Petition for Writ of Certiorari — Amika T. Clark, Petitioner v. Tyrus J. Clark

No._____

IN THE

Supreme Court of the United States

___________________________________

AMIKA T. CLARK,

v.

Petitioner,

TYRUS J. CLARK,

Respondent.

___________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE SOUTH CAROLINA SUPREME COURT

___________________________________

PETITION FOR WRIT OF CERTIORARI

___________________________________

Taylor M. Smith IV

Counsel of Record

Meriwether Law

923 Calhoun Street

Columbia, SC 29201

(803) 779-2211

Taylor@meriwetherfirm.com

Counsel for Petitioner

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTION PRESENTED

Whether

the

First

and

Fourteenth

Amendments permit a family court to impose an

indefinite, content-based prior restraint on a parent’s

speech, based solely on a “best interests of the child”

rationale, without evidence of harm, without applying

strict scrutiny, and also separately in a form that

restricts speech even after the child reaches majority?

i

PARTIES TO THE PROCEEDING

Petitioner is Amika T. Clark.

Respondent is Tyrus J. Clark.

RELATED PROCEEDINGS

Tyrus J. Clark v. Amika T. Clark, Case No. 2013-

DR-23-4824, Greenville County Family Court,

Judgment issued March 15, 2021, entered March 17,

2021.

Tyrus J. Clark v. Amika T. Clark, Court of Appeals

of South Carolina, Appellate Case No. 2021-001169,

Judgment entered March 5, 2025.

Tyrus J. Clark v. Amika T. Clark, Supreme Court of

South Carolina, Appellate Case No. 2025-001692,

certiorari denied, Order (denial) entered December

16, 2025.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED…………………………..…i

PARTIES TO THE PROCEEDING ……………….…ii

RELATED PROCEEDINGS …………………………..ii

TABLE OF CONTENTS……………………………….iii

TABLE OF APPENDICES ..…………………………..iv

TABLE OF CITED AUTHORITIES………………...vii

INTRODUCTION………………………………………..1

OPINIONS BELOW……………………………………..3

JURISDICTION………………………………………….4

PERTINENT STATUTES AND RULES……………..4

STATEMENT OF THE CASE…………………………5

REASONS FOR GRANTING THE PETITION

I.

Certiorari is warranted due to the family

courts of this nation escalating hostility

towards the speech rights of the parties

before them, even after the proceedings have

ended ………………………………………...….9

iii

II. The family courts near routinely enter initial

“temporary” orders in divorce proceedings

gagging the parties’ speech, thus creating a

vehicle for later contempt findings, and a

purported justification for prior restraints of

speech after the proceedings …………..……13

III. A bare “best interests of the child” rationale,

often employed by family courts, unsupported

by evidence of harm, cannot satisfy the First

Amendment’s compelling-interest requirement restricting the content of protected

speech…………………………………………..21

IV. This case is a compelling vehicle for resolving

the constitutional questions……………….. 24

CONCLUSION ………………..……………………….26

iv

TABLE OF APPENDICES

Page

APPENDIX A – ORDER OF THE SOUTH

CAROLINA COURT OF APPEALS,

FILED JULY 24, 2025 . . . . . . . . . . . . . . .

A1

APPENDIX B – OPINION 6103 THE

STATE OF SOUTH CAROLINA COURT

OF APPEALS, FILED MARCH 5, 2025 .

3A

APPENDIX C – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

AUGUST 25, 2021. . . . . . . . . . . . . . . . . . .

23 A

APPENDIX D – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

MARCH 15, 2021 . . . . . . . . . . . . . . . . . . . .

31 A

APPENDIX E – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

MARCH 20, 2017 . . . . . . . . . . . . . . . . . . . .

76 A

APPENDIX F – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

v

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

OCTOBER 6, 2015. . . . . . . . . . . . . . . . . . .

83 A

APPENDIX G – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

JULY 23, 2015 . . . . . . . . . . . . . . . . . . . . . .

87 A

APPENDIX H – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

JULY 15, 2015 . . . . . . . . . . . . . . . . . . . . . .

90 A

APPENDIX I – ORDER OF THE STATE

OF SOUTH CAROLINA, IN THE

FAMILY

COURT

FOR

THE

THIRTEENTH JUDICIAL CIRCUIT,

COUNTY OF GREENVILLE, FILED

APRIL 21, 2014 . . . . . . . . . . . . . . . . . . . . .

128 A

APPENDIX J – ORDER THE SUPREME

COURT OF SOUTH CAROLINA, FILED

DECEMBER 16, 2025 . . . . . . . . . . . . . . . .

