HEFLIN — As 35-year-old Christian Holm on Thursday stopped outside a Cleburne County courtroom to discuss a case in which he and his wife Danielle Holm, 32, are fighting for custody of their newborn child, an attorney interrupted him to say the case was under a gag order.
Courts can use gag orders to protect the interests of children or victims, but some attorneys say the instrument does so at the cost of other constitutional rights.
All juvenile dependency cases, those in which a child’s custody is decided, are confidential cases by state law, Cleburne County Judge Melody Walker said Monday.
Tony Hamlin, attorney for the Department of Human Resources, said a judge could issue a gag order because lay people don’t always understand what confidential means.
Anniston attorney Doug Ghee, whose specialties include family law, confirmed that child custody cases are confidential, meaning the proceedings are closed to the public. However, Ghee said, a gag order is an additional step, usually taken to protect the privacy of a child. When a gag order is in place anyone directly involved in the case is prohibited from discussing the case publicly with anyone else not directly involved, he said.
Gag orders are not a black-and-white issue, though, and they can be challenged, said Andy Olree, professor of law at Faulkner Law in Montgomery.
Gag orders can be an infringement on constitutional rights, Olree said.The first amendment of the U.S. Constitution protects citizens’ right to express themselves and the public’s right to hear discussions of issues of value to them, but that right is not absolute, Olree said.
For instance, a court can institute a judicial injunction which limits the right to speak about certain subjects at a certain time or place, perhaps limiting protests at an abortion clinic, Olree said. It can also institute a gag order in court cases, perhaps to protect a minor’s or victim’s privacy, he said.
In a challenge, a higher court would have to balance the rights of the child or victim with the rights of the other people involved and the public, he said. In run-of-the-mill juvenile cases, a child’s right to privacy generally trumps the public’s right to be a witness to the proceedings, he added.
An additional problem with a gag order in the Holmses’ case is that the public has no information about what steps the state is taking to protect the child and if the parents’ rights are being protected through the proceedings, said University of Alabama School of Law Professor Jenny Carroll. It is, she noted, the parental rights that are in question in the case.
“The public has a right to check if actions being taken in our names are in fact correct,” Carroll said.
The courts are public forums, she said. If they are insulated to the point that the public is excluded it makes it very difficult to know that everyone involved is being treated fairly. That’s not how our courts are supposed to work, she said.