The Volokh Conspiracy
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In Israel v. Israel, decided today by the Indiana Court of Appeals (Judge Mark Bailey, joined by Judge Edward Najam and Chief Judge Cale Bradford), the trial court had issued a divorce decree that provided, among other things,
The parties shall refrain from making disparaging comments about the other in writing or conversation to or in the presence of [Child], friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone. Disparaging remarks include[e], but are not limited to, negative statements, criticisms, critiques, insults[,] or other defamatory comments. The parties shall not say or do anything or allow a third party to say or do anything about the other party in [Child's] presence that may estrange [Child] from the other party or impair his regard for the other party. The parties shall not involve [Child] in matters that are adult matters and that solely involve the parents or the other parent.
Unconstitutional, the appellate court held:
There is a compelling government interest "in protecting children from being exposed to disparagement between their parents." To the extent the non-disparagement clause at issue in this case prohibits each parent from disparaging the other in Child's presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment. Father does not contend otherwise.
However, we agree with Father that the non-disparagement clause in this case goes far beyond furthering that compelling interest to the extent it prohibits the parents from "making disparaging comments" about the other in the presence of "anyone" even when Child is not present. Thus, the following portion of the first sentence of the non-disparagement clause [the only portion Father challenges -EV] is an unconstitutional prior restraint and must be stricken: "… friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone."
Congratulations to Alexander N. Mosely and Bryan L. Ciyou of Ciyou and Dixon, P.C. for their victory on this point.