J-A26041-18

                                2018 PA Super 354


 S.B.                             :              IN THE SUPERIOR COURT OF
                                  :                   PENNSYLVANIA
                                  :
           v.                     :
                                  :
                                  :
 S.S.                             :
                                  :
                                  :              No. 753 WDA 2018
 APPEAL OF: S.S., RICHARD DUCOTE, :
 ESQUIRE, AND VICTORIA            :
 MCINTYRE, ESQUIRE                :

                    Appeal from the Order April 27, 2018
     In the Court of Common Pleas of Allegheny County Family Court at
                         No(s): FD-15-008183-10


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:                              FILED DECEMBER 24, 2018

        S.S. (Mother) appeals from the order prohibiting Mother and her

attorneys from discussing the facts in this case with members of the news

media, including but not limited to print and broadcast media, online or web-

based communications, and inviting the public to view existing online or web-

based publications. We affirm.

        A prior panel of this Court summarized the relevant factual and

procedural history of this case as follows:

        Child was born . . . in 2006. [S.B. (Father)] and his first wife . . .
        adopted Child in 2007, when he was six months old.[FN]1 [Father’s
        first wife] died . . . when Child was two years old. Father
        continued his close relationship with [his first wife]’s extended
        family, and he raised Child, with their support, for the next four
        years. In May 2012, Father met Mother on an online dating
        website; they married four months later. Mother adopted Child in
        2013.
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                [Father’s first wife] was diagnosed with breast
           [FN] 1

           cancer in 1999 and underwent chemotherapy. She
           and Father wanted to start a family, and they began
           the adoption process in 2003. They contacted . . . an
           adoption agency . . . and after going through a home
           study . . . and meeting the [adoption agency’s]
           requirements, the adoption was finalized in February
           2007. N.T. Trial, 5/20/16, at 176-78.

     The parties’ relationship was short-lived; in November 2013,
     Mother moved out of the main house and into the guesthouse.
     One year later, Mother left the marital residence and moved into
     her own home. The parties entered into a custody agreement on
     November 22, 2014.

     Father filed a complaint in custody on June 11, 2015; Mother
     counterclaimed for primary custody. On October 9, 2015, the
     court held a hearing and entered an interim custody order pending
     a custody trial. The interim order expanded Father’s custodial
     time. Days later, Mother filed a Petition for Abuse (PFA), on behalf
     of herself and Child, alleging Father had sexually abused Child,
     and the court ordered supervision of Father’s custodial periods.
     Over one month later, after a five-day trial, the court dismissed
     the PFA petition.

     On January 21, 2016, the court scheduled a custody trial to be
     held in April of that year; on February 2, 2016, Mother filed a
     second PFA petition on behalf of herself and Child, again alleging
     Father’s sexual abuse of Child.[FN]2 Senior Judge Lee J. Mazur
     denied the petition without a hearing and recommended the
     petition be presented again before the Honorable Kim Berkeley
     Clark, who was presiding over the custody matter. Judge Clark
     denied the petition without a hearing.

           [FN] 2On February 4, 2016, Mother filed an emergency
           petition for special relief, indicating Child made
           additional disclosures of sexual abuse and that Child
           was refusing visits with Father. The court suspended
           visitation and contact between Father and Child. That
           same day, the court appointed Maegan Susa Filo,
           Guardian ad litem (GAL), to represent Child’s best
           interests. On April 11, 2016, after meeting with the
           parties, Child, communicating with counsel for both

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J-A26041-18


           parties, reviewing expert reports, GAL made several
           recommendations, including the following:

               Child be immediately removed from Mother’s
               care and placed with Father after attending the
               Family Bridges program;

               Child should be immediately reunited with
               [Father’s first wife]’s extended family;

               Child should    begin   attending   his   former
               synagogue;

               Child should begin to attend his [] adoption
               group in which he participated previously with
               Father;

               Father should be granted sole legal custody of
               Child;

               Both Mother and Father should follow any
               recommendations made by Dr. McGroarty for
               each party’s mental health therapy.

           Report and Recommendation of the Guardian ad
           litem, 2/4/16, at 8.

     The twenty-three day custody trial commenced on May 20, 2016,
     and concluded on November 18, 2016. The parties presented 24
     witnesses and offered 216 exhibits, 193 of which were admitted
     by the court, in addition to the exhibits from the PFA trial that
     were incorporated into the custody trial.