141 A

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Ashcroft v. Free Speech Coalition,

535 U.S. 234 (2002) ……………………………….11, 22

Brown v. Entertainment Merchants Association,

564 U.S. 786 (2011)……………………………11, 17, 22

Butler v. Michigan,

352 U.S. 380 (1957)………………………………….…22

Carroll v. President & Comm’rs of Princess Anne,

393 U.S. 175 (1968) …………………………..10, 16, 24

Curlee v. Howle,

277 S.C. 377, 287 S.E.2d 915 (1982)…………………20

Eaton v. City of Tulsa,

415 U.S. 697 (1974)…………………………………….25

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975)…………………………………….22

Grayned v. City of Rockford,

408 U.S. 104 (1972) ……………………………………17

In re Marriage of Candiotti,

34 Cal. App. 4th 718 (1995) ……………………..11, 23

In re J.S.,

431 N.J. Super Ct. App. 321 (App. Div. 2013)……..11

vii

In re Little,

404 U.S. 553 (1972)…………………………………….25

In re Paternity of B.J.M.,

744 N.E.2d 898 (Ind. Ct. App. 2001) …………..11, 23

In re Marriage of Hartmann,

228 P.3d 907 (Colo. App. 2009) …………………11, 23

In re Marriage of Slayton,

32 P.3d 696 (Wash. Ct. App. 2001)……………..11, 23

In re T.T.,

228 A.3d 529 (Pa. Super Ct. 2020) …...…………11, 23

Jones v. Union County,

296 F.3d 417 (6th Ct.App. 2002) …………..…...12, 17

Madsen v. Women’s Health Center,

512 U.S. 753 (1994)……………………………10, 17, 25

Near v. Minnesota,

283 U.S. 697 (1931)…………………………………….24

Organization for a Better Austin v. Keefe,

402 U.S. 415 (1971)……………………………………..25

Pirkle v. Pirkle,

303 S.C. 266, 399 S.E.2d 797 (Ct. App. 1990)……..20

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ……………………………………10

viii

Shak v. Shak,

484 Mass. 658, 144 N.E.3d 274 (2020) …….10, 18, 23

Troxel v. Granville,

530 U.S. 57 (2000) …………………………… 11, 16, 24

United States v. Alvarez,

567 U.S. 709 (2012) …………………………………... 11

United States v. Playboy Entertainment Group,

529 U.S. 803 (2000) ………………………...……..11, 22

STATUTES AND RULES

U.S. Const. art VI, cl. 2 ……………………………….. 4

U.S. Const. amend I, ….………………………………..

…3, 5, 9, 10, 11, 12, 13, 16, 17, 21, 22, 23, 24, 25, 26

U.S. Const. amend XIV, ………...…………3, 5, 16, 26

ix

INTRODUCTION

This petition seeks a writ of certiorari to review

the South Carolina Court of Appeals’ published

decision, 446 S.C. 909, 17 S.E.2d 917, Opinion No.

6103 (March 5, 2025), which affirmed a permanent

restraining order, a contempt finding, and an award

of attorney’s fees against Petitioner, Amika T. Clark,

for publishing a memoir during the pendency of her

divorce proceedings. The family court held Petitioner

in contempt for violating a non-disparagement clause

that restrains “the use of profanity or making any

derogatory comments about or toward the other

party… in any manner whereby the child… might

learn of the same,” even though the record contains

no evidence that the child ever saw, accessed, or was

exposed to the book. Instead, the court justified its

ruling solely on the ground that it was “plausible” the

child “could, and likely has” learned of or seen the

book—despite Petitioner’s unrebutted testimony that

she had not shown the book to the child, had taken

steps to prevent access, and had never brought the

child to any book events (“plausible” exposure finding;

“Petitioner testified that she had not shown the book

to the child…”).

The family court treated the publication of

Petitioner’s memoir as a violation of multiple

provisions of the parties’ orders—including the nondisparagement clause, the requirement to maintain a

“moral and safe environment,” prohibitions on

“conduct detrimental to the child,” and restrictions on

exposing the child to “age-inappropriate material.” It

then imposed both criminal and civil contempt

sanctions, ordered Petitioner to “cease and desist

1

from disseminating this book in any manner

whatsoever,” and awarded Respondent attorney’s

fees. The Court of Appeals affirmed the contempt

finding, the permanent speech restriction, and the fee

award. The South Carolina Supreme Court denied

review.

The decision below authorizes a family court to

impose an indefinite, content-based prior restraint on

a parent’s speech based solely on a generalized “best

interests of the child” rationale—without evidence of

harm, without applying strict scrutiny, and in a form

that suppresses speech even after the child reaches

majority. The order prohibits “any derogatory

comments” in any context “whereby the child might

learn of the same,” a formulation so sweeping that it

encompasses private conversations, therapy sessions,

support-group discussions, and even published

writings. It contains no sunset provision and extends

beyond the child’s adulthood, long after the State’s

asserted interest ends.

This Court has long held that prior restraints

are “the most serious and the least tolerable

infringement on First Amendment rights,” and that

such restraints carry a “heavy presumption” against

constitutional validity. Yet neither the family court

nor the South Carolina Court of Appeals identified a

compelling interest recognized by this Court, found

concrete or imminent harm, or considered less

restrictive alternatives. Both courts instead treated a

permanent speech ban as an ordinary incident of

custody litigation—contrary to this Court’s repeated

instruction that “harm… should not simply be

assumed or surmised; it must be demonstrated in

detail.”

2

The question presented is therefore of

exceptional national importance: Whether the First

and Fourteenth Amendments permit a family court to

impose an indefinite, content-based prior restraint on

a parent’s speech, based solely on a “best interests of

the child” rationale, without evidence of harm,

without applying strict scrutiny, and in a form that

restricts speech even after the child reaches majority.

Lower courts are deeply divided on this

question. Some jurisdictions require strict scrutiny,

evidence of harm, and narrow tailoring; others uphold

template-based gag orders based solely on “best

interests.” The decision below deepens that split and

underscores the urgent need for this Court’s review.

