Can a Judge Really Order Me Not to Talk About My Case?

Can a Judge Really Order Me Not to Talk About My Case in Indiana?

In domestic cases, it is somewhat common for one party to allege the other is trying to alienate the children by saying negative things about them. Normally, one party maintains they have heard (usually through the hearsay statements of the children, but not always) the other parent say negative things about the other (mother or father) to the children. In these cases, it is common to request from the court an order prohibiting such statements or communications. This blog explores the First Amendment right to free speech and how it is properly balanced in domestic cases.

The place to start to answer this question is with the First Amendment itself. The First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of Speech . . . .”.1 “A prior restraint is a term used to describe an ‘administrative or judicial order forbidding certain communication when issued in advance of the time that such communications are about to occur.”2

As a general matter, the First Amendment3 is a powerful tool to restrict the government’s ability to limit free speech and protects many forms of speech, such as the right to peacefully assemble.4 On the other end of the spectrum, the commission of a felony is not protected activity even when committed by a group exercising their First Amendment right to free association.

It is within these boundaries, and other reasonably defined First Amendment limitations, a judge may make an order prohibiting talking about a pending domestic case by the parties. Clearly a trial court can (and frequently does) make preliminary and final orders that mandate the parents not to talk badly (or at all) about the other parent in front of the children. In other words, the trial court, acting for the state, has a compelling interest in protecting children from disparagement between their parents.

The general boundaries of the First Amendment noted, “[r]estraining orders and injunctions that forbid future speech activities”, such as non-disparagement orders, “are classic examples of prior restraints.”5 However, there is a compelling government interest “in protecting children from being exposed to disparagement between their parents.”6 In their efforts to protect children, Indiana trial court judges have sometimes made unconstitutional orders that violate the First Amendment.

The Firm has handled at least two (2) of these cases—where the trial court’s order regarding speaking about the case was overbroad and prohibited protected free speech. In the K.D. case, mother contended on appeal that the portion of the Court’s order that prohibited her from speaking to others (not the child) about the juvenile case involving K.D. was an unconstitutional prior restraint on her right to free speech. The Court of Appeals agreed and reversed, but it did prohibit the mother from speaking to K.D. about her disputes with father.7

In the recent Israel case, the Court of Appeals found the trial court’s non-disparagement clause contained in the final decree of dissolution of marriage, which prohibited each parent from disparaging the other in the presence of anyone, was a prior restraint on free speech in violation of the First Amendment. It went too as it prohibited either parent from disparaging the other in the presence of anyone. Thus, this non-disparagement clause, again, went far beyond the government’s compelling interest in protecting the child from being exposed to disparagement between the parents. The Court of Appeals reversed and remanded.8

Thus, a parent—even those in divorce and paternity cases under a trial court’s jurisdiction—have the First Amendment right to speak about the other parent and the legal process, so long as it is not within earshot of the child(ren). To the extent the trial court prohibits such communication, it is violating the parent’s First Amendment rights to free speech and that it is an unconstitutional prior restraint of free speech. These and other constitutional protections afforded to parents cannot be abridged by trial courts even in the nastiest of domestic cases.

We hope this blog helps you understand what you can do insofar as discussing your domestic case. Ciyou & Associates advocates understand and argue the constitutional dynamics of any given case it has to in order advance its client’s position to help meet their objectives in all domestic litigation. We hope you find this blog helpful to your understanding of the limitations, as well as your rights under the First Amendment in your domestic case. If so, this blog has met its educational objective. This blog is written by Ciyou & Associates, P.C. advocates. It is provided as general educational information. It is not intended to be relied upon in any given case, nor is it legal advice. It is an advertisement.

  1. U.S. Const.amend I.
  2. WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind.Ct.App.2017) (quoting Alexander v. United States, 509 U.S. 5444, 550 (1993).
  3. These protections and rights of the First Amendment are applicable to the States through the Due Process Clause of the Fourteenth Amendment. Secondly, the right to peaceably assemble is found in article 1, section 31 of Indiana constitution. Helton v. State, 624 N.E.2d 499, 504 (Ind.Ct.App.1993).
  4. Near v. Minnesota, 283 U.S. 697 (1931).
  5. In re Paternity of G.R.G., 829 N.E.2d 114, 124 (Ind.Ct.App.2005).
  6. Shak v. Shak, 484 Mass. 648, 144 N.e.3d, 374, 277 (2020) (“Non-disparagement order are, by definition, a prior restraint on free speech.”).
  7. In re Paternity of K.D., 929 N.R.2d 863 868 (Ind.Ct.App.2010)
  8. Israel v. Israel, 169 N.E.3d 170. 179 (Ind.Ct.App.2022).

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