     On December 12, 2016, Judge Clark entered her findings of fact
     on the record and entered an order granting Father sole legal and
     sole physical custody.

S.B. v. S.S., 74 WDA 2017, at *1-4 (Pa. Super. Oct. 20, 2017) (unpublished

memorandum). On December 14, 2016, the trial court entered an amended

custody order, but did not materially alter its award of custody in any way.

Mother filed a timely appeal; this Court affirmed the trial court’s order on

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J-A26041-18


October 20, 2017.1       Id. Mother filed a petition for allowance of appeal in the

Pennsylvania Supreme Court, which was denied.

       On February 1, 2018, before the [Pennsylvania] Supreme Court
       denied allowance of appeal, a press release [was] issued
       announcing an upcoming press conference regarding this case.

       On February 7, 2018, Mother’s attorney, Richard Ducote, Esquire
       held a press conference concerning this case and Mother’s obvious
       disagreement with the court’s findings and orders.

       Although the Child is not named, Mr. Ducote identifies Mother by
       name and included a reproduction of the child’s in-court testimony
       and forensic interview.

       The press conference, which was held on YouTube, contains a link
       to a DropBox folder containing pleadings from the case[,] a
       transcript of the Child’s testimony and a copy of the Child’s
       forensic interview at Children’s Hospital Child Advocacy Clinic.
       Mother’s name is contained within these documents. The child’s
       name is redacted except for the first letter of his first name[,] ‘F.’

       On February 28, 2018, an article about the case appeared in the
       Pittsburgh City Paper.      The article began with the graphic
       testimony of alleged sexual abuse by Father against the Child and
       contained the age of the child and the name of the Child’s best
       friend at the time the testimony was given.

Trial Court Opinion, 7/6/18, at 5 (numbered bullets omitted).

       On April 27, 2018, Father presented a motion for sanctions and other

relief requesting that, based on the conduct of Mother and her attorneys, they

be “immediately enjoined from discussing this case publicly in any forum” and


____________________________________________


1 While Mother’s appeal was pending before this Court, Mother filed an
“Application for the Exercise of King’s Bench Power or Extraordinary
Jurisdiction” in the Pennsylvania Supreme Court on February 1, 2017. Our
Supreme Court denied Mother’s application by per curiam order on February
24, 2017.

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J-A26041-18


“that Mother and her counsel be ordered to remove all documents relating in

any way to this case from public access. . . .” Motion for Sanctions and Other

Relief, 4/27/18, at ¶ 34-35. That same day, the trial court held an on-the-

record hearing on Father’s motion. At the conclusion of the hearing, the trial

court denied Father’s motion for sanctions, but granted his request to prohibit

Mother and her attorneys from speaking publicly about the case in any way

that could cause Child to be identified, entering the following order, in relevant

part:

        1. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall
           NOT direct or encourage third parties to speak publicly or
           communicate about this case including, but not limited to, print
           and broadcast media, on-line or web-based communications,
           or inviting the public to view existing on-line or web-based
           publications.

        2. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre may
           provide public testimony in the State House and/or Senate and
           in the United States Congress and Senate about parental
           alienation, sexual abuse of children in general or as it relates
           to this case. However, in providing such testimony, they shall
           NOT disclose any information that would identify or tend to
           identify the Child. [Mother] shall NOT publically state her
           name, the name of the Child, or [Father’s] name. Attorney
           Ducote and Attorney McIntyre shall NOT publicly refer to the
           [Mother], the Child, or the [Father] by name or in any manner
           that would tend to identify the aforementioned parties.

        3. [Mother] and Counsel shall remove information about this case,
           which has been publically posted by [Mother] or Counsel,
           including but not limited to, the press release, the press
           conference on the YouTube site, the DropBox and its contents,
           and other online information accessible to the public, within
           twenty-four (24) hours.          [Mother] and Counsel shall
           download or place the aforementioned information onto a
           thumb drive, which shall be filed with this court.


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J-A26041-18


      The Oral Motion to Stay This Order of Court, made on behalf of
      [Mother] is denied.

      This Order does not prohibit any party or counsel from publicly
      speaking or expressing an opinion about the Judge, including
      disclosing the entry of this Order of Court, after the information
      has been removed as set forth above. However, such expression
      shall NOT contain the name of the Child or other information,
      which would tend to identify the Child.

Findings of Fact and Order of Court, 5/1/18, at 4-5 (emphasis in original).

