6 Months in Jail for Speaking to Newspaper About Your Court Case

In most states, if a court issues a gag order and you don't appeal it, you can go to jail for violating it even if you later argue that it violates your First Amendment rights.

From In re K.P. & C.P., decided yesterday by the Colorado Court of Appeals (Judge David Yun, joined by Judges Matthew Grove and Dennis Graham:

The juvenile court found C.P., a/k/a K.A. (K.A.), in contempt for violating permanent civil protection orders barring her from discussing her children's dependency and neglect case with most third parties. At a hearing that occurred several months after it had issued the protection orders, the court entered its judgment of contempt and sentenced K.A. to six months in jail. K.A. now appeals only the contempt judgment, arguing that the protection orders violated her constitutional right to free speech and that insufficient evidence supported the court's judgment of contempt.

This appeal therefore requires us to determine whether K.A., in appealing the contempt judgment, may collaterally attack the lawfulness of the underlying protection orders. We conclude that she may not. Under the collateral bar rule, a party must obey a court order—even an unconstitutional order—unless and until that order is stayed, set aside, or reversed on appeal. With rare exceptions, a party cannot challenge a court order by violating it. This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order….

Here's the factual and procedural story:

This contempt proceeding followed K.A.'s contentious divorce from C.P., the father of their three daughters, K.P., L.P., and M.P., as well as the family's involvement in two dependency and neglect cases….

In 2017, the year before the divorce became final, the Arapahoe County Department of Human Services filed a petition in dependency and neglect alleging that the father was sexually abusing the two younger girls. A jury, however, found that the children were not dependent or neglected.

Two years later, the Department filed a second petition, this time asserting that K.A. had coached the oldest daughter into falsely reporting sexual abuse by her father as part of K.A.'s pattern of emotionally abusing the girls. A jury found all three girls dependent and neglected as to K.A., and the juvenile court ordered her to comply with a treatment plan designed to give her "insight into how [her] behaviors alienated and emotionally harmed her children." K.A. appealed the adjudication, but a division of this court affirmed it….

Soon after, in April 2020, K.A. posted a "Petition to Protect CHILDREN!" on the website change.org. In this posting, K.A. alleged that, despite her daughters' disclosure of sexual abuse by their father, protective services, law enforcement, and mental health professionals had all insisted that the girls live with him. The petition included a video of the youngest daughter being interviewed by K.A. and making an outcry of sexual abuse, as well as a video of the oldest daughter's journal entries disclosing sexual abuse by her father—evidence that K.A. had never disclosed to the Department or the police.

In May 2020, the Department moved for a protection order under section 19-1-114(2)(a), C.R.S. 2021. It alleged that K.A.'s posting invaded the children's privacy and showed that "any progress in her treatment plan was feigned" and that she refused to "own[] that she coached her children" into making outcries of sexual abuse against their father. The court agreed that K.A. was not acting in the girls' best interests and granted the protection order (the May protection order). Among other things, the court required K.A. to take down the petition, prohibited her "from posting on social media sites information related to the Minor Children and the allegations of abuse or neglect associated with this case" (including doing so through third parties), and obligated her to provide the Department with the videos attached to the change.org petition. The court warned that her failure to comply with the order could "result in contempt proceedings and up to six months in jail."

But K.A. refused to take down the petition, added copies of the girls' handwritten notes when the website hosting the video took it down, and continued to post about the allegations on social media, as well as on her own website. As a result of K.A.'s defiance of the May protection order and her failure to engage in her treatment plan, the Department filed two motions: one for a contempt citation against K.A., and another to terminate her parental rights. The juvenile court scheduled a hearing on both matters over two days in late August 2020.

On the first day, the court found beyond a reasonable doubt that K.A. had willfully violated the May protection order. It delayed sentencing her for contempt until after the termination hearing, which was set to continue through the next day. K.A., however, failed to appear (or to have counsel appear on her behalf) the following morning, so the court issued a bench warrant and did not proceed with sentencing. At the end of the hearing, the court terminated K.A.'s parent-child legal relationships with her three daughters. The court also sealed the court records, stating that no party was to release any filing in the case to any third party or ask other people to post anything on the internet regarding the case….

The juvenile court [later] … narrowed the September protection order so that K.A. could communicate about the case with her therapists and doctors, as well as her attorneys (the December protection order). The December protection order says,

Because this Court is certain that more harm will occur from future postings regarding the allegations of sexual abuse in this case, the Court first ORDERS that [K.A.] shall be restrained from posting any information related to the allegations of abuse or neglect which were investigated during this case on any website or social media outlet. This includes posting through a third party, which is subject to the provisions outlined above, as [K.A.] may be held liable for directing any third party to post such information. Further, the Court further ORDERS that [K.A.] shall be restrained from discussing the allegations of abuse or neglect which were investigated during this case or providing any case-related information, including but not limited to any documents within the case file, to any third party who does not have a legal duty of confidentiality to [K.A.] Thus, [K.A.] may discuss this case with her attorneys, therapists, or doctors, but she may not direct these third parties to release or disseminate case-related information to any other third party or to the public.

