The Volokh Conspiracy
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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).
