Walking a constitutional tightrope: Free speech and family matters – Malone v. Rose 


By: Timothy R. Gilbert

A recent Tennessee appellate opinion, Malone v. Rose,1 sheds light on the delicate issue of prior restraints on speech in family law cases. Though the matter unfolded in a family law dispute, it serves more broadly as a reminder of the critical importance of free speech and the necessary restrictions on governmental power. In this case, the Chancery Court for Williamson County, Tennessee issued an order restraining a non-party from discussing aspects of his son’s case with his minor grandchild (his son’s daughter). The Court of Appeals of Tennessee ultimately reversed the order, emphasizing the importance of protecting the rights guaranteed by the Constitution. 

The central issue in Malone v. Rose was whether the trial court erred in issuing an order prohibiting a non-party from discussing the legal proceedings of his son’s case with his grandchild. The Court of Appeals applied strict scrutiny review, emphasizing that prior restraints on speech are presumptively unconstitutional and must be narrowly tailored to serve a compelling governmental interest. The Court found that the trial court’s orders lacked an adequate evidentiary basis and violated the Petitioner’s constitutional right to free speech. 

The case of Gider v. Hubbell2 provided relevant precedent. There speech restrictions were upheld3 in a family law case due to the demonstrated harmful impact upon the child. However, in Malone, the Court distinguished the lack of evidence supporting the prior restraint order against the grandfather, who was a non-party witness. 

The Malone case underscores the importance of judiciously balancing competing legal imperatives. While this case called the Court to weigh free speech against the welfare of a child in a domestic matter, the Appellate Court’s repudiation of the trial court’s order resonates further—serving as a potent reminder of the significance afforded to fundamental rights. Malone reinforces that judges are duty-bound to preserve the integrity of individual liberties. While restrictions on speech may be appropriate in certain circumstances, such as protecting children from harm, courts may not impose such limitations based on a whim. Contrarily, courts must meticulously consider the evidence and ensure that any prior restraints are narrowly tailored and supported by compelling rationale. Thankfully, the Appellate Court’s order reaffirms the fundamental importance of protecting First Amendment rights, even in the sensitive context of family law. 

In sum, Malone v. Rose highlights the enduring constitutional doctrines that underpin the legal fabric of our society. These foundational principles provide indispensable checks on the exercise of governmental power, ensuring that our government remains for, of, and by the people. 

For more information, please contact Timothy R. Gilbert at or your local FMG attorney

  1. PATRICK M. MALONE v. JAMES WILLIAM ROSE, ET AL. Additional Party Names: Jennie Adams Rose, Michael P. Malone, No. M202301453COAWRCV, 2024 WL 1281109 (Tenn. Ct. App. Mar. 26, 2024). ↩︎
  2. Gider v. Hubbell, No. M201600032COAR3JV, 2017 WL 1178260 (Tenn. Ct. App. Mar. 29, 2017). ↩︎
  3. The Gider Court generally upheld the restrictions though made slight alterations to address provisions that they felt were overbroad or vague. Id. at *12.  ↩︎