This case is an ideal vehicle. It presents a

permanent,

content-based

prior

restraint

unsupported by evidence, enforced through contempt,

and extended beyond the child’s majority, yet applied

through a rationale that implicates custody

proceedings in all 50 states. Only this Court can

provide the uniform constitutional rule necessary to

protect First Amendment rights in family-court

proceedings across the country.

To illuminate how the family court’s speech

restrictions arose and why the constitutional stakes

are so significant, the course of the proceedings below

is summarized next.

OPINIONS BELOW

The Greenville County, South Carolina Family

Court “temporary” order is unreported but reprinted

at App. 128. The Greenville County, South Carolina

Family Court contempt order is unreported but

3

reprinted at App. 31. The opinion of the South

Carolina Court of Appeals is reported at 446 S.C. 909

and 17 S.E.2d 917 and reprinted at App. 3. The South

Carolina Supreme Court order denying the petition

for certiorari is unreported but reprinted at App. 141.

JURISDICTION

The South Carolina Appellate Court issued its

opinion on March 5, 2025. Petitioner timely petitioned

for rehearing and review en banc, which the South

Carolina Court of Appeals denied on July 24, 2025.

Petitioner then timely sought a petition for a writ of

certiorari before the South Carolina Supreme Court.

The South Carolina Supreme court denied the

petition on December 16, 2025. Jurisdiction is proper

in this Court pursuant to 28 U.S.C. § 1257(a).

PERTINENT STATUTES AND RULES

The Supremacy Clause of the United States

Constitution provides in the relevant part:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; … shall be the supreme law of the

Land; and the judges in every State shall be

bound thereby, and Thing in the Constitution

or Laws of any State to the Contrary

notwithstanding.

U.S. Const. art VI, cl. 2

4

The First Amendment to the United

Constitution provides in the relevant part:

States

Congress shall make no law … abridging the

freedom of speech.

U.S. Const. amend. I

The Fourteenth Amendment to the United States

Constitution provides in the relevant part:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law;

U.S. Const. amend. XIV, § 1.

STATEMENT OF THE CASE

The parties were formerly married and were

divorced on July 15, 2015. App. 124; Final Order and

Divorce Decree. That order addressed custody and

placement of the parties’ minor child, TEC. App. 124;

Final Order and Divorce Decree, pp. 9–19. It also

placed various restraints on the parties regarding

their minor child. App. 126; Final Order and Divorce

Decree, pp. 23–25.

On July 24, 2015, the family court issued a

Supplemental Order to Final Order and Divorce

Decree. App. 87. Exhibit B to that order clarified

visitation and restraint provisions inadvertently

omitted from the final decree. On October 12, 2015,

5

the family court issued an Amended Supplemental

Order to Final Order and Divorce Decree, which did

not modify any visitation or restraint provisions. App.

83.

In 2017, both parties pursued contempt claims,

resulting in a March 21, 2017, Final Order on

Contempt Actions. App. 76.

On March 30, 2020, Respondent filed the

present contempt action, alleging Petitioner violated

provisions of the Amended Supplemental Order to

Final Order and Divorce Decree and the Final Order

on Contempt Actions. App. 32; March 30, 2020, Order

and Rule to Show Cause. Petitioner filed her return

on October 27, 2020. App. 34; Return to Rule to Show

Cause. The contempt hearing occurred on October 27,

2020, and January 6, 2021. After the January

hearing, the family court requested briefing on the

First Amendment issues. App. 25; Email from Judge

Conits (Jan. 14, 2021).

The South Carolina Coalition Against

Domestic

Violence

and

Sexual

Assault

(“SCCADVASA”) and the ACLU of South Carolina

Foundation sought and obtained leave to file a Brief

of Amici Curiae Concerning First Amendment, Due

Process and Public Policy Arguments to Be

Considered in the Court’s Order on Rule to Show

Cause Action. Both parties also submitted briefs

addressing the First Amendment issues. Legal Brief

of

Plaintiff-Respondent

Regarding

the

Constitutionality of Prior Restraints on Parental

Speech. Brief of Defendant, Amika Clark, in

Opposition to Plaintiff’s Request to Find Defendant in

Contempt of Section III(C) of the Parties’ Final Order.

6

On March 17, 2021, the family court issued its

Order on Contempt. App. 31. The court found

Petitioner in criminal contempt for failing to notify

Respondent of the child’s mental-health counseling

and imposed a $1,500 fine. App. 41; Order on

Contempt, p. 9, ¶ III(c).

The order also addressed several unrelated

contempt allegations, which are not directly at issue

in this petition.

The family court further found that a book

Petitioner had authored violated multiple provisions

of

the

parties’

orders

—

including

the

non-disparagement clause, provisions requiring a

moral and safe environment, prohibitions on conduct

detrimental to the child, and restrictions on exposing

the child to age-inappropriate material. App. 41-67;

Order on Contempt, pp. 13–28. The court held

Petitioner in criminal and civil contempt, ordered her

to “cease and desist from disseminating this book in

any manner whatsoever,” imposed additional

restrictions on her handling of the material, and fined

her $1,500. App. 66-67; Order on Contempt, pp. 28–

29, ¶¶ VII(s)–(t). With the parties’ consent, the court

added a No Adverse Contact Order. App. 67; Order on

Contempt, pp. 30–31, ¶ VIII(b). It also ordered

Petitioner to pay Respondent’s attorney $10,000

within ninety days. App. 72; Order on Contempt, p.

