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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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