Stephanie L. v. Benjamin L.

• Decision Date: 31 August 1993
• Citation: 602 N.Y.S.2d 80,158 Misc.2d 665
• Parties: STEPHANIE L., Plaintiff, v. BENJAMIN L., Defendant.
• Court: New York Supreme Court

Page 80

602 N.Y.S.2d 80

158 Misc.2d 665

STEPHANIE L., Plaintiff, v. BENJAMIN L., Defendant.

Supreme Court, New York County,

IAS Part 11.

Aug. 31, 1993.

Philip Sherwood Greenhaus, New York City, for plaintiff.

Robert Projansky, New York City, for defendant.

LEWIS R. FRIEDMAN, Justice.

This motion by Wife, in the midst of her divorce action, seeks an order enjoining Husband from telling their ten-year-old daughter that Wife has life threatening renal cancer. It presents an important First Amendment issue which impacts on this court's power to act in the best interests of the child and which concerns a parent's right to resort to court to resolve inter-parental disputes over child rearing.

The parties, who were married in 1981, have one ten year old child Hannah. The parties separated in 1987; Wife has de facto custody of Hannah. Recently, Wife was diagnosed with metastasized renal cell carcinoma. Wife has sought treatment for her medical condition and surgery has been recommended. Additionally, Wife has consulted three specialists for advice on how to deal with Hannah. While all three have advised it is not yet the proper time to inform Hannah, one doctor has recommended that Wife begin to prepare Hannah psychologically. Husband recently informed Wife that he does not intend to tell Hannah about Wife's condition but, if Hannah asks him about it, he will tell her the truth.

Wife has concluded that it would be traumatic for Hannah to learn of her mother's medical condition at this time, and seeks an injunction from this court. In opposition, Husband contends that an injunction would impair his right to free speech and, therefore, the Court may not grant it.

First Amendment Concerns

Analysis starts with well established currently valid basic principles. The First Amendment and the state constitution generally bar injunctions against speech (Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357). Any injunction which operates as a prior restraint on expression bears a "heavy presumption" against its constitutional validity (Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577-78, 29 L.Ed.2d 1; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584). Nevertheless, "the protection even as to previous restraint is not absolutely unlimited" (Near v. Minnesota, supra, 283 U.S. at 716, 51 S.Ct. at 631). The Supreme Court has recognized certain extraordinary situations in which the government's interest in preventing grave harm outweighs the dangers inherent in limiting speech. (see, Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470; Near v. Minnesota, supra; cf., Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704). In the words of Justice Brandeis, "to justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced" (Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 648, 71 L.Ed. 1095). New York has followed an analysis similar to the Supreme Court's and reached a similar result. The Court of Appeals has noted that a content-based regulation that burdens speech requires that the proponent "demonstrate that it serves a compelling State interest and is narrowly tailored to achieve that purpose" (Children of Bedford v. Petromelis, 77 N.Y.2d 713, 725, 570 N.Y.S.2d 453, 573 N.E.2d 541; cf. Arkansas Writers' Project v. Ragland, 481 U.S. 221, 231, 107 S.Ct. 1722, 1728-29, 95 L.Ed.2d 209; Perry Educ Assn. v. Perry Local Educ. Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 954-55, 74 L.Ed.2d 794; Consolidated Edison v. Public Serv. Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2334-35, 65 L.Ed.2d 319; First Nat'l Bank v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707). Where a restriction on speech is "relatively narrow and will be defined and serves a significant state or public interest the infringement should be tolerated" (Pecoraro v. City of Buffalo, 112 Misc.2d 985, 988, 447 N.Y.S.2d 842).

Wife's argument here is that "the best interest of the child" is a compelling state interest that permits a narrowly drawn well-defined infringement of Husband's First Amendment rights.

There is a well established body of constitutional law which holds that the court may limit that "speech" which is made available to children by persons other than their parents. "The power of the State to control the conduct of children reaches beyond the scope of its authority over adults" (Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645; Ginsberg v. New York, 390 U.S. 629, 638, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195; cf. Emerson, Toward a General Theory of the First Amendment, 72 Yale LJ 877, 938-9 ["regulations of communications addressed to [children] need not conform to the requirements of the first amendment in the same way applicable to adults"]. Thus, for example, child pornography is not constitutionally protected speech ( Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98; RAV v. City of St. Paul, Minn. --- U.S. ----, 112 S.Ct. 2538, 120 L.Ed.2d 305; see People v. Sprowal, 49 Misc.2d 806, 268 N.Y.S.2d 444 [App.Term, 1st Dept.].

Some courts have upheld orders placing a "best interest of the child" limitation on speech addressed to children. Indeed, usually without objection or even comment Family Court and Supreme Court often issue orders limiting speech addressed to the children. These matters appear to be so routine that they are rarely reported. For example, the Third Department in Matter of Fargnoli v. Faber, 105 A.D.2d 523, 524, 481 N.Y.S.2d 784, without discussion, upheld an injunction addressed to counsel and a mother prohibiting them from making disparaging remarks about the children's representation by a law guardian. The court merely noted that "inasmuch as the injunction is narrowly directed and proscribes only certain communications which would be improper in any event * * * we are satisfied that no First Amendment rights have been infringed." Similarly, based on Fargnoli, the Florida Court of Appeals upheld against a constitutional attack an order requiring a mother to teach the child "to love and respect" the father, when she did not believe in those statements (Schutz v. Schutz, 522 So.2d 874). A similar result was reached in Dickson v. Dickson, 12 Wash.App. 183, 186-189, 529 P.2d 476, 478-79, where a father was enjoined from making derogatory comments about the mother; the father's "right to impose those views upon the young, the impressionable, the unguided and the immature in our opinion is not an unbridled right." ( Gordon v. Walkley, 41 A.D.2d 493, 495, 344 N.Y.S.2d 233.)

This court finds that the case law supports the conclusion that the court has the power, in an appropriate case, to enjoin one or both parents from making statements to a child that are against the "best interests" of the child if the order is narrowly drawn to meet the purpose. That is, the court must perform a balancing test to weigh the child's right to be protected against harm and the parent's fundamental constitutional right of free speech. The issue of whether to issue an injunction is most readily resolved when there is no serious dispute about the best interests of the child, such as in Fargnoli where the proposed injunction is against disparaging a child's guardian or parent.

Resort to the Courts

This case presents a...