33, ¶ X(c).

Both parties filed motions for reconsideration.

Petitioner filed her Defendant’s Notice of Motion and

Motion to Reconsider Order on Contempt on March

31, 2021. App. 25. Respondent filed Plaintiff’s Notice

of Motion to Reconsider and Alter or Amend

Judgment Pursuant to SCRCP 52, SCRCP 59(e), and

7

SCRCP 60 on March 29, 2021. App. 25. The parties

filed returns on August 11 and 12, 2021. App. 25; App.

25.

The motions were heard on August 12, 2021.

On August 27, 2021, the family court issued its Order

on Plaintiff’s Motion to Reconsider and Alter or

Amend Judgment Pursuant to SCRCP 52, SCRCP

59(e), and SCRCP 60, and Order on Plaintiff’s Motion

to Dismiss Defendant’s Motion to Reconsider and

Order on Defendant’s Motion to Reconsider Order on

(“Final

Order

on

Motions

for

Contempt

Reconsideration”). App. 101–106. The court awarded

Respondent an additional $5,000 in fees for briefing

the constitutional issues and $2,433.75 for his motion

to reconsider. App. 26; Final Order on Motions for

Reconsideration, p. 3, ¶¶ 5–6. It amended the

non-disparagement clause to add a “reasonable

expectation of privacy” exception. App. 27; id., ¶ 7.

The court denied Petitioner’s motion to reconsider

and her request for attorney’s fees. App. 29; id., p. 4,

¶ 9.

Petitioner appealed. The South Carolina Court

of Appeals (Appellate Case No. 2021-001169) issued

its opinion on March 5, 2025, affirming the family

court. A petition for rehearing was denied on July 24,

2025. Amika T. Clark thereafter petitioned the South

Carolina Supreme Court for writ of certiorari to

review this matter. The Supreme Court of South

Carolina denied the petition for writ of certiorari by

order, filed December 16, 2025.

This Petition for a Writ of Certiorari followed.

8

REASONS FOR GRANTING THE PETITION

This case presents a constitutional problem

that has become both widespread and urgent: state

family courts are increasingly issuing sweeping

restraints on parental speech without applying the

First Amendment standards this Court has long

required. These orders—often permanent, and often

enforced through contempt—silence parents on

matters at the core of public discourse, including

domestic violence and the operation of the courts

themselves. Yet lower courts lack a uniform

constitutional framework for evaluating these

restraints, resulting in inconsistent outcomes and

escalating intrusions on protected expression. The

decision below exemplifies this drift, upholding a

lifelong, content-based prior restraint based solely on

a “best interests” rationale and without evidence of

harm. This Court’s intervention is necessary to

restore the constitutional limits on prior restraints

and to provide guidance in an area where

fundamental rights are increasingly at risk.

I. Certiorari is warranted due to the family courts of

this nation escalating hostility towards the speech

rights of the parties before them, even after the

proceedings have ended

Family courts across the country routinely

impose gag orders, non-disparagement clauses, and

publication bans in custody and divorce proceedings,

often using template provisions—like the one at issue

here—that are inserted without individualized

findings, without evidence of harm, and without any

9

consideration of the First Amendment. These orders

frequently prohibit parents from speaking about their

former spouses, the litigation, or their own life

experiences, including matters of profound public

concern such as domestic violence, sexual assault, and

the operation of the courts themselves. Yet courts

apply widely divergent constitutional standards when

evaluating such restraints, and this Court has never

provided guidance on how the First Amendment

applies in this context. Courts, however, apply

sharply divergent constitutional standards when

evaluating such restraints, and this Court has never

provided guidance on how the First Amendment

applies in this context. The result is a patchwork of

inconsistent and often conflicting decisions that leave

parents, children, and courts without a clear

constitutional rule. This Court has repeatedly

granted certiorari when lower courts apply

inconsistent standards to core First Amendment

protections, as in Reed v. Town of Gilbert, 576 U.S.

155 (2015), Madsen v. Women’s Health Center, 512

U.S. 753 (1994), and Carroll v. President & Comm’rs

of Princess Anne, 393 U.S. 175 (1968). The same need

for uniformity exists here.

This conflict is deep, acknowledged, and

outcome-determinative. A growing number of courts

recognize that family-court speech restrictions are

prior restraints subject to strict scrutiny. In Shak v.

Shak, 484 Mass. 658, 144 N.E.3d 274 (2020), the

Massachusetts Supreme Judicial Court struck down

a non-disparagement order because the State failed to

show “grave, imminent harm” to the child and

because concerns about future exposure were

“speculative.” California courts have likewise held

10

that speech restrictions in custody cases must be

supported by evidence of harm and narrowly tailored.

In re Marriage of Candiotti, 34 Cal. App. 4th 718

(1995). Pennsylvania has taken the same approach.

In re T.T., 228 A.3d 529 (Pa. SupeApp. Ct. 2020).

Washington and Indiana courts have also invalidated

similar restrictions absent concrete findings of harm.

In re Marriage of Slayton, 32 P.3d 696 (Wash. Ct.

