Truth Bomb 8 Part 2

Understanding Content-Based Prior Restraints in Child Custody Cases

Introduction

When a judge orders you not to speak about your child custody case, they are issuing a content-based prior restraint. This is a legal term that refers to a judge's attempt to prevent you from speaking about certain topics related to your case. In most cases, such restraints are likely unconstitutional. This article will delve into the complexities of content-based prior restraints, particularly in the context of Best Interests of the Child justifications in family law, and explain why they are problematic.

Your judge's mere opinion regarding what is "best" in matters of conscience in child-rearing is a state "viewpoint," and Troxel refers to best interest as a mere difference of opinion. Any prior restraints on speech or association, such as a child custody order or parenting plan, that is justified by best interest is a viewpoint-based prior restraint. The United States Supreme Court has NEVER EVEN ONCE in its history ever permitted a viewpoint-based prior restraint to survive constitutional review.

If you ask the question properly and appropriately, even Google AI will explain to you how your child custody order is a prior restraint on speech and where authorized by statute, it is the state who must appear and prove, under the facts and context of your specific case, that the statute is constitutional, NOT you and NOT the other parent. If your judge argues the state's position against you, your judge disqualifies themself from being a judge in your case. Calling Best Interest a public policy can NOT save the judge where the policy is asserted by the judge against your rights.

What is a Content-Based Prior Restraint?

A content-based prior restraint occurs when a judge presumes that talking to your child about your case would be harmful and assumes the authority to prevent this type of harm. Both presumptions are extremely problematic. If you could challenge these prior restraints before an honest, neutral, and impartial judge, you would likely win. However, finding such a judge in family law is often a challenge.

The Bias in Family Law

Judges in family law cases often enter the proceedings predetermined to act in your child's best interest. This predisposition can bias them against you, making them neither neutral nor impartial. They are not independent because they are doing exactly what the legislature commands them to do, exercising their judicial discretion in a manner that the legislature has dictated. While the legislature cannot dictate how judges use judicial discretion, this is often overlooked.

Types of Prior Restraints

Prior restraints can be content-based or viewpoint-based. Understanding the difference is crucial in challenging these orders.

Content-Based Prior Restraints

A prior restraint is content-based when the topic of the custody case is the speech that is prohibited. Content-based prior restraints move up to strict scrutiny protection, which is the highest standard of constitutional protection. It is extremely unlikely that telling a parent that they cannot discuss their case with their child could survive this standard, especially before a neutral and impartial judge.

Viewpoint-Based Prior Restraints

Viewpoint-based prior restraints are a special type of content-based prior restraint. This occurs when the government limits expression based on the content, where the content is determined by a government opinion, and the restraint shows favoritism by the government to one side or the other of a debate. For example, if a judge tells you that you can't talk to your child about the other parent, that would be content-based. However, when your judge orders you not to make disparaging remarks about the other parent to your child, this is viewpoint-based.

The Problem with Viewpoint-Based Restraints

The problem with viewpoint-based restraints is that your judge is targeting specific viewpoints and limiting only those viewpoints. Prohibiting all speech about the other parent doesn't make the viewpoint you choose to express the limiting factor; only the content of the speech is limited. Prohibiting derogatory speech, however, targets the viewpoints you are seeking to express. Your judge may not like your derogatory speech about the other parent, but they cannot lawfully restrict or punish that speech.

The Role of Your Attorney

If your attorney were actually doing their job, they would object to this viewpoint-based prior restraint. The fact that they do not demonstrates that they either do not know to object or they are complicit with the judge in attempting to restrict your expression to meet their own viewpoints of what's best for your child.

Fiduciary Duty of Attorneys

Family law attorneys often take it upon themselves to act in what they believe to be your child's best interests, not in your best interests. This is actually something you can sue your attorney over because they have a fiduciary duty to pursue your interest and nobody else's. One of the major problems in family law is that everybody involved is trying to act in your child's best interest, or at least they're claiming to, but nobody is actually following the law or doing the jobs they are supposed to do.

Challenging Prior Restraints

Prior restraints don't have to be so direct or so narrow. When your judge limits the times, the places, or the manner in which you can speak with your child based on your judge's opinion that your speech isn't as good for your child as the other parent's speech is, your judge is issuing a viewpoint-based prior restraint. This is because your judge is targeting your parental expression with your child as less than best and therefore is targeting your speech for limitation precisely because the viewpoints you generally express to your child are disfavored by the judge.

The "Best Interest of the Child" Argument

The "best interest of the child" is a viewpoint that, when applied as justification for limiting your ability to speak with your child, becomes a viewpoint-based prior restraint on speech that is presumptively unconstitutional. Viewpoint-based prior restraints on speech are rarely, if ever, found to be justified in an honest court.

Federal Court Stance

Federal courts may rarely approve a content-based prior restraint if it meets some very, very tough criteria under strict scrutiny. However, there are no known cases where the Supreme Court or even a federal appeals court has approved a viewpoint-based prior restraint on speech. It's the hardest thing to do, if it can be done at all, because the federal courts highly, highly disfavor prior restraints on speech that are content-based, and they absolutely disfavor viewpoint-based prior restraints.

Why These Restraints Are Unacceptable

All a viewpoint-based prior restraint is, is an opinion by the judge. It's unsubstantiated by anything other than the judge's opinion. Based on that opinion of one individual, your fundamental First Amendment rights to speak are limited or shut down completely, and that's just absurd. The Supreme Court agrees that that's absurd.

Taking Action

What we very clearly need to be doing is challenging these prior restraints on speech that these judges are issuing. Simply by objecting in the hearing when the judge orders it, and then when you receive the written orders, filing a written objection to it again, calling it out as what it is: a content-based or viewpoint-based prior restraint on speech.

• Call it out
• Point it out
• Object to it
• Raise it on appeal if you go to appeal

We can get these courts to stop doing this eventually. Right now, they're doing it because nobody's complaining. The attorneys are complicit in it; the attorneys are not challenging it; the attorneys are not appealing it because the attorneys want to be the nice, good guys and act in your child's best interest, and oh, well, everybody needs to care about the child.

Accountability and Responsibility

None of those people have any accountability for caring for your child. Only you as a parent have accountability. They want to throw out their opinion and compel you to follow their opinion, and then they wash their hands and go away. They're not going to be accountable for any harm it does to your child after they've gone their own way. That just makes it pathetic and cruel and evil when these people throw out their opinions and try to force you to follow their opinions when they lack any accountability whatsoever.

Judicial Immunity

The judges are far worse because, beyond lacking any accountability, they have absolute immunity from intentionally and maliciously harming your child. And yet, these are the people who are making these decisions for your children.

Conclusion

You need to confront them. You need to tell them that it's wrong, and you need to challenge them. Take it all the way up. Point it out, make everybody see that what these judges are doing is unconstitutional, it's illegal, and it's pure evil.