This timely appeal followed. Both Mother and the trial court have complied

with Pennsylvania Rule of Appellate Procedure 1925.

      On appeal, Mother presents a single issue for our review and

consideration:

      Did the trial court legally err and abuse its discretion in granting
      [Father’s] Motion for Sanctions and Other Relief, in part, and
      entering a gag order constituting a content-based restriction on
      speech, prohibiting [Mother], Richard Ducote, Esq., and Victoria
      McIntyre, Esq. from speaking publicly or communicating about
      this case and requiring them to remove information related to the
      case posted online, in violation of their rights under the First and
      Fourteenth Amendments to the United States Constitution and
      Article 1, [Section] 7 of the Pennsylvania Constitution, and without
      any legal or factual justification in support?

Mother’s Brief at 3.

      Mother contends that the gag order violates her free speech rights

contained in the First Amendment of the United States Constitution and Article

I, Section 7 of the Pennsylvania Constitution.   She advances a four-pronged

attack on the court’s order, asserting that the order: (1) represents an

impermissible prior restraint on protected speech; (2) represents an unlawful

content-based restriction on protected speech; (3) imposes an impermissible


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J-A26041-18



blanket prohibition on any remark regarding the case without demonstrating

how it advances a compelling governmental interest; and (4) imposes an

unconstitutionally vague and overbroad restriction on free speech.

        The trial court concluded that an order prohibiting Mother and her

attorneys from speaking or communicating publicly about this case was

necessary to protect Child’s privacy and shield him from “harmful public

scrutiny.” Trial Court Opinion, 7/6/18, at 3-4. In issuing its order, the trial

court considered whether the conduct and speech of Mother and her

attorneys: (1) tended to identify Child; (2) was harmful to Child; and (3)

whether Child’s right “to be free from undue scrutiny, ridicule, and scorn”

outweighed the right of Mother and her attorneys to engage in public

discourse. Id. at 4. Specifically, the trial court noted that Child attends a

school “where teachers, parents and students are likely to know each other

and that the identification of a parent would naturally identify the child.” Id.

at 6.   The trial court found that any disclosure and release of Mother’s or

Father’s name in the media could result in the identification of Child, and thus,

the trial court concluded that good cause existed to restrict the speech of

Mother and her attorneys. Id.

        Mother’s claim implicates a fundamental right: the free exercise of

speech as guaranteed by the First Amendment to the Constitution of the

United States and Article I, Section 7 of the Pennsylvania Constitution. We

first set forth our scope and standard of review, noting that the United States

Supreme Court has stated that in reviewing First Amendment cases, appellate

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J-A26041-18



courts must conduct a review of the entire record. See Gentile v. State Bar

of Nevada, 501 U.S. 1030 (1991); In re Condemnation by Urban

Redevelopment Auth. Of Pittsburgh, 913 A.2d 178, 183 (Pa. 2006). As

the claim presented involves a pure question of law, our scope of review is

plenary and our standard of review is de novo.    Id.

     The First Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech.”        U.S. C ONST. amend. I.        The First

Amendment’s protection is made applicable to the states through the

Fourteenth Amendment. Id.

     When the government restricts expression due to the content of
     the message being conveyed, such restrictions are allowable only
     if they pass the strict scrutiny test. That test is an onerous one,
     and demands that the government show that the restrictions are
     “(1) narrowly tailored to serve (2) a compelling state interest.”
     Republican Party of Minnesota v. White, 536 U.S. 765, 775
     (2002).

     Yet, strict scrutiny is not applied simply because a plaintiff raises
     a claim that its freedom of expression has been curtailed. The
     High Court has recognized that where the governmental
     regulation applies a content-neutral regulation to expressive
     conduct, strict scrutiny is an inappropriate test to apply. Texas
     v. Johnson, 491 U.S. 397 (1989). The test which is applied to
     such content-neutral regulations was first enunciated in the
     seminal case of United States v. O’Brien, 391 U.S. 367 (1968).
     In O’Brien, the defendant was convicted of violating a statute
     which criminalized the act of destroying or mutilating a draft card.
     The defendant had burned his Selective Service registration
     certificate in order to convince people to adopt his anti-war beliefs.
     The defendant argued that the conviction could not stand as the
     statute criminalizing the destruction of draft cards ran afoul of the
     First Amendment.