App. 2001); In re Paternity of B.J.M., 744 N.E.2d 898

(Ind. Ct. App. 2001). These courts apply the same

First Amendment principles this Court has

articulated in Brown v. Entertainment Merchants

Association, 564 U.S. 786 (2011), Ashcroft v. Free

Speech Coalition, 535 U.S. 234 (2002), United States

v. Playboy Entertainment Group, 529 U.S. 803 (2000),

and United States v. Alvarez, 567 U.S. 709 (2012):

speculation is not enough, and the government must

demonstrate a direct causal link between the speech

to be restrained and the harm to be prevented.

Other jurisdictions, however, uphold speech

restrictions based solely on a judge’s view of the “best

interests of the child,” without applying strict

scrutiny or requiring evidence of harm. See, e.g., In re

Marriage of Hartmann, 228 P.3d 907 (Colo. App.

2009); In re J.S., 431 N.J. SupeApp. 321 (App. Div.

2013). These courts treat “best interests” as

automatically compelling—a position directly at odds

with Troxel v. Granville, 530 U.S. 57 (2000), which

held that “best interests” is not a constitutionally

sufficient basis to override a parent’s fundamental

rights. The divergence is not theoretical.

Anti-disparagement clauses and speech-restrictive

orders appear in standard custody templates in many

states—including the order at issue here—and are

11

often imposed without individualized findings,

without evidence of harm, without applying strict

scrutiny, and without any temporal limitation. Many

of these orders, like the one here, operate indefinitely

and extend beyond the child’s majority, even though

the State’s interest in the child ends at adulthood. A

permanent gag order cannot be justified by a

rationale that no longer exists.

Scholars have documented the national scope

of the problem. Commentators have identified dozens

of family-court gag orders restricting parents from

speaking about their cases, their ex-spouses, or their

own experiences, often enforced through contempt

and often upheld without meaningful First

Amendment analysis. These orders chill speech on

matters of public concern, including domestic violence

and sexual assault—topics that courts have

repeatedly recognized as central to public discourse.

See Mahin, 668 F.3d at 126; Jones v. Union County,

296 F.3d 417, 426 (6th CiApp. 2002). The chilling

effect is profound: parents are deterred from writing

books or memoirs, participating in support groups,

reporting abuse, or criticizing judicial proceedings.

Because these orders are enforceable through

contempt, parents face fines, loss of custody, and even

jail time for engaging in protected speech.

The First Amendment cannot mean one thing

in Massachusetts and another in South Carolina. Yet

that is precisely the situation today. Some courts

require strict scrutiny, evidence of harm, and narrow

tailoring; others uphold sweeping, template-based

gag orders based solely on “best interests.” The South

Carolina Court of Appeals’ decision in this case

deepens that split by holding that “best interests”

12

alone is a compelling interest sufficient to justify a

permanent, content-based prior restraint on a

parent’s speech. That holding squarely presents the

question this Court must resolve.

This case is a compelling vehicle. It presents

the full range of constitutional problems that arise in

family-court speech restrictions: a content-based

prior restraint imposed without strict scrutiny,

justified solely by “best interests,” unsupported by

evidence of harm, vague and overbroad, enforced

through contempt, and extended indefinitely beyond

the child’s majority. Only this Court can provide the

uniform constitutional rule that lower courts urgently

need. The recurring nature of these orders, the

inconsistency

among

jurisdictions,

and

the

fundamental First Amendment rights at stake make

this case exceptionally worthy of review.

II. The family courts near routinely enter initial

“temporary” orders in divorce proceedings gagging

the parties’ speech, thus creating a vehicle for

later contempt findings, and a purported

justification for prior restraints of speech after the

proceedings

The family court’s initial gag order appears as

a “temporary order” filed April 21, 2014. It provides

that, in addition to being “restrained from discussing

any aspect of the current litigation with the minor

child or allowing third parties to do so,” the parties

must not make “any disparaging or derogatory

comments about the other to the minor child or

allowing third parties to do so.” App. 131; Temporary

Order, pp. 7-8. Respondent and Ptitioner were

13

divorced in October 2015, and the family court folded

the gagging language into its final order divorce

decree. App. 119; Amended Supplemental Final

Order and Divorce Decree, p. 4. In the family court’s

order on contempt sanctions at page 13, the origin of

this gagging language is identified by the Honorable

Judge Conits, presiding: “[t]he Court finds that the

parties are bound by this Court’s Amended

Supplemental Final and Divorce Decree, filed on

October 12, 2015, page 4, paragraph C, of Judge

Brown’s Standard Visitation, Guidelines and

Restraining Orders 1, which states as follows: ‘All

parties are restrained against the use of profanity or

making any derogatory comments about or toward

the other party or allowing anyone to do so in front of

the child or in any manner whereby the child might

learn of the same.’” App. 48; Order on Contempt, p.

13.

Even if a temporary restriction on parental speech

could be justified during active custody proceedings,

this initial gagging language, and certainly the later

restraining language in the order here goes far

beyond that:

Defendant Mother is hereby found in willful

civil contempt and shall be sentenced to six (6)

months incarceration at the Greenville County

Detention Center, Greenville, SC, to commence

April 15th, 2021. The Defendant Mother may

purge herself of this incarceration by

These form orders are routinely entered as initial and/or

temporary orders in divorce proceedings in South Carolina. A

copy of the Temporary Order wherein this form order language

was incorporated is provided in the Appendix.

