COA balances free speech vs. minor's privacy rights

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The Indiana Court of Appeals was faced with competing constitutional rights today: a mother’s right to free political speech versus her daughter’s right to privacy as to whether her father allegedly sexually abused her.

The court addressed this issue in Paternity of K.D.; T.N. v. B.D., No. 49A02-0907-JV-693, in which mother T.N. had spoken to an Indianapolis newspaper about her daughter’s alleged sexual abuse by the daughter’s father, B.D. The mother believed daughter K.D. had been abused by her father and was angry when the courts kept returning K.D. to his custody after the claims hadn’t been substantiated.

The articles ran a photo of the mother and named the judges, father’s attorney, and referred to K.D by a pseudonym that is very similar to her given name. The articles never mentioned how the abuse allegation wasn’t substantiated or that the CHINS case was dismissed because it was based on that allegation.

B.D. filed two petitions for rule to show cause and the juvenile court prohibited the parties from talking to the media or others about the case. The juvenile court found speaking with the media wasn’t in K.D’s best interest and the statements could result in permanent damage to the daughter.

The Court of Appeals agreed with T.N. that the order violates her right to free political speech under the First Amendment. The order constitutes an invalid prior restraint because it’s overbroad, wrote Judge Edward Najam. The appellate court balanced T.N.’s right to challenge the judiciary in the media against the privacy rights held by K.D. and father. K.D. has a privacy interest in not having the allegations of sexual abuse publicized, but there was no evidence presented that K.D. suffered or would suffer if her mother continued talking to the media.

“Freedom of speech is a fundamental right. And the right to challenge the government, inherent in freedom of speech, is at the foundation of our Constitution,” wrote Judge Najam. “Thus, we decline to say that Mother’s right to freedom of speech must yield absolutely to all facets of what the juvenile court broadly described as ‘a confidential matter.’”

The appellate court also found that B.D.’s privacy rights don’t outweigh T.N.’s right to free speech. B.D. is with recourse in the event of false accusations through a defamation action.

Examining whether the proceedings in K.D.’s case were confidential under Indiana Code sections 31-39-1-1 and -2, the judges found a literal reading of these statutes would prohibit the release only of documentation or “records” of the juvenile court but would not affect a party’s discussion of those records.

“However, such a construction would emasculate the rule by allowing a litigant to read the records or documents in whole to someone unaffiliated with the litigation. That absurd possibility cannot be the intent of our legislature,” wrote Judge Najam.

The order correctly prohibits T.N. from discussing with anyone the contents of the records listed in Section 31-39-1-1, but the order isn’t narrowly tailored. The order is overbroad to the extent that it includes mother’s independently obtained knowledge of incidents or facts that underlie the court proceedings, so it’s an invalid prior restraint on her free speech rights.

The Court of Appeals ordered the juvenile court to enter a new order that prohibits T.N. from disclosing to the media or anyone information that she learned exclusively through the juvenile proceedings and to prohibit her from using K.D’s name or similar pseudonym.


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  1. Mr Smith, while most reading these posts are too busy making money or cranking out what passes for justice in our legal-techocrat order,I have often attempted to resist your cynicism, well thought out cynicism I admit. Please know that I give up, I can resist your logic no more. From Locknarian Platonic Guardians, through the incorporation doctine, to substantive due process, to Roe, to the latest demands that all states redefine the foundational stone of all civilized social order, the history of America's fall from Grace is inscribed on the dockets of the judiciary. From the federal judges' apostasy of a kind that would have caused John Jay to recommend capital punishment, to the state judges' refusal to protect the sanctuary of the state constitutions, seeing in them merely a font from which to protect pornographers, those who scream "f*ck the police" and pemubras and emanations following the federal apostates, it has been the judiciary, by and large, that has brought the Experiment in Ordered Liberty to an end. The Founders had great and high hopes that they had designed the third branch to save the Republic from such a time as this ... rather the third branch has allowed itself to be used to drag the Republic into rat infested sewers from which no nation has ever returned. Save me from tomorrow:

  2. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  3. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  4. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  5. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied