Appeals Court Sets Aside Order Barring Parents Who Gave Up Child from Talking About Child’s Medical Condition

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.