1

14

immediately taking her book, Soul Pieces:

Memoirs of Self-discovery After Domestic

Violence and Divorce off the market in all

forms, to include, but not limited to, hard cover

copies, soft cover copies, electronic, or

otherwise. The Defendant Mother shall cease

and desist from disseminating, promoting,

and/or advertising this book in any manner

whatsoever to anyone. The Defendant Mother

may not keep this book, rough drafts, notes, or

any indicia thereof, in any form whatsoever, on

the premises where the minor child resides or

in any vehicle where the minor child travels.

The Defendant Moher shall not expose this

book, or any indicia thereof, to the parties’

minor child in any manner whatsoever, nor

knowingly place the minor child in a position

where she may learn of the same.

App. 66; Order on Contempt, pp. 33-34.

It restricts Petitioner’s speech indefinitely,

contains no sunset provision, and applies even after

the child reaches majority. The South Carolina Court

of Appeals affirmed this permanent restraint without

(a) identifying any compelling interest that survives

the child’s adulthood, (b) identifying any derogatory

or disparaging language as a narrowly tailored object,

or (c) without explaining how a lifelong ban on

Petitioner’s speech could ever constitute the least

restrictive means of this speech restriction to achieve

any legitimate objective. It is an indefinite,

content-based prior restraint that prohibits a parent

from publishing, possessing, or even privately

15

retaining drafts of a memoir about her own life—

including her experiences with domestic violence. It

bars her from discussing her experiences in therapy,

support groups, or any context “whereby the child

might learn of the same,” and it authorizes

incarceration if she fails to comply. This is the kind of

sweeping, punitive speech ban that this Court has

repeatedly condemned.

This Court has never upheld a speech

restriction that persists after the State’s interest in

the child has ended. Once a child becomes an adult,

the “best interests of the child” standard no longer

applies. See Troxel v. Granville, 530 U.S. 57, 68–69

(2000) (plurality) (rejecting “best interests” as a

sufficient basis to override a parent’s constitutional

rights). A court cannot continue to suppress a parent’s

speech indefinitely based on concerns that no longer

exist.

The overbreadth of the order is extreme.

Section III(C) prohibits “any derogatory comments”

about the other parent “in any manner whereby the

child might learn of the same,” a formulation so

sweeping that it encompasses private conversations,

therapy

sessions,

support-group

discussions,

statements to law enforcement, and even writings

never intended for the child. The order applies

regardless of when the speech occurs, where it occurs,

or to whom it is directed. It is not limited to the child’s

minority, to the child’s presence, or even to the child’s

awareness. It is a blanket prohibition on disfavored

speech.

This Court has repeatedly held that such broad

prophylactic bans on speech are incompatible with

the First Amendment. See Carroll v. President &

16

Comm’rs of Princess Anne, 393 U.S. 175, 183–84

(1968) (striking down a 10-day restraining order as

insufficiently tailored); Madsen v. Women’s Health

Center, 512 U.S. 753, 765 (1994) (injunctions must be

“no more burdensome than necessary”). A permanent

ban on publishing a memoir — including speech on

matters of public concern such as domestic violence

and sexual assault — is far more burdensome than

anything this Court has ever upheld. See Mahin, 668

F.3d at 126; Jones v. Union County, 296 F.3d 417, 426

(6th CiApp. 2002).

The order is also unconstitutionally vague. A

person of ordinary intelligence cannot determine

what constitutes a “derogatory” comment, when a

comment is made “in a manner whereby the child

might learn of the same,” or what it means to “allow”

another person to speak. This Court has long held

that vague speech restrictions invite arbitrary

enforcement and chill protected expression. See

Grayned v. City of Rockford, 408 U.S. 104, 108–09

(1972). The vagueness here is especially troubling

because the order is enforced through contempt,

exposing Petitioner to jail time based on subjective

judgments about tone, content, and hypothetical

exposure.

Nor is the order narrowly tailored. No content

of the memoir is identified. The family court did not

explain why a permanent restraint was “actually

necessary” to prevent harm, Brown v. EMA, 564 U.S.

786, 799 (2011), or why less restrictive means — such

as limiting the order to the child’s minority — would

be insufficient. The South Carolina Court of Appeals

likewise failed to identify any “actual problem” that

could justify suppressing Petitioner’s speech for the

17

rest of her life. Id. The result is a sweeping, perpetual

gag order that suppresses protected expression long

after the State’s asserted interest has expired.

The constitutional defect is compounded by the

fact that much of the information Petitioner is

prohibited from discussing is already publicly

available in court records. A speech restriction cannot

be narrowly tailored when it forbids a parent from

speaking about facts that the State itself has placed

in the public domain.

The family court’s contempt finding is

premised on a determination “that the minor child

could, and likely has, learned of Petitioner’s book,

seen Petitioner’s book and possibly read Petitioner’s

book, the cover of which depicts Petitioner with a

made-up blackened eye.” App. 51; Order on Contempt,

p. 17, ¶VII(g). The family court acknowledges that

restraining Petitioner from writing and publishing

about her experiences implicates First Amendment

protections regarding the right of free speech. She

correctly cites language from Shak v. Shak, 484 Mass.

658, 144 N.E.3d 274 (2020), a seminal case addressing

the right of family courts to restrain parental speech

that may be disparaging of the other parent that,

“harm to the child .... should not simply be assumed

or surmised; it must be demonstrated in detail.” To

overcome this constitutional limitation on restraining

Petitioner’s free speech rights, she makes the factual

finding noted above.

