Blog battle becomes free speech case
08:25 AM EST on Sunday, January 13, 2008
The Providence Journal / Sandor Bodo
PROVIDENCE — The divorce and custody case involving children “Sara Doe” and “Mary Doe” might have remained just another of the bitter battles that play out in Family Court, deeply personal and unnoticed by the public.
But a retired minister began a blog that blasted the state Department of Children, Youth and Families and others involved in the case, saying they’d used a “bogus theory” to take a mother’s two daughters from her and to send one of the sisters to live with the father — after the father had been accused of sexually abusing the girl.
At DCYF’s request, a Family Court judge ordered the state agency to “advise” the Rev. Anne Grant to stop publishing the blog “as it pertains” to the two children. While the blog used fake names for the girls, DCYF said the blog included the children’s photographs, diary entries and medical information, and the site repeated the sexual abuse claim that a DCYF hearing officer had deemed “unfounded.”
Now, Ms. Grant — who heads the Parenting Project based at the Mathewson Street United Methodist Church in Providence — is asking the state Supreme Court to overrule Family Court Judge John A. Mutter, saying his order violates her constitutional rights to due process and freedom of speech.
And so, the case is emerging into a broader legal battle, which addresses both the right to free speech on the Internet and the privacy rights of children in Family Court. Each side says it is trying to protect the children.
“There is no question the Internet and blogging are the new frontier in free speech law,” said Rodney A. Smolla, a First Amendment scholar and dean of the law school at Washington and Lee University in Lexington, Va. “One obvious reason is the kind of statement that used to be made in backyard gossip or around the water cooler can now be spread around the world. I think the courts are in the midst of an ongoing effort to translate traditional free-speech doctrines into this new arena.”
Different First Amendment standards have always applied when cases involve children, Smolla said. Courts are likely to uphold restraints aimed at protecting the identity and “significant privacy interests” of children, he said. But, he said, “That doesn’t mean you can ban all commentary on cases involving children.”
Smolla said this case might hinge on the wording of Mutter’s Aug. 17 decree, which said: “DCYF, as temporary custodian of the children, is to advise Anne Grant, author of www.custodyscam.blogspot.com, to remove any and all written and pictorial information pertaining to the children in the above matter, from the inception of publication to the present and henceforth, and to cease publication of the blog as it pertains to these children. That mother and father are ordered to facilitate cooperation in this process.”
“In this case,” Smolla said, “the soft spot is the word ‘pertaining.’ It seems broad and loose, and I can imagine an appellate court instructing a lower court to narrow the scope of the restraint.”
Thomas R. Bender, a Providence lawyer representing Ms. Grant, said she has removed all information about the case from the blog, and in the future she will not publish any photos or information that would identify the children. “Ms. Grant agrees that the blog’s content must preserve the privacy of the involved mother, father and children, and has been closed down to amend it for that purpose,” he wrote in a legal memo.
But Mutter’s order could prohibit Ms. Grant from publishing a much broader range of information and opinion, Bender said. So he is asking the state’s high court to overturn that part of the order.
“At the ‘core of the protection afforded by the First Amendment’ is the discussion of public issues,” Bender wrote, quoting from U.S. Supreme Court opinions. “The operation of the court system, obviously, ‘is a matter of utmost public concern,’ and ‘one of the demands of a democratic society is that the public should know what goes on in courts’ in order to judge the fairness and justice of their operation.”
The nation’s high court has recognized that, with chat rooms allowing anyone to become a town crier, the Internet is the “model for speech that the framers embraced,” Bender wrote. So, he said, “Governmental restrictions on core political speech over the Internet are entitled to ‘exacting scrutiny’ and upheld only where they are ‘narrowly tailored to serve an overriding state interest.’ ”
Ms. Grant thinks the central element of the case is the reliance on parental alienation syndrome, a theory which the child psychologist Richard A. Gardner developed “to describe his clinical impressions of cases he believed involved false allegations of child abuse,” Bender wrote. “To say that it is a controversial theory is an understatement.”