     In analyzing this claim, the O’Brien Court stated that where
     expressive and nonexpressive conduct are combined in the same

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J-A26041-18


     activity, “a sufficiently important governmental interest in
     regulating the nonspeech element can justify incidental limitations
     on First Amendment freedoms.” Id. at 376. The O’Brien Court
     decreed that such “government regulation is sufficiently justified”
     if:

          1) Promulgation of the regulation is within the constitutional
             power of the government;

          2) The regulation furthers an important or substantial
             governmental interest;

          3) The governmental interest is unrelated            to   the
             suppression of free expression; and

          4) The incidental restriction on First Amendment freedoms
             is no greater than essential to the furtherance of that
             interest.

     Id. at 377. The O’Brien Court found that all four prongs were
     met and thus denied the defendant relief.

In re Condemnation by Urban Redevelopment Auth. of Pittsburgh, 913

A.2d at 183–84 (parallel citations omitted); see also Clark v. Community

for Creative Non–Violence, 468 U.S. 288 (1984) (observing that content-

neutral restrictions on speech are only valid if they are justified without

reference to the content of the regulated speech, are narrowly tailored to

serve a significant governmental interest unrelated to speech, and leave open

ample alternative channels for communication of the information).

     “The principle inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner cases in particular, is whether the

government has adopted a regulation of speech because of disagreement with

the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989).    The controlling factor in the determination is the government’s

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J-A26041-18



purpose in enacting the restriction. Id. A purpose that has no relation to the

content of the speech is deemed neutral, even if the restriction affects some

speakers or messages and not others. See id.; see also 122 A.L.R. 5th 593,

at Section 2 (“A regulation is content neutral when it may be justified without

reference to the content of the regulated speech.”).

       Instantly, our careful review of the gag order reveals that the order’s

proscription is limited to “any information that would identify or tend to

identify the Child.” Findings of Fact and Order of Court, 5/1/18, at 5. As

written, therefore, the order is not concerned with the content of Mother and

her attorneys’ speech, but instead, with the target of the speech, namely,

Child, a juvenile whose identity and privacy the court seeks to protect. It is

the identification of Child that triggers the application of the gag order.

Accordingly, we reject Mother’s claim that the order is a content-based

restriction on speech and conclude, rather, that the order is content-neutral.

       We also find that the order is narrowly tailored to serve a significant

governmental interest. “Broadly speaking, the state, acting pursuant to its

parens patriae power, has a compelling interest in safeguarding children from

various kinds of physical and emotional harm and promoting their wellbeing.”2

D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) (citing Hiller v. Fausey, 904 A.2d

875, 886 (Pa. 2006) (“The compelling state interest at issue in this case is the
____________________________________________


2 “Parens patriae, literally ‘parent of the country,’ refers . . . to the role of the
state as sovereign and guardian of persons under a legal disability to act for
themselves such as juveniles, the insane, or the unknown.” West Virginia
v. Chas. Pfizer & Co., 440 F.2d 1079, 1089 (2d Cir. 1971).

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J-A26041-18



state’s longstanding interest in protecting the health and emotional welfare of

children.”)). Thus, “[t]he power of the parent, even when linked to a free

exercise claim, may be subject to limitation . . . if it appears that parental

decisions will jeopardize the health or safety of the child, or have a potential

for significant social burdens.” Shepp v. Shepp, 906 A.2d 1165, 1173 (Pa.

2006) (citing Wisconsin v. Yoder, 406 U.S. 205, 233–34 (1972)).            “The

state’s compelling interest to protect a child in any given case, however, is

not triggered unless a court finds that a parent’s speech is causing or will

cause harm to a child’s welfare.” Id.

      Here, our review of the entire voluminous record reveals that this case

implicates grave issues, not the least of which is Mother’s unsubstantiated but

unwavering allegation of sex abuse by Father, which warrants confidentiality

of the proceedings. Child has suffered emotional trauma because of the strife

between the parents. See generally Trial Court Opinion & Findings of Fact,

1/31/17; N.T., 5/20/16; N.T., 5/26/16; N.T., 8/26/16; N.T., 9/2/16; N.T.,

10/6/16; N.T., 11/18/16. The perpetuation and magnification of that strife in

the media – particularly the internet – would exacerbate the harm to Child

and constitute an egregious invasion of Child’s privacy.    The aim of the gag

order is, as noted, to promote the best interests of Child by protecting his

privacy and concealing his identity. The government’s interest in preventing

further emotional harm to Child is substantial.