The problem is that this factual finding is not

supported by the record. The family court found “. .

.With both books being promoted so publicly, and a

copy given to the minor child’s sister’s Petitioner, it is

certainly plausible to this Court that the minor child

18

could, and likely has, learned of Petitioner’s book,

seen Petitioner’s book and possibly read Petitioner’s

book, the cover of which depicts Petitioner with a

made-up blackened eye.” App. 51; Order on Contempt,

pp. 16-17, ¶VII(g). This is simply not true, as there

was never any evidence presented at trial that the

child had likely learned of Petitioner’s book, had

likely seen Petitioner’s book, or had likely read

Petitioner’s book.

Petitioner’s own testimony at trial was that the

contents of her book were truthful and accurate

descriptions of the emotional, physical, and mental

abuse she suffered during her marriage to

Respondent. TT, p. 54, line 19-p. 55, line 23. Even so,

Petitioner testified that not only had she not exposed

her daughter to her book, but that she had taken

precautions to assure her child does not access the

book. TT, p. 44, line 3-p. 48, line 18, p. 56, line 4-p. 58,

line 9. Petitioner testified that the child has never

been in attendance at, or been invited to, any of

Petitioner’s book promotions, book signings, or

interviews about the book or her experiences

surrounding domestic violence in general. TT, p. 60,

line 8-p. 64, line 14.

It is also possible that the child would not learn

of Petitioner’s book until she is an adult. The

statutory construct and case law surrounding willful

violations of a family court Order have no foundation

in the concept that there is a “future possibility” of an

event or violation happening. Holding a parent in

contempt now, for what may possibly occur in the

future, would be absurd. From a public policy

perspective, if a parent can be held in contempt for

what the other parent (or the family court, for that

19

matter) fears will happen at a future date, the South

Carolina (and other) family court dockets would

simply explode. Pirkle v. Pirkle, 303 S.C. 266, 269,

399 S.E.2d 797, 799 (Ct. App. 1990) (reversing and

remanding finding of contempt where the amount of

unpaid child support was based upon speculation).

While Respondent tried to convince the lower

courts that the child will most certainly read

Petitioner’s book in the future, Respondent failed to

explain to the family court what significance this

“future event” would even have at his current

contempt hearing if their daughter reads Petitioner’s

book when she is 25 years old. Simply put, if parties’

daughter reads Petitioner’s book for the first time as

an adult, this event would have no effect whatsoever

on the “non-disparagement provision” of the parties’

Final Order. App. 73. None of the facts of this case

presented by Respondent at the contempt proceeding:

that Petitioner has written this book, that Petitioner

has a copy of this book at her house in the garage, that

this book is dedicated to her child, that this book has

been promoted by Petitioner, that this book is

available online for purchase - none of these facts

establishes through clear and convincing evidence at

the trial that minor child “likely has learned of

Petitioner’s book, seen Petitioner’s book and has

possibly read Petitioner’s book…” all of which are

either “past tense” (implying the exposure has

already occurred) or “present tense,” implying the

exposure is currently occurring. App. 65; Order on

Contempt, p. 17, ¶VII(g). See Curlee v. Howle, 277

S.C. 377, 382, 287 S.E.2d 915, 918 (1982) (before a

person may be held in contempt, the record must be

20

clear and specific as to the acts or conduct upon which

such finding is based).

The order at issue is not a routine family-court

directive. It is an indefinite, content-based prior

restraint that prohibits a parent from publishing,

possessing, or even privately retaining drafts of a

memoir about her own life—including her experiences

with domestic violence. It bars her from discussing

her experiences in therapy, support groups, or any

context “whereby the child might learn of the same,”

and it authorizes incarceration if she fails to comply.

This is the kind of sweeping, punitive speech ban that

this Court has repeatedly condemned.

No decision of this Court has ever upheld a prior

restraint of this magnitude, duration, or severity.

Review is necessary to restore the constitutional

limits this Court has consistently enforced and to

prevent family courts from imposing lifelong speech

bans based on speculation and boilerplate language.

III. A bare “best interests of the child” rationale, often

employed by family courts, unsupported by

evidence of harm, cannot satisfy the First

Amendment’s compelling-interest requirement

restricting the content of protected speech

The family court justified both the gag order

and the contempt sanction solely on the ground that

suppressing Petitioner’s speech served the “best

interests of the child.” But this Court has never held

that “best interests” is a compelling interest capable

of justifying a content-based restriction on speech. To

the contrary, this Court has repeatedly rejected

attempts to restrict protected expression based on

21

generalized concerns about children or speculative

fears of future harm.

In Brown v. Entertainment Merchants

Association, the Court held that the State may not

restrict speech to protect minors without concrete

evidence of harm, explaining that “ambiguous proof

will not suffice” when the government seeks to

suppress protected expression. 564 U.S. 786, 799

(2011). In Ashcroft v. Free Speech Coalition, the

Court

invalidated

restrictions

justified

by

hypothetical harms to minors, holding that “the

Government may not suppress lawful speech as the

means to suppress unlawful speech.” 535 U.S. 234,

255 (2002). And in United States v. Playboy

Entertainment Group, the Court reaffirmed that the

government may not rely on “mere speculation or

conjecture” to justify a speech restriction. 529 U.S.

803, 822 (2000).

