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Thursday, September 23, 2021

Supreme Court Writ in Case Involving Family Bridges May Break 1st Amendment Ground

(Part of an order by Judge Kim Berkeley Clark)


A writ which waits for US Supreme Court acceptance or denial seeks to challenge the near unfettered ability of judges in family law cases to gag litigants. 

The writ filed by Richard Ducote, who has been involved in numerous high profile cases, cannot even identify his client by name, rather using SS, but says his client is not even allowed to say their own name publicly.

Petitioners Richard Ducote and Victoria McIntyre are attorneys representing Petitioner S.S., the mother of a now 14-year-old son, in a Pennsylvania child custody case. After S.S. lost custody to the father, Respondent S.B., and the ruling was affirmed on appeal, at S.B.’s urging the trial court issued a “gag order” against all three Petitioners forbidding them 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”; and “direct or encourage third parties to speak publicly about this case including, but not limited to, print and broadcast media, on-line or web-based communications…”

The writ continues.  

S.B.’s counsel sought a gag order on Petitioners, plus $200,000 in sanctions, and $10,000 for each future violation of the proposed order. No evidence whatsoever concerning the child was presented at the hearing which resulted in the gag order. It is important to note that Petitioners have never publicly stated F’s name or otherwise publicly identified him. On April 19, 2018, over S.S.’s strenuous constitutional objections, Judge Clark first signed an interim gag order preventing all parties and their counsel from publicly speaking or communicating about the case. App. 80a. However, on April 27, 2018, Judge Clark entered a final gag order prohibiting only S.S., Mr. Ducote, and Ms. McIntyre—and not S.B., his counsel, or S.S.’s former trial counsel who presented the child’s testimony—from speaking about this case in any manner:

Ducote's writ of ceteriorari is below.

5-19-2021 Final Cert Petition by mikekvolpe

In the writ, Ducote states that the unusual action, taken by Judge Kim Berkeley Clark, the President Judge of the Fifth Judicial District of Pennsylvania, was in response to an article in the Pittsburgh City Times and a press conference which followed. Ducote continues in the writ. 

Petitioners, together with other professionals, parents, and a now grown child sharing common concerns and experiences, participated in a February 7, 2018, Pittsburgh press conference discussing child abuse victims and the courts’ failure to protect them.1 Mr. Ducote mentioned only S.S. by name, as a mother who lost custody of her un-named son, despite his testimony, to his un-named father. 

Independent of the conference, on February 28, 2018, the PITTSBURGH CITY PAPER published Parental Inequity: Children’s Advocates Say Family Courts Unfairly Favor Fathers, Even When They’re the Abusers (App. 114a). The article, which included comments from a Pennsylvania legislator and a George Washington University law school professor, highlighted proposed legal reforms to address custody cases with abuse allegations. F’s graphic testimony was anonymously quoted to illustrate the alarming nature of this problem. App. 114a.

Ducote alleged that this case involved the cover-up of child molestation. Here is what SS's son allegedly said during a judge's questioning of the boy.

Well, sometimes he would lay on top of me. He would like pull my pajamas down. He had these like shorty shorts that he would go running in. They didn’t need underwear. Well, the first thing is that I was—I acted asleep, but I was really awake when it all happened. He would stick his penis in my butt crack. Into what I call my poop hole. He would do that many times. When under my body he would be squeezing my penis. Sometimes I get really angry with myself because I always say that I could have stopped him 

The Pittsburgh City Paper article suggested that the bogus label of "parental alienation" was used as a response to the sexual molestation allegations, a common use for the parental alienation scheme. 

(From the Pittsburgh City Paper)

"At the heart of the problems surrounding custody cases," the Pittsburgh City Paper article states, "is the concept of parental alienation syndrome....Ducote has worked on hundreds of cases and says abusive parents often claim parental alienation to refute abuse allegations. He says the child custody case he's currently working in is a clear example."

Family Bridges appears to be a part of the scheme to cover-up the abuse.  According to an order in the case, Family Bridges was used for reunification, "Following the completion of the Family Bridges workshop, and before returning home with , Father shall take on a vacation of no less than five days in duration. The Court expects that will apply what he has learned during the Family Bridges workshop to improve their interactions with his Father during and following their vacation."

Family Bridges has received a great deal of scrutiny; Randy Rand, its principle, has problems with his license and many former children who have gone through the program say it destroyed their childhoods. 

The Pennsylvania Supreme Court upheld the gag order. That opinion is below.

Penn Supreme Court Opinion on Gag Order by mikekvolpe on Scribd

Appellants contend that the Superior Court’s affirmance of the gag order violates their constitutional rights to free speech as the order constitutes “freewheeling censorship” that prohibits them indefinitely from speaking about the case in any manner, while imposing no restrictions on Father’s speech. Brief for Appellants at 9. Categorizing the gag order as both a content-based restriction and a prior restraint on speech, Appellants posit that the heightened constitutional standard of strict scrutiny must apply. They maintain that because there is no compelling state interest supporting the imposition of an indefinite and total restraint upon their speech, the gag order cannot stand. 

Relating to the claim that the gag order constitutes a content-based restriction on speech, Appellants’ position begins with the premise that content-based restrictions require the government to satisfy the strict scrutiny standard to pass constitutional muster. Brief for Appellant at 10 (citing Turner Broad. Sys. Inc. v. F.C.C., 512 U.S. 622, 642 (1994) (internal citation omitted) (holding that “[o]ur precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content”)). They contend that the gag order’s plain language constitutes a total prohibition against speaking publicly about the custody case in any manner, not only in a manner that identifies Child, as held by the Superior Court. 

In support of this contention, Appellants rely exclusively upon the following sentence in the order: “It is hereby ORDERED that [Mother]; Richard Ducote, Esquire; and Victoria McIntyre, Esquire shall NOT 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.” Trial Court Order, 4/27/2018, at 1. Ignoring the remaining text of the gag order, Appellants view the speech restriction as constituting a total ban on speech of a particular topic, i.e., Child’s custody proceeding, which, they argue, renders the regulation of speech content based. 

The US Supreme Court will decide later this month if it will accept the case. 

Post Script: 

Find the previous Family Bridges story here and go to the fundraiser. 

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