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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. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  2. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  3. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  4. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  5. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

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