Children’s Best Interests Reign Supreme in Federal Court Decision

Privacy Rights Were Ultimately Put to the Test In an Unlikely Scenario in a New Jersey Divorce Case.

In the divorce of Surender Malhan and Alina Myronova, a family court Judge in New Jersey issued a gag order on one of the parties in order to prevent him from posting “tweets” painting the judiciary in a bad light. The social media posts were Mr. Malhan’s represented Mr. Malhan’s opinions and contained serious allegations regarding his divorce to his former spouse, Ms. Myronova.

The gag order issued by the court was a measure taken in order to prevent either party from speaking to the media. Since these blog postings were for the public to see, the media could have easily began reading them and publicized a story about them. Joining Mr. Malhan in a federal action after the order was upheld, was an investigative journalist, Mr. Paul Argen.

The original gag order was issued in 2015. The order was appealed by Mr. Malhan, but the order was affirmed at the appellate levels. Eventually, Mr. Argen joined Mr. Malhan in filing a lawsuit to prevent the enforcement of the order based on constitutional arguments. The federal district court dismissed the action, but then the case was appealed to the Third Circuit court. The Third Circuit affirmed the district court’s decision except for the constitutionality argument posed by Mr. Argen. They remanded this case back to the district court for them to reconsider the matter.

Primary Issue: Media’s Right to Hear vs. Privacy Rights in Family Court

The main issue addressed by the court was if the media’s right to hear someone’s story outweighed the right of privacy that a Judge may impose on the parties before them. Argent argued, primarily, that the gag order issued in 2015 against Mr. Malhan violated Mr. Argen’s first amendment “right to listen.”

Journalist Challenges Gag Orders in an Effort to Uphold First Amendment Rights

Investigative journalist challenged the constitutional validity of the gag order in an attempt to protect his first amendment “right to listen” as a member of the media. Mr. Argen had brought the action forward because it was he who was affected by the court’s limitation on Mr. Malhan’s first amendment right to free speech. As media, he argues that he had a right to be informed of the court proceeding.

By issuing the gag order based on Mr. Malhan’s blog posts, which the court stated were “prolific” and “vitriolic,” the court essentially issued a content-based ban on Mr. Malhan’s free speech.

After the issue was eventually remanded, the district court was faced with balancing the court’s interest in keeping a family court hearing private against the public’s right to be informed of said proceeding. Ultimately, the Court held that they indeed had a compelling interest in keeping the proceeding private, which was to protect the children. Also, to achieve this goal, there was no other method except for the issuance of a gag order.

Why was the Gag Order Issued?

Judge Kessler issued the initial gag order in an attempt to prevent the parties, namely Mr. Malhan, from posting his opinions on the internet. The Judge saw these posts as hateful, disparaging social media posts and wanted to protect the parties, as well as the two children that the parties shared. Speaking to the media, or continuing the blog posts, would only make the divorce more contentious and potentially psychologically and emotionally harm the children.

Exploring the Pros and Cons of Imposing a Gag Order

The first advantage of the gag order is the protection and best interest of the children involved with the contentious divorce. The court wanted to protect the children from seeing their father publicly disparage their mother and the court. Court’s will typically determine that children need both of their parents in their life, and the better the parents get along, the easier it is for the children. The disadvantage of the gag order is that the court has prohibited freedom of expression based on the content of that speech.

The Vital Role of the Children’s Well-Being in the Case

When the court balanced the possibility of harm to the children of the parties with Mr. Argen’s right to be informed of the case, they stated that Mr. Argen’s harm was “negligible”. The court considered the fact that Mr. Argen was free to write about the family proceeding because he was not named in the gag order. The best interest of the children was the driving factor of why the gag order was initially entered because the court believed that any publicity would have a negative impact on the children.

Now, whenever the court wants to issue a gag order restricting the free speech of the litigants and the rights of the media to listen to that expression of speech, they must have a compelling interest that is achieved only by issuing the gag order and by no other means available.

Contact Our Family Lawyers with Brick and Sea Girt Offices

This is an extremely difficult area of the law to navigate, especially if you are a pro se litigant. Having a seasoned family lawyer with the required experience is the best possible way for you to protect yourself against an overly burdensome gag order or to ensure your privacy rights are upheld and your child’s well-being is fully prioritized in any decisions issued by the court. Making sure the best interests of your children are seen by the court, as well as protecting your first amendment rights, is extremely difficult to do simultaneously.

Trust the lawyers at Bronzino Law Firm for the background, commitment, and unwavering support you need to handle a gag order in a family law case, a custody issue, a contentious divorce, and other issues affecting your life personally and legally for the short and long-term. We assist clients in Middletown, Holmdel, Wall, Toms River, Jackson, Eatontown, Brick, Red Bank, and other Monmouth and Ocean County communities. Contact (732) 812-3102 for a free consultation with our attorneys.