Ms. Grant said that from cases she has followed in Rhode Island and across the country, “alleged sexual molesters are able to have significant legal influence” by citing the “so-called parental alienation syndrome, which has been discredited.” She said, “They are abusing the system designed to protect children.”
Ms. Grant wants to use her blog to weigh in on that controversial issue, “focusing on the context of a specific case before the Family Court,” Bender wrote. But Mutter’s “injunction attempts to restrain her from doing so.”
In a Jan. 3 legal memo, the Department of Children, Youth and Families urged the Supreme Court to reject Ms. Grant’s requests.
“Nothing in the language of the order mandates Anne Grant to do anything,” DCYF senior legal counsel Martha J. Kelly wrote. In fact, the mother’s lawyer had argued it was DCYF’s responsibility, as temporary custodian, “to oversee the cessation of the blog.”
DCYF emphasized that the case is “protected by several levels of confidentiality.” In general, DCYF matters are “protected by confidentiality” under state law, and in this case, Mutter took the additional step of issuing a “gag order” on June 5, Kelly wrote. Also, the blog contained confidential health information that is “protected by state and federal law,” she said.
Despite these safeguards, the mother was, according to motions filed by the father, “facilitating the publication of custodyscam.blogspot.com that posted the children’s personal information, including a description of the residence, photographs of them (including one of a naked 3-year-old in a bath), unsubstantiated information regarding the respondent father and these children, medical reports, copies of pleadings, and assertions relating to the ongoing litigation and court rulings,” Kelly wrote.
Although the blog used fake names, the children were “easily identifiable to anyone with computer access,” Kelly wrote.
Ms. Grant said the 3-year-old girl was surrounded by toys in the bathtub and “there was absolutely nothing prurient about that photo.”
Mutter issued his decree on Aug. 17, and “as a courtesy,” DCYF sent Ms. Grant a redacted version of the decree along with an “explanatory cover letter,” which said: “If the information outlined in the order is not removed from the Web site immediately, the department will be forced to bring this matter back before the Family Court. I thank you in advance for your anticipated cooperation with this court order.”
In her legal memo, Kelly told the Supreme Court, “This letter at no time threatened the Reverend Grant with any legal action. For the Reverend Grant to argue a clear implication of the cover letter is at best a misreading of it. Further, to state the obvious, the order speaks for itself, and at no time did Reverend Grant seek clarification of it.”
Kelly said the blog continued for a while after the judge issued his decree, and on Sept. 5, Ms. Grant’s Parenting Project sent an e-mail to the school system of one of the girls, “suggesting the child was in danger and slandering the father and directing” administrators and teachers to the blog. “This action amounts, at best, to a continuing flouting of the court order and confidentiality statutes by the respondent mother, and at worst, [Ms. Grant’s] continuing complete disregard for this child’s privacy and best interests,” Kelly wrote.
On Sept. 7, the DCYF filed a motion for review in Family Court and the father filed a motion to hold the mother in contempt, calling Ms. Grant as a witness. Based on testimony from Ms. Grant and the mother, “what was clear to the Family Court is that the parties suffering the most harm are the children,” Kelly wrote. “The Family Court thus determined that the existence of the blog violated the family’s privacy, created significant risk of harm to the children, and was not in their best interests.”
In going to the Supreme Court, Ms. Grant is seeking “a public debate on confidential matters entrusted to the Family Court for determination,” Kelly wrote. “The department will not address these issues, as it is clear that [Ms. Grant] is still seeking a forum to air her views. The children’s privacy rights [continue] to suffer with [Ms. Grant’s] seeking to publish her blog and violate the confidentiality protection in these cases.”
Bender replied in a legal brief filed Friday, saying the “DCYF’s representation to this court that the ‘letter at no time threatened the Reverend Grant with any legal action,’ even viewed in the kindest light, defies credulity. The letter was plainly designed to convince Grant she would face legal consequences in the nature of contempt proceedings if she continued to publish the Web blog.”
“She should not be subject to the specter of legal proceedings for what she might post,” Bender wrote. “Her exercise of core political speech must not be threatened or burdened by an order that can only serve that purpose.”
The Supreme Court, on Thursday, is to consider whether to review the case or vacate the order.