Though the court recognized K.A.'s First Amendment concerns, it concluded that the December protection order passed constitutional muster. The order, the court explained, was the least intrusive means necessary to serve the government's compelling interests in protecting domestic abuse victims and the privacy of children involved in dependency and neglect proceedings. The court further found that, "based on the history of this case and [K.A.'s] repeated and relentless dissemination of the false allegations of abuse, Father and all three children will undoubtedly suffer great, grave, and certain harm as a result of continued expression." …

On December 31, 2020, the father moved for a contempt citation against K.A. He alleged that an article published three days earlier in an online edition of the Colorado Springs Gazette includes details about the dependency and neglect case that K.A. must have shared, either directly with the author or through a third party, in violation of the juvenile court's protection orders.

The article, titled "A sick mom, alone in a cell, on Christmas Eve," does not include anyone's name, but it does include, among other things, (1) K.A.'s experience of having COVID-19 in jail {K.A. was serving time in jail on prior contempt citations that are not part of this appeal}; (2) K.A.'s "unwavering belief" that the father sexually abused the children; (3) that K.A. is in jail for seventeen months for violating a "gag order" in the case; and (4) that K.A. wrote to her friend, "A system shouldn't be able to destroy someone's life. Punished for protecting, for speaking truth, for loving my daughters so much—I would do anything for them." Even though the case was sealed, the week after the article's publication, the juvenile court received two voicemail messages urging it to release K.A. from jail….

The appellate court applied the so-called "collateral bar" rule as set forth in Walker v. City of Birmingham (1967):

[In Walker], Birmingham officials obtained an injunction prohibiting Dr. Martin Luther King, Jr., and other civil rights protesters from parading without a permit. Rather than appealing the injunction, the protesters disobeyed it. They were subsequently charged with violating the injunction, fined, and sentenced to jail. The Court noted that the ordinance, which provided the basis for the injunction, "unquestionably raise[d] substantial constitutional issues" and that "[t]he breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question." Nonetheless, the Court ruled that the protesters could not collaterally raise those constitutional issues in the contempt proceedings….

The Court declared, "[t]his case would arise in quite a different constitutional posture if the [protesters], before disobeying the injunction, had challenged it in the Alabama courts, and had been met with delay or frustration of their constitutional claims." Thus, despite the potential illegality of the injunction, the Court upheld the protesters' convictions because the protesters "were [not] constitutionally free to ignore all the procedures of the law and carry their battle to the streets." The Court observed that "no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion." …

While we acknowledge that K.A. has raised substantial constitutional issues regarding the protection orders, the juvenile court's order "must be obeyed by the parties until it is reversed by orderly and proper proceedings." Because K.A. decided to disobey the protection orders rather than challenge them on appeal, she cannot collaterally raise those constitutional issues in this appeal….

[One exception is that] "court orders that are transparently invalid or patently frivolous need not be obeyed." But to protect the judiciary's dignity and authority, "we must indulge … a heavy presumption in favor of the validity of every court order." "Only when there is no colorable, nonfrivolous argument to support the order being reviewed should a contemnor be excused from his disobedience of the order." We cannot say that no colorable, nonfrivolous argument supports the validity of the juvenile court's protection orders. See In re Marriage of Newell (Colo. App. 2008) (concluding that a parent's exercise of free speech that "threatened the child with physical or emotional harm, or had actually caused such harm," could establish a state interest sufficiently compelling to curtail the parent's free speech rights)….

I'm not sure the collateral bar rule is sound. It's true that it's important for the rule of law that people generally follow court orders, but it's also important that people generally follow statutes—and yet we allow people to violate a statute and raise a First Amendment defense when they're prosecuted, rather than requiring them to challenge the statute up front. Why not do the same for court orders? Indeed, some states, such as my own California, reject the collateral bar rule and do allow people to raise a First Amendment defense when challenging a contempt prosecution for violating an injunction, and the skies haven't fallen. (California has many problems, but I don't think they stem from the collateral bar rule.)

Moreover, many civil defendants can't afford a lawyer, and, unlike in criminal cases, don't have court-appointed lawyers; they may thus find it hard to appeal an injunction. It's only when they are prosecuted for contempt, and are entitled to a court-appointed lawyer if there's the possibility of jail time, that they can realistically raise their First Amendment claims.

But in any event, rightly or wrongly, most jurisdictions do follow the collateral bar rule. So if you think the injunction against you violates your First Amendment rights, you need to appeal promptly or else forfeit your First Amendment claim.

Comments

[Longtobefree]

"This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order…."

Anybody told this to the democrats yet?