      Likewise, we find that the order leaves ample alternative channels for

Mother and her attorneys to provide public testimony pertaining to the

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J-A26041-18



sensitive issues in this case. The gag order does not prevent Mother and her

attorneys from speaking publicly about child abuse and parental alienation

generally. The order merely limits Mother and her attorneys from publishing

or communicating anything that would tend to identify and harm Child.

Additionally, the order does not bar the media from any of the proceedings in

the case, nor does it prohibit the media from reporting on the matter. Whether

any members of the media have deemed the matter newsworthy is not clear

from the record.   However, we note that a gag order on parties and their

attorneys has been cited as an accepted less restrictive alternative to

restrictions imposed directly on the media. See Neb. Press Ass’n v. Stuart,

427 U.S. 539, 564 (1976).

      Lastly, we conclude that Mother has failed to establish that the order is

unconstitutionally vague or broad.         Mother claims that the gag order

“represents a total restraint upon speech of any kind.” Mother’s Brief at 22.

Mother asserts that the gag order “muzzles [Mother’s] voices [sic] from not

only the nationwide problem of family courts failing to protect sexually abused

children in custody cases, but also from discussing the details of this case in

light of other relevant important discourse.” Id. at 25. Mother suggests that

the gag order “acts to chill others” in similar positions “for fear of similar

constitutional and financial harms.” Id.

      To the contrary, we find that the order is clear and narrowly tailored.

As noted above, the order states:




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J-A26041-18


      4. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre shall
         NOT direct or encourage third parties to speak publicly or
         communicate about this case including, but not limited to, print
         and broadcast media, on-line or web-based communications,
         or inviting the public to view existing on-line or web-based
         publications.

      5. [Mother]; Richard Ducote, Esquire; and Victoria McIntyre may
         provide public testimony in the State House and/or Senate and
         in the United States Congress and Senate about parental
         alienation, sexual abuse of children in general or as it relates
         to this case. However, in providing such testimony, they shall
         NOT disclose any information that would identify or tend
         to identify the Child. [Mother] shall NOT publically state her
         name, the name of the Child, or [Father’s] name. Attorney
         Ducote and Attorney McIntyre shall NOT publicly refer to the
         [Mother], the Child, or the [Father] by name or in any manner
         that would tend to identify the aforementioned parties.

                              *     *         *

Findings of Fact and Order of Court, 5/1/18, at 4-5 (emphasis added).

      An unconstitutionally vague law is one that fails to give a person of

ordinary intelligence fair notice that his or her contemplated conduct is

forbidden by law and encourages arbitrary and erratic arrests and convictions.

Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972). Here, we

are confident that a person of ordinary intelligence would read the order to

forbid exactly what Mother wanted to do: take her case to the media. The

proscription in the order is limited to a specific, small group of persons

intimately involved in one case and makes clear precisely what Mother and

her attorneys are prohibited from discussing, i.e., anything that might identify

and harm Child.       Accordingly, Mother’s assertion that the order is

unconstitutionally vague and overbroad lacks merit.



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J-A26041-18



       Viewing the gag order in light of the above-referenced intermediate test

applicable to content-neutral, governmental restrictions on speech, we

determine that the order is constitutionally permissible. The order is narrowly-

tailored to advance a substantial government interest at stake, i.e.,

safeguarding children from various kinds of physical and emotional harm and

promoting their wellbeing, while remaining open to other channels of

communication available to Mother and her attorneys. Accordingly, we reject

Mother’s constitutional challenge to the gag order in this case.3

       Order affirmed.




____________________________________________


3  We further remind Attorney Ducote and Attorney McIntyre of their ethical
obligations under the Pennsylvania Rules of Professional Conduct and note
that all violators of the Rules are subject to the possibility of disciplinary
action. An attorney is an officer of the court, who agrees to abide by certain
ethical rules before being permitted to practice law. As the Preamble to the
Pennsylvania Rules of Professional Conduct provides, “A lawyer, as a member
of the legal profession, is a representative of clients, an officer of the legal
system and a public citizen having a special responsibility for the quality of
justice.” As a part of this “special responsibility,” an attorney must comport
him or herself in a manner that ensures fairness and justice to all parties to
litigation, and may include some degree of restraint in revealing the details of
a case to the general public. See also Pa. Rule of Professional Conduct 8.4(c)
(“It is professional misconduct for a lawyer to engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.”).



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J-A26041-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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