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Birth Mother Ordered Not to Post Photo of Deceased Adopted Child

When she did post such a photo, she was arrested and prosecuted -- a remarkable case from two years ago, which I just learned about.

Sabrina Stone gave her infant son up for adoption, but shortly before he turned two, he tragically drowned in his new family's (the Russells') swimming pool. Stone learned about this (the Russells are suing the hospital claiming that it wrongly informed her of this), and was understandably upset.

According to the Russells, Stone threatened them and their other child and other family members; she came to the funeral home and wrote her name several times in the viewing book, listing herself as "bio mother"; and she posted allegedly "stolen pictures" of the son. The Russells then got a restraining order forbidding Stone from contacting the Russells, but also providing that,

Defendant shall not post any pictures of the minor child on social media, including Facebook.

Nor was this limited to posting copies of any outright "stolen" pictures (if any were indeed physically stolen): It covers any pictures (presumably including, for instance, the one publicly available on the funeral home's site), with no regard to whether the posting is "fair use" under copyright law -- which it almost certainly would be, given the noncommercial use and the lack of any effect on any market for the photo.

And the Oklahoma legal system was quite serious about this: When Stone did post such a picture, she was arrested for violating the order, and prosecuted and convicted. The arrest warrant was based on Stone's posting "pictures of the deceased child on face book," as well as "several post[s] and comments about the situation," not on any allegations of threats, violence, or the like.

Seems like a pretty clear First Amendment violation: There is no First Amendment exception even for posting pictures of living children who are entirely unrelated to you (e.g., a photo you take at a park). Posting a picture of a dead child whom you have good reason to mourn -- or even when you think you have reason to fault someone for his death -- is surely constitutionally protected. Whatever Stone may or may not have done to the Russells that warranted a restraining order generally, I can see no basis for a speech restriction like this.

As I mentioned, the injunction is a couple of years old, and I'm not sure whether Oklahoma law provides any avenue for vacating it now. But I learned about it very recently, and thought it was worth noting as an illustration of the kinds of speech restrictions that are often issued by trial courts (on top of the others that I've blogged about in recent years).

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  • Sandyfeet101||

    I agree that it should be looked into. Hopefully a goodhearted attorney in her area can pick this up. I can feel for the adopted family and their pain and horror of someone they thought faded into the woodwork coming back up and embarassing or offending them at the service (maybe should have has that private, not published..?) - however regardless of a woman's choice to give up their baby, for a number of reasons I won't speculate about or judge, there is never a choice to give up loving the being she helped produce. Sad story all around, but taking her rights of free speech away is another form of abuse - as if she hadn't already gone through enough that forced her hand a few years ago.

  • AdoptAuthor||

    Sandyfeet - You do not know the details. Many infant adoptions today are open or at least "identified" - where expectant moms chose and meet the parents they en trust their child to. So do not assume they would horrified by her "coming back."

    Anyone who adopts, adopts a child who already has a family so it should be no shock whether the adoption is open or not. Adoption is not ownership. To love a child is to love his family, not treat them like criminals!

    Russells - you should be embracing this woman and begging her forgiveness for violating her trust in you, not having her inpriosned. SHAME ON YOU!

  • Someone Who Knows||

    See the last comment.

  • AdoptAuthor||

    SandyFeet - I assume you don't know any of the parties involved and thus it is very interesting that you "feel for" the adoptive family and their embarrassment.

    It's very east for the general public to identify with the longing for a baby and the myth of adopters as saviors. It is far more difficult to comprehend that women who are convinced to let their babies go to loving home - many of whom are coerced or exploited in their time of temporary crisis - are also just as human.

    Society encourages expectant mothers to make the "loving" "selfless" and allegedly "brave" choice to let their babies go so that they may may allegedly have a "better life." Yet once they do the "right" thing they are then chastised, ostracized, marginalized, rendered deviant or invisible. This, in contract to adopters who are glorified and viewed as noble as they post their adoption journeys on social media first garnering sympathy for their childlessness and then touted as saviors.

    Mothers who lose babies to adoption suffer lifelong grief despite going on to become teachers, mothers, attorneys, your next door neighbor! They deserve a great deal more compassion.

  • Johnny Oh So Reasonable||

    I can tell you that Sabrina wants her First Amendment right of free speech restored, and if there is an Oklahoma Attorney who can help her with this specialized issue, post your contact information.

    Believe me, Sabrina will get back to you.

    I will also add that she is a spunky, incredible, and unbreakable young mother.

  • ||

    I like your name.

    And good luck to Sabrina.

  • AdoptAuthor||

    This is the cruelest, most heartless thing I have ever heard!!

    This mother lost her precious son at the negligent hands of those she entrusted his care to!

    The Russells are the ones who should be in jail, not the mother of this child! SHAME ON YOU! Cold-hearted baby killers!!

  • Someone Who Knows||

    See the last comment.

  • ||

    I know judges are not civilly liable for official actions, but how does Title 18, Section 241 of the US Code interact with an official judicial act that violates the Constitution?

    When an illegal order to violate rights is given and carried out, that is a conspiracy against rights, going by a plain English reading of the statute.

  • Kyfho Myoba||

    The 1st amendment has lots of avenue for vacating it. It is already vacated. It was void from the beginning. It is null and of no effect. The court that issued it was created by the Oklahoma legislature, which neither had nor has any authority to restrict Stone's speech.

