montgomery and Philadelphia Counties and throughout Pennsylvania.

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