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
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.