[NOVA Lawyer]

Look at Longtobefree approvingly quoting an authoritarian opinion that takes rights from citizens if they don't first ask permission if they may exercise them.

[Squirrelloid]

How are court orders any different from laws in this regard? Yet you frequently have to violate a law to even challenge it.

[not guilty]

Court orders are appealable in the first instance.

[NOVA Lawyer]

"This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order."

This is a stupid sentence in this context. If the order violates the constitution, it isn't a lawful order and it is asinine that someone should be punished for violating it.

Every person necessarily "determine[s] for themselves when and how to obey a court order" with this rule or without. What the judge is actually concerned about is whether there are consequences for not following a court order when and how the court determines they should.

In a free society, a person should be allowed to make a judgment that the order is unlawful and violate it with full knowledge that if higher courts disagree they will be punished. If they prove to be right that the order was unconstitutional, and so void ab initio, then it is wholly unjust and incompatible with a free society that they do jail time. If they guess wrong because the order is, in fact, permissible under the constitution, then, sure, jail time. That's how you prevent people from "determining themselves" what orders they will and won't obey without consequence (because people are going to choose whether they'll obey the order regardless and, as a society, we actually don't want people to obey unconstitutional orders). Creating artificial hoops to jump through to vindicate one's constitutional rights is atrocious.

You didn't say mother may I, so you lost your constitutional rights. Gross.

[Stephen Lathrop]

NOVA — In your preferred constitutional scheme, how do you reckon irremediable, permanent damage to targeted parties? Just road kill?

[Squirrelloid]

'Just following orders' isn't an excuse for military personnel who obey an illegal order, and that would seem to have potentially drastically higher consequences for disobeying than a court order.

Heck, how is this any different than laws? Courts don't seem to have a problem with people violating unconstitutional laws in order to bring a challenge - if the violator guesses wrong, they go to jail or get fined or whatever the consequence is.

Court orders are not somehow special. Illegal or unconstitutional court orders are no order at all.

[Brett Bellmore]

In regards to laws, the judiciary's stance on unconstitutional laws is,

"An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed." Norton v. Shelby County, 118 U.S. 425 (1886)

Numerous other courts have expressed the same sentiment: Unconstitutional 'laws' aren't really laws, and never were, even before the courts identify them as such. They're void from the moment of their origin.

Why would court orders be any different? I suppose only because it's courts deciding the matter...

[Davy C]

Right. I would argue that "the orderly and efficient administration of justice" is jeopardized much more by the violation of the Constitution that by the person ignoring the unconstitutional order. I would argue that " to protect the judiciary's dignity and authority" it is necessary that violations of unconstitutional orders not be prosecuted.

[NOVA Lawyer]

This.

[Stephen Lathrop]

You left out the cost to third parties, which the orders were protecting, after at least considerable adjudication.

[Squirrelloid]

Are you really arguing those are categorically larger than the consequences of military personnel refusing to obey an order they feel is illegal?

And let's be clear, if they already chose to violate the order, whatever 'protection' was being provided to 3rd parties is already moot. The question is whether the order was even constitutional in the first place. If it wasn't constitutional, those 3rd parties didn't deserve protection.

[Stephen Lathrop]

Defamation with actual malice is never protected. Whatever the legal posture of the case may be, that is what is happening. The question was adjudicated, prior to the order. The order was there to make it stop.

[NOVA Lawyer]

You are confusing whether the violation of an unconstitutional court order should result in jail time versus whether this particular defendant was doing bad things. I don't know anything about the specifics. But your interpretation of the facts defeats your argument in favor of the court's judgment.

You say the defendant was engaging in defamation with actual malice which, as you point out, is not constitutionally protected. So, of course, the defendant may not do that without consequences, to include jail time for violating a court order. But the whole point is that the defendant argues that the court order was unconstitutional and the court says she can't litigate that issue. The court has ruled that if you engage in constitutionally protected speech you are nonetheless subject to jail time if you didn't appeal the original (unconstitutional) court order prohibiting you from engaging in that speech.

If the defendant is wrong, she litigates the constitutional issue, loses, and does the jail time. (The third parties' rights are vindicated just the same as if the constitutional issue is never allowed to be litigated. So, what's your point again?)

If the defendant was right, why should she go to jail for engaging in constitutionally protected speech?

Just stipulating that her speech was not constitutionally protected avoids the question at issue.

[Stephen Lathrop]

(The third parties' rights are vindicated just the same as if the constitutional issue is never allowed to be litigated. So, what's your point again?)

My point is that actual damage is not mitigated by, "vindication."

NOVA — The law gave the court power to prevent further damage. You want further damage inflicted, by repetition of constitutionally unprotected defamation, which had already been adjudicated and prohibited by the court. Somehow, that becomes a question of rights denied to the perpetrator? Somehow, untold further suffering you would permit for the victims becomes, "vindication?"

