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Free Speech vs. Confidentiality: Is it time to extend free speech protections to children?

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I was reading an article today by Lana Shadwick. In it, she details a situation where a 13 year old boy is attempting to utilize social media to speak out about potential abuse that occurred at a foster home. His attempts to speak out are ultimately shut down by the judge in the case for unclear, but one might assume, confidentiality reasons. The full article can be read here, and it is fairly graphic in its detailing of some rather serious abuse allegations, so if that is something that would trigger you, please be aware before viewing it. My number one problem with this particular case (well maybe number 2 after some pretty horrible abuse) is that presumably the reason that there are such strict laws about confidentiality in these cases is to protect children, whereas in this situation all they seem to be accomplishing is stifling the free speech of a child without a clear argument to how it protects children.

For the most part, in the CPS process, the protection of children is treated as the goal, and the children themselves largely just as objects to be protected. There is a certain necessity to this idea, but at the same time, there should be some common sense and rationality when applying standards. All information about a child in these cases is confidential (presumably to protect the child), but unlike confidentiality as it pertains to adults, there is no mechanism for a child to waive is due to the idea that a child can’t properly consent to such a thing (which is probably as it should be). However, even if you take the somewhat rational stance that a 13 year old does not have the capacity to protect his or her own best interests and thus can’t waive confidentiality, the courts and the process as a whole should attach a much greater weight to the wishes and rights of the children they are sworn to protect.

Now, I certainly don’t know all of the facts in this case, so for all I know, there are some extremely compelling arguments for how this restriction on free speech protects his interests or that of his siblings. Nobody knows other than the people directly involved in this case. However, I would hope that everyone involved in the process focuses on the intent of these confidentiality laws, more so than to the idea of blanket restriction on all free speech in all situations. While the second one is certainly simpler, I would prefer be part of a system that allows some room for voiceless individuals to be heard. If the issue is specific sections of the video in question being too specific, then communicate with the child, set ground rules in place, and let him speak about the rest of the issues.

Part of the problem is the unique issue social media poses as a whole, and those issues are ones that the legal profession will continue to grapple with for years and more likely decades to come. Its increasingly difficult to hide information, and keep information from spreading in today’s digital age, and to a certain extent, impossible. For example in this particular situation, the order the judge makes is to remove a youtube video, but it is unclear as to who that order would apply to (google itself presumably) or what would prevent the child in question from reposting the video again. Presumably in that situation, enforcement could be issued against the parents, but given the ease of posting a youtube video, even if they were on board I doubt they could stop a determined 13 year old from posting things on the internet. At that point, when confidentiality is effectively broken already, and there is little chance of smashing the cat back into the bag, it is probably wiser in today’s day and age to simply let things go rather than drawing more attention (and presumably increasing the breach of confidentiality) by quashing the speech.

One thing is for sure, as issues like these start to crop up more and more in the modern area, I will be curious to see how the legal system adapts to handle it better.

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Timothy Hutton

Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at attorney@okohlaw.us

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