  • Eugene Volokh||

    I appreciate the argument, but (rightly or wrongly) under the collateral bar doctrine -- which many states follow, as do the federal courts -- the invalidity of a court order is usually not a defense to a prosecution for violating it. People are supposed to challenge the order on appeal (though of course they often don't have lawyers who can do it, especially since the orders are gotten in civil cases, where no court-appointed lawyer is provided), rather than violating it and then challenging it when they're prosecuted. Again, you may like this or not, but that is the dominant rule today in the U.S.

  • Johnny Oh So Reasonable||

    Tell Sabrina it's "null and void" when she's already been CONVICTED and JAILED for violating this unconstitutional "null and void" protective order.

    She needs an attorney. If you know an attorney in Oklahoma...if you know somebody who knows an attorney in Oklahoma...somebody who will defend this defenseless and oppressed young mother...do something to help her.

  • AdoptAuthor||

    Eugene Volokh - Please tell Sabrina that there are support groups for mothers who have lost children to adoption. Some of us, like Sabrina, lost our children TWICE! If we cannot offer legal help, we can at least surround her with love and condolences from those who have walked a mile in her shoes.

    One such group is Concerned United Birthparents which she can google. If she is on Facebook, there are several birthmother support groups, or have her google and contact me: Mirah Riben. I am on Facebook and my website is - http://mirahriben.blogspot.com

  • ||

    I am Sabrina stone mother and I know the whole truth about the adoption n I will tell u this the Russell said to there was no father and there was for all 3 kids the Russell got keon and Denise sister got Kendra and Melissa white has jaxston we live in a small town called McAlester Oklahoma and they are all about money here Sabrina deserve to be a mom but nnoone want that I gave my kids to my mom because my x husband did not want to work all I want is for Sabrina to have the changes to be a mom and for the state to live her alone see the Russell are good friends with people in the dhs in Hugh's country and Pittsburg country so it was done wrongful and I feel. The Russell are running out of money because Denise is on diet pills since her surgery that they r doing this so will someone plz help Sabrina email me and I will give u Sabrina into if someone can help us and not cause any more pain for my daughter I don't care what anyone says if u carry a child for 9months and give birth u are still the mother thank u and have a good day

  • Someone Who Knows||

    Heavenly ... learn how to spell. Them being "friends" with people is DHS May Be your excuse for Keon, but what's your excuse for the other 2 kids? Also, let's remeber, your the one who sent the email to the head of DHS and got this ball rolling.

  • Someone Who Knows||

    While you may see this as a violation of her 1st Amendment; the issue is this. #1. The child was a minor. Therefore, that minor's parents have the right to dictate who posts what regarding images of their child. #2. This "bio mom" has not 1, not 2, but 3 children that DHS has had to step in and take because she is unstable and has severe mental health issues and poses a danger to the children. She willingly signed her rights away to 3 children. She has no legal right to even speak their names let alone post pictures of them. #3. She is pregnant again and more than likely this child will be taken as well.

    I honestly think you should look more into things before you post about them. She had been asked numerous times to stay away and to stop with her nonsense. She continued to harass and stalk the adoptive parents. The posts that she posted with pictures of the deceased child were negative and threatening to the adoptive parents. And I can assure you the pictures were "stolen" off of their Facebook pages because she didn't have any of him bc she hadn't had him. All of the children she gave birth to, were taken at birth. She can't hide behind the 1st amendment when it is being done in a malicious manner. Defamation, harassment, and stalking are all criminal acts.

  • Eugene Volokh||

    Someome Who Knows: Do you have any authority for your proposition #1? As I mentioned, parents generally don't have the right to stop others from posting pictures of their children (setting aside child pornography or certain kinds of commercial use); but if you have some contrary authority, I'd love to hear it.

    Likewise, as to #2, do you have any authority for the proposition that people who lose their parental rights lose the "legal right to even speak their names let alone post pictures of them"? I don't know of any such rule, nor do I know how that rule would be consistent with the First Amendment, but I'd love to hear what you're basing your argument on.

    #3 seems rather irrelevant to the First Amendment question.

    As to defamation, if she had been ordered not to defame the parents, that would be a different matter -- but she was ordered not to post the child's picture, no? Where's the defamation in that?

    And as to harassment and stalking, as then-Judge Alito pointed out in Saxe (3d Cir. 2001), there is no "harassment" exception to the First Amendment -- nor do I know of any laws that would purport to make any posting of a deceased child's photo "harassment" (or "stalking").

  • Johnny Oh So Reasonable||

    Eugene...what do you think of somebody trying to overcome the collateral bar by making an equitable argument? Something to the effect, "Yes, I missed the deadline to appeal but this is plainly unconstitutional--please consider all these detailed arguments why, attached--so please use your equitable power to overturn your own unconstitutional order."

    Think that would fly? I'm spitballing, here, but what an amazing opportunity to ask you, Professor, and have this discussion in this public forum.

    As for the proposition that the birth mother doesn't even have "the legal right to speak their names" because the children were given up for adoption...Wow. Just...wow. I'm stunned by that heartless and legally bereft assertion. Morally bereft, too.

    I guess that should be known henceforth as the "Russell Rule."

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