This Court has also rejected paternalistic

speech restrictions aimed at protecting minors. In

Erznoznik v. City of Jacksonville, the Court held that

the government may not “reduce the adult population

to reading only what is fit for children.” 422 U.S. 205,

213–14 (1975). And in Butler v. Michigan, the Court

struck down a law restricting speech to protect

minors, explaining that the State cannot “burn the

house to roast the pig.” 352 U.S. 380, 383 (1957).

These principles apply with full force here: the family

court suppressed Petitioner’s speech to the entire

world based on what it speculated might someday be

harmful to a child. The best interests’ standard is

indeed important but fails to meet this Court’s

exacting state interest necessary for restricting the

marketplace of ideas: a compelling one.

22

The family court’s own citation to Shak v.

Shak, 484 Mass. 658, 144 N.E.3d 274 (2020),

underscores the constitutional error, which is

increasingly common on family-court speech cases. In

Shak, the Massachusetts Supreme Judicial Court

held that a non-disparagement order in a custody case

was an unconstitutional prior restraint because

“harm to the child … should not simply be assumed

or surmised; it must be demonstrated in detail.” Id. at

663. The same is true here: Respondent offered no

evidence that the child had been exposed to the

memoir, and the family court identified none. The

First Amendment cannot mean one thing in

Massachusetts and another in South Carolina. Only

this Court can resolve this growing conflict. Other

courts meanwhile are following the Shak rationale. In

re Marriage of Candiotti, 34 Cal. App. 4th 718 (1995)

(speech restrictions require evidence of harm); In re

T.T., 228 A.3d 529 (Pa. SuperApp. Ct. 2020)

(reversing speech restriction for lack of findings); In

re Marriage of Slayton, 32 P.3d 696 (Wash. Ct. App.

2001) (same); In re Paternity of B.J.M., 744 N.E.2d

898 (Ind. Ct. App. 2001) (same). But other courts

have upheld restrictions based solely on “best

interests,” without applying strict scrutiny or

requiring evidence of harm. In re Marriage of

Hartmann, 228 P.3d 907 (Colo. App. 2009). This

divergence in constitutional standards is precisely the

kind of conflict that warrants this Court’s review.

This Court has defined compelling state

interests for prior restraints only in the most

exceptional circumstances involving national security

threats, imminent violence, or unprotected categories

of speech, while maintaining that such restraints bear

23

an

extraordinarily

heavy

presumption

of

unconstitutionality. Petitioner respectfully requests

this Petition be granted so guidance may be supplied

to the growing number of family courts in this nation

who are using a ‘best interests of the child’ standard

to restrain speech without findings of harm. Family

courts across the country are increasingly imposing

content-based speech restrictions based solely on

“best interest,” without evidence of harm and without

applying strict scrutiny. Only this Court can supply

the constitutional guidance necessary to prevent the

continued erosion of First Amendment protections in

these proceedings.

IV.This case is a compelling vehicle for resolving the

constitutional questions

This case presents the precise features that

have historically led this Court to grant certiorari in

First Amendment cases:

•

•

•

A content-based prior restraint enforced

through criminal and civil contempt, a

posture this Court has repeatedly

reviewed. Carroll v. President & Comm’rs

of Princess Anne, 393 U.S. 175 (1968);

Near v. Minnesota, 283 U.S. 697 (1931).

A permanent gag order with no sunset

provision, extending beyond the child’s

adulthood—long after the State’s interest

ends. Troxel v. Granville, 530 U.S. 57

(2000).

An injunction that is overbroad and

indefinite, prohibiting speech in any

24

•

•

context “whereby the child might learn of

the same,” far exceeding what this Court

has permitted. Madsen v. Women’s Health

Center, 512 U.S. 753 (1994); Organization

for a Better Austin v. Keefe, 402 U.S. 415

(1971).

A speech restriction backed by the threat

of

six

months’

incarceration,

a

circumstance in which this Court has

consistently intervened. Eaton v. City of

Tulsa, 415 U.S. 697 (1974); In re Little,

404 U.S. 553 (1972).

A published appellate decision squarely

addressing the First Amendment issue,

with no jurisdictional obstacles, no

mootness concerns, and no factual

disputes.

This case offers a clean and urgent opportunity

for the Court to resolve the deep and acknowledged

split, restore the constitutional limits on prior

restraints, and clarify whether family courts may

impose lifelong, content-based speech bans based

solely on “best interests” and without evidence of

harm. It squarely presents the question that lower

courts are repeatedly confronting without guidance

from this Court.

25

CONCLUSION

The decision below permits a state court to

impose an indefinite, content-based prior restraint on

a parent’s speech based solely on a “best interests of

the child” rationale, without evidence of harm,

without applying strict scrutiny, and in a form that

restricts speech even after the child reaches majority.

That result cannot be reconciled with this Court’s

First and Fourteenth Amendment jurisprudence; and

invites widespread censorship in family courts across

the country.

This case presents a clean and important

opportunity for the Court to reaffirm the

constitutional limits on prior restraints and to clarify

that fundamental speech protections do not disappear

in domestic-relations proceedings.

For the reasons described herein, the Petition

for a Writ of Certiorari should be granted.

Respectfully submitted,

Taylor M. Smith IV

Counsel of Record

Meriwether Law

923 Calhoun Street

Columbia, South Carolina 29201

(803) 779-2211

taylor@meriwetherfirm.com

Counsel for Petitioner

26