The facts in today’s precedential decision in Crego v. Gonzalez illustrate just how dangerous life has become for young children. 2026 Pa. Super 86. The case brings us findings of drug use, drug distribution and domestic violence in a world where both parents operate with several family relationships and neither ever lived with their five year old son in a single united household. We are used to cases where family life has slowly or abruptly disintegrated. In this case, a “family” never existed. You can read 27 pages of Judge Panella’s panel opinion and take comfort in the fact that your custody dispute pales in comparison with this tragic case.
Then we advance to page 28 and the “right” to tell the world about your sufferings as a parent. The trial courts grapple with this acrimony and enter orders restraining social media and other communications because they understand that verbal missiles (missives?) do collateral damage to the children involved. Parents respond by invoking their rights under the 1st Amendment.
In this case the trial court’s order said:
1. [Both parents], and their respective counsel, if any, shall NOT speak publicly or communicate about this case including, but not limited to, print or broadcast media, online or web-based communications, or inviting the public to view existing online or web-based publications.
2. Father, Mother, and their respective counsel, if any, shall NOT direct or encourage third parties to
[engage in conduct having the effect of violating the prohibition contained in the above paragraph]
3. Father, Mother, and their respective counsel shall remove information about this case, which may have been publicly posted by Father, Mother, and their respective counsel, if any, included but not limited to any press release, any press conference, any Drop Box information, and any other online information including Facebook, Instagram, Tik Tok, Twitter/X or similar social media accessible to the public within forty-eight (48) hours of the docketing of this order. Father, Mother, and their respective counsel shall place the download or place the aforementioned information on a thumb drive which shall be filed with the [Court].
The court adds a paragraph noting the first three are intended to shield the privacy of the child and protect his psychological well-being.
In a 2020 case the Pennsylvania Supreme Court has held:
“[T]he First Amendment precludes the government from restricting expression due to its message, ideas, subject matter, or content. One’s constitutional right to free speech, however, while fundamental, is not absolute. Freedom of speech does not comprehend the right to speak on any subject at any time. Instead, First Amendment freedoms must be applied in light of the special characteristics of the relevant environment.”
S.B. v. S.S., 243 A.3d 90, 104 (Pa. 2020).
The decision today should center on whether the restriction imposed on custody litigants is intended primarily to muzzle expression of public policy disputes or dissent from the judicial management of the case. The Father in this case appealed stating that the record showed no present risk to the child from these forms of communication. The appellate opinion notes that Mother agrees with Father on this topic.
Again, in a precedential decision, the Superior Court reverses the trial court order because “the trial court in this case did not make any specific factual findings that Father’s social media posts had harmed, or would imminently harm, [the child]. Even if the court had made those findings, our review of the record reveals no articulate, specific evidence to support the contention that Father’s at-issue speech harmed or would imminently harm [the child]. Therefore, the state’s interest in restraining Father’s speech was never triggered and the restriction cannot further an important governmental interest. See S.B., 243 A.3d at 108-10.”
In a curious twist the appellate court compliments the trial court on its efforts but finds the effort does not meet constitutional muster. The gag order aspect of the ruling is vacated.
The final words are kind of critical. “Final custody order affirmed. Gag order reversed. Jurisdiction relinquished. Judgment Entered.” We read that as no remand to consider the issue of specific harm to the child. In a word: “Forget trying to gag these two or their attorneys, but nice try.”
If we read those last words correctly, the message of this precedential case seems to be: courts can try to muzzle custody litigants who insist the world must know their pain but don’t expect those orders to be sustained on appeal. The takeaway appears to be that courts need to see palpable damage to the child before restraints on speech may be imposed. The word “imminent” is used but, candidly, people don’t give others “notice” before they publish their electronic “opinions.”
The child in this case will be six years old this coming month. That may be young to have damage inflicted by social media. But this observer would not be surprised to learn that the experience of reading Dr. Seuss or Hans Christian Andersen will soon meet with competition from Facebook and Twitter as substitutes. Now, kids can discover that their Father calls their Mother An Ugly Ducking (Andersen) and Mom calls Dad The Little Prince. (Antoine de Saint-Exupéry). Not the learning experience of the past for certain, but some suggest that any form of reading is enlightening,
The view that S.B. v. S.S is controlling presents its own challenges. That case was an appeal by a parent and her lawyers who represented. The attorneys are officers of the court and have rights and responsibilities to monitor and challenge perceived failings in the judicial system. In Grego v. Gonzalez, we have two parents imbued with special rights conferred upon them by reason of their responsibilities as parents. See Stanley v. Illinois 405 U.S. 645 (1972). Whether through counsel or on a pro se basis, they have rights to bring issues related to the management of their children to Pennsylvania’s courts. In S.B. v. S.S the restriction on speech was upheld as it related to the attorneys. The parents were not parties to the appeal. The policy question remains whether it is unfair to impose upon parents the responsibility to shield their child from self published screeds about the inadequacies and failings of the other parent? In Post v. Mendel, the Supreme Court of Pennsylvania drew that distinction between two warring trial lawyers. The ruling in that case was that a judicial filing reciting alleged heinous conduct has an absolute privilege. But if you put those same allegations in correspondence (even to a judge) you do so at your peril and without privilege. 507 A.2d 351 (Pa. 1985).
We live in a day when every parent and many children have a figurative printing press in their pocket. The damage inflicted on children when their parents broadcast to the world the failings of the other parent should be self-evident. Publications about the inadequacies of the judiciary are not really the concern of children and merit first amendment protection. But trashing a fellow parent is not the free civil discourse which the founders sought to protect in 1789. Moreover, society has no right to intervene in the affairs of a mis-managed family. Only the judiciary and child protective agencies are vested with that power. That is where the allegations should be addressed rather than circulated throughout the cosmos using electronic means.
Here it is: J-A04004-26o – 106763165356247349.pdf