The case is In re T.T., decided today by the Nebraska Court of Appeals. A few relevant passages:
This appeal involves a 17-year-old youth, T.T., who was left by his parents at a Lincoln, Nebraska, hospital under a previous version of Nebraska’s “Safe Haven” law. The mother and stepfather, S.Q. and A.Q., respectively, whom we generally reference throughout as “the parents,” appeal from the decision of the separate juvenile court of Lancaster County prohibiting them from disclosing to the public specified information concerning T.T., his medical condition, and his treatment (the gag order), as well as from the court’s order that they participate in a pretreatment assessment. We conclude that the gag order cannot survive constitutional scrutiny …….[T]he juvenile court ordered:
There will be no further public disclosure by the parents of [T.T.’s] private medical information: [T.T.’s] full, legal name; [T.T.’s] date of birth; his social security number; any specific diagnosis that he has been given; any medication he has been prescribed; names of any providers of treatment to [T.T.] and type of treatment provided.… [W]e can surmise … that the November 26 gag order arose from the publication of an article in the Wall Street Journal about T.T. and Nebraska’s then-existing Safe Haven law….
We do not disagree with the juvenile court’s conclusion that further disclosure of T.T.’s private medical information is not in T.T.’s best interests, because we think the evidence recited above [omitted in this excerpt -EV] makes that conclusion inescapable. However, the fundamental difficulty is that the child’s best interests are not the standard, nor does the juvenile court’s rationale for the entry of the gag order comport with the established law allowing the lawful entry of a judicial order imposing a prior restraint on speech.
The law is clear that our obligation is to subject a prior restraint on free speech to “exacting scrutiny” and that such restraints begin with a “heavy presumption” of unconstitutionality. When we scrutinize the gag order, remembering that it is the State’s “heavy burden” to justify the restraint, we must assess “the imminence and magnitude of the danger … and then … balance the character of the evil … against the need for free and unfettered expression.”
And in this case, the evidence is that the parents wish to exercise their right of free speech in the arena where public policy is formed, rather than merely for their own personal ends. Given the applicable legal principles regarding prior restraints on speech, we hold that a restraint on speech against disclosure to the public of information about a juvenile because it is in the juvenile’s “best interest,” as the juvenile court found, is an insufficiently justified prior restraint on speech. We now turn to the danger or harm to T.T. and its imminence.
No witness testified that further disclosure posed imminent physical or emotional harm or danger to T.T. of any magnitude. The record clearly supports the conclusion that if T.T.’s parents make further public disclosure about him, his past difficulties, or his treatment, T.T. will likely be angry and embarrassed, plus reconciliation with his family will be more difficult. On the other hand, we remember that the evidence shows he is “over it” with respect to the Wall Street Journal article. And, as said in The Pentagon Papers, a prior restraint on speech cannot be predicated on “surmise or conjecture that untoward consequence may result.” Moreover, while we do not know exactly what was disclosed in the Wall Street Journal article, it is a permissible inference that at least some of the information restricted by the gag order is already in the public domain. Thus, this factor reduces the effectiveness of the gag order, as well as undercuts any claim that the danger of harm is imminent….
Having said this, we must acknowledge the tension between the parents’ right to speak about T.T., although doing so is not in his best interests, and our often-stated doctrine that the juvenile court need not wait for disaster to befall a minor child before acting. But, that doctrine has never been applied in the context of a gag order on parents involved in the juvenile system.
Sounds correct to me.
sk says:
Perhaps correct, but I question a few bases of the argument.
“And in this case, the evidence is that the parents wish to exercise their right of free speech in the arena where public policy is formed, rather than merely for their own personal ends.”
Why is this (constitutionally) important? Would the constitutionality of their speech be changed by their motive for speaking? If so, I would find it odd. In essence, you have free speech as long as your motives are pure…
Sk.
December 8, 2009, 1:01 pmCan't find a good name says:
“We do not know exactly what was disclosed in the Wall Street Journal article”?
If the parties didn’t enter the newspaper article into evidence, shouldn’t the court have taken judicial notice of the newspaper and looked it up? The WSJ is not exactly an obscure newspaper.
December 8, 2009, 2:15 pmSoronel Haetir says:
What I find strange here is the claim that a juvenile court even has jurisdiction over these parents.
December 8, 2009, 2:52 pmCrunchy Frog says:
Possibly a better way of putting it would have been, “We do not know the totality of what was divulged to the WSJ reporter, only what was published in the article.”
December 8, 2009, 3:20 pmCrunchy Frog says:
He’s still 17 and a ward of the State, therefore the juvy court has jurisdiction over all things T.T.
December 8, 2009, 3:22 pmGuest12345 says:
I suspect there is zero basis in the law for this, but given that his parents decided to abandon the boy and give him up to the State of Nebraska I would argue that any information they gained about the boy — due to being his parents — having given up being his parents, they should lose the privilege of that information. I know there is a reality here that they know what they know, but I see no problem with telling them that any dissemination of that knowledge be restricted.
December 8, 2009, 4:15 pmDavid Schwartz says:
Guest12345: Not only is there no basis in the law, there’s no basis in reason either. Prior restraints on the exchange of truthful information that was lawfully acquired is an absolute last resort saved for the most extreme cases of irreparable harm.
December 8, 2009, 5:10 pmMark N. says:
I agree it was weirdly phrased, but I took it to mean: “we don’t know which parts of the information the gag order sought to protect were disclosed in the Wall Street Journal article”. Clearly the court can find out what was in the WSJ article by just reading it, but the court doesn’t know what exactly it is that the gag order seeks to prevent disclosure of, and therefore isn’t sure what portion of that was already disclosed in the WSJ article (which is relevant to its cat-out-of-the-bag analysis).
December 8, 2009, 8:34 pmRichard Gould-Saltman says:
Anyone yet FIND the WSJ article?
I’m gathering that what happened here is that when Nebraska momentarily bolloxed up their “Safe Haven” law, so that all minor children qualified, SQ and AQ dumped teen-aged TT at a hospital and said, in effect, “We can’t handle dealing with this kid; he’s yours”.
They then proceeded, I’m inferring, to describe to a WSJ reporter:
(a) exactly how much of a train-wreck they thought TT was, (“S.Q. testified that her son had a long history of “mental health issues”),
(b) WHY, in their view, this justified their dumping him at a hospital, and, apparently,
(c) their view that it at least in part the fault of the state of Nebraska for not providing adequate care for T.T..
Mom, at least, apparently wanted to go on, at length, in public forums, in the same vein.
It’s not clear whether the WSJ came upon them of its own initiative, or if the parents went to the media (sort of like those child-minded folks who complained that the local bakery would not put “Happy 3rd Birthday Adolf Hitler!” on their kid’s birthday cake.)
The Court of Appeals notes that a trial court could find, on this record, that SQ and AQ were acting contrary to T.T.’s best interests; , they “. . . further find that the juvenile court’s order requiring the parents to participate in a pretreatment assessment . . . . . . was reasonable, appropriate, and supported by the evidence. “
December 9, 2009, 4:48 amCan't find a good name says:
Mark N.: Actually, the court knew what was in the gag orders, because it quoted from them. The key provision in the gag orders was:
However, it appears from the opinion that the first gag order was not entered until after the Wall Street Journal article appeared.
December 9, 2009, 9:42 amdcperson says:
http://online.wsj.com/article/SB122728078741248013.html
December 9, 2009, 1:41 pm