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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. Not enough copperheads here to care anymore, is my guess. Otherwise, a totally pointless gesture. ... Oh wait: was this done because somebody want to avoid bad press - or was it that some weak kneed officials cravenly fear "protest" violence by "urban youths.."

  2. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  3. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  4. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  5. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

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