Silenced by the Bench – Are Washington Family Law Speech Restrictions Going Too Far?

The freedom of speech is a fundamental right that we take for granted on a day-to-day basis. Recently, national media has been highlighting claims for freedom of speech. But, what happens when a Judge orders people involved in a case to be silent and threatens punishment if they do speak? Is it illegal and a violation of civil rights to order citizens NOT to speak? It is a bit jarring to be ordered NOT to speak and be threatened for exercising your free speech constitutional rights in the United States.

The concept of freedom of speech is deeply rooted in constitutional law and has been the cornerstone of numerous landmark cases that define its limits and protections. Brandenburg v. Ohio (1969) replaced the earlier "clear and present danger" test and set a higher bar for government restrictions on speech, ensuring robust protection for even controversial or offensive expression unless it poses an immediate threat. New York Times Co. v. United States (1971) underscored the principle that the government bears a heavy burden of proving the necessity of restricting speech. Nebraska Press Association v. Stuart (1976) emphasized the importance of narrowly tailored and justified limitations on speech. Given legal precedents and the importance of upholding constitutional rights, family law practitioners and judges should develop a standard on limiting communications to reference and avoid issuing blanket orders on communication that appear to violate freedom of speech rights. Publishing a standard would provide transparency and the purpose behind communication restrictions, and bolster confidence in the judicial system by making the standard publicly available and open to edits.

1.      In court docket #888, page 14, paragraph c., in a King County Superior Court case, Judge Jason Poydras ordered that no information be shared with anyone outside of his court room.

What do you think? Is it clear what communications are limited in the above Judge’s order? Is it reasonable to expect parties to prevent the actions of all other third parties, parties which they may not even know? As a child matures, when is it appropriate to discuss legal matters with the child? Research show that it is not healthy to withhold all information about any legal matter from a child indefinitely into the future.

2.      In court docket #941, page 7-8, paragraph d., in a King County Superior Court case, Judge Jason Poydras ordered that no information be shared with anyone outside the parenting coordinator, the parties and their attorney, except to the Court and any professionals working with the family, to the extent necessary to carry out the Parenting Plan or other court orders and all parties shall seek the written consent of the parties before doing so. A finding of contempt and fees are threatened.

The above order raises legal and ethical questions, including whether such restrictions infringe upon the parties’ civil rights, particularly under established case law. Given that this second example: a) blocks healthy communication with family members, counselors, and friends—individuals who provide critical support for parents navigating difficult circumstances— b) is overly broad, c) is not specific, d) requires mutual written consent before speaking and e) threatens penalties for free speech, it could be interpreted as a prior restraint on speech, broadly prohibiting parents from sharing or discussing their own experiences, even with personal support networks. This raises concerns about whether such opacity undermines public trust in family court processes. While courts may limit speech to protect children’s welfare, such limits must be specific, narrowly tailored, and not infringe on First Amendment rights. Troxel v. Granville (530 U.S. 57, 2000) for parental rights or Nebraska Press Ass’n v. Stuart (427 U.S. 539, 1976) offer ideas to consider when ordering speech restrictions.

Is there a better way for courts to state concerns about behavior that may harm a child than telling parents and third parties that they cannot speak? Could courts share research that specific types of communications may be harmful to a child at specific points in their development rather than threatening penalties for any discussion of a case? Is there a better alternative to judges blocking healthy communication with family, counselors and friends that are supporting parenting going through a very difficult time?

Instead of using blanket bans, such as example 2, research suggests that Courts consider more narrowly tailored restrictions that prohibit only harmful types of communication (e.g., romantic speculation, personal disputes), educate parents on the psychological impact of certain conversations during key developmental stages and encourage structured co-parenting communication through tools like parenting apps or mediation.

Who monitors the actions of judges in King County to ensure adherence to constitutional principles, such as freedom of speech? What guidance is there to citizens, attorneys and judges alike so that court orders are easily understood and not overly broad? How are citizens’ rights to freedom of speech safeguarded when judges impose broad and vague restrictions? How is feedback given Judge Jason Poydras in this case so that his overly broad communication restrictions do not continue to infringe on First Amendment rights and do not threaten parents? Families in the turmoil of divorce are struggling a lot; they do not need added challenges in trying to comply with overly broad court orders. Courts should not infringe on First Amendment rights and force people to struggle silently, without getting emotional and practical support talking with others.

Washington courts should consider adopting standardized, evidence-based guidelines for communication restrictions that respect both the developmental needs of children and the constitutional rights of parents. These should be transparent, narrowly tailored, and subject to clear judicial review. Artificial intelligence could be used to review all Parenting Plans currently active in Washington state and updates could be made to remove overly broad language.

Going forward, any attempt by a trial judge – including Judge Poydras – to issue a very broad gag order should be challenged by attorneys and face reversal on appeal, given the clear precedents of Suggs, Meredith, and Vaughan/Caylor. Washington courts have made it clear that parents do not forfeit their free speech rights in custody disputes, and any limitation must be precise and justified by unprotected speech or serious harm.

Please leave your comments at the end of this article. Your comments may help produce a helpful standard.