That strikes me as incomprehensible moral turnabout.

Let's assume you have children, and you do not sexually abuse them. Will you feel, "vindicated," if your wife gets a free pass from a court (which knows your wife is lying) to coach your children to say you did abuse them sexually, and to publish repeatedly world-wide that your children said that, including re-publishing it after the court proceedings?

Do you suppose would-be legal clients ever Google your name? How will you get a chance with them to explain about your, "vindication?" Good luck.

[NOVA Lawyer]

You want further damage inflicted, by repetition of constitutionally unprotected defamation.

This misunderstands, at best, the legal question at issue. You keep confusing the result with the process.

Let's take your hypothetical.

Scenario 1, your preferred world: The court enters an order prohibiting the libelous statements. Wife repeats the libelous statements. She is charged with criminal contempt for violation of the order. She raises a constitutional challenge to the order, but the court declines to address it and she goes to jail.

Scenario 2, my preferred world: The court enters an order prohibiting the libelous statements. Wife repeats the libelous statements. She is charged with criminal contempt for violation of the order. She raises a constitutional challenge to the order. The court considers it, but her speech was unprotected libel. She goes to jail.

Until you understand that the result is the same for the scenario you describe, you'll continue to misunderstand me and, consequently, to misconstrue my arguments and make unwarranted suppositions about my motives and/or level of callous disregard for this poor father.

Now consider this hypothetical, let's assume you have children and your ex had abused them. The court enters an order prohibiting you from making true statements regarding that abuse, including to warn others to protect the children. The order has no valid constitutional basis. Because of limited resources, you don't challenge the order including because you know you are constitutionally permitted to say true things. You are charged with criminal contempt. You point out that your speech was constitutionally permitted and that the court order was unconstitutional.

Scenario 1, your preferred outcome: You go to jail because you can't challenge the order in the criminal proceeding.

Scenario 2, my preferred outcome: You raise a constitutional challenge to the order in the criminal proceedings and, because the order was unconstitutional and your speech constitutionally protected, you are exonerated and don't go to jail.

Why do you prefer the outcomes of the two Scenarios 1 more than the outcomes in the two Scenarios 2?

I think you don't, you simply don't understand the consequences for which I am advocating. You continue to seem to think that I want this defendant not to go to jail. No, I want her to get due process and (if she violated a court order by engaging in libelous speech) to do jail time.

[Gandydancer]

"...how do you reckon irremediable, permanent damage to targeted parties?"

First, "..."reckon" doesn't mean what you appear to think it means.

And you fail to explain why "irremediable, permanent damage to targeted parties" requires more "reckoning" when you violate a court order than when you violate a law.

This is just special pleading by the kritarchs.

[NOVA Lawyer]

"how do you reckon irremediable, permanent damage to targeted parties?"

If the order was unconstitutional, how has any third party been "irremediabl[y], permanent[ly] damage[d]"?

If the order was constitutional, the person who violated the order suffers the consequences that ordinarily follow from violating a valid court order. I don't understand what your issue even is.

[Raccroc]

Out of curiosity, do you know if anyone has challenged the collateral bar rule federally on any sort of constitutional grounds?

Seems odd, but not at all surprising, that courts regularly punt statute challenges on ripeness, standing, and all sorts of various procedural grounds without a prior violation, but then they go the other direction when it coming to their own law-by-decree.

[John F. Carr]

During the Civil Rights era a city down South got a court order against a demonstration. The Supreme Court upheld the charges of violating the order because the defendants had had an adequate opportunity to raise constitutional defenses. I think the order was some days before the march. As I recall, the case left open the possibility of a constitutional defense if there had not been enough time to challenge the order.

I forget the citation but surely somebody here recognizes the case.

[Eugene Volokh]

Raccroc: That's the Walker v. City of Birmingham precedent on which the court relies.

[Raccroc]

Thanks. I will certainly check it out.

[Stephen Lathrop]

Another discussion of 1A issues which fails to note one of the most striking and significant aspects of the case. All of this alleged calumny—calumny allegedly proved beyond reasonable doubt—has been published world-wide. That is a god-awful fact of the case for the husband and the kids. Shouldn't that get not only pointed mention, but perhaps some specific legal consideration?

So many folks think the internet is just so much talk. Which is utterly wrong as a matter of fact, and as a matter of influence, consequence, damage, and duration. There is an urgent need to begin to break the news to Joe Keyboard that when he publishes world-wide online, he should not expect to be treated by the law as a mere gossip.

[Raccroc]

"Which is utterly wrong as a matter of fact,..."
I am sorry, but something does not become "fact" just because you declare it so.

The internet is mostly just so much talk is a very large part is mere gossip. Just because it has the potential to reach a much larger audience or do more damage does not change that.

Most people on social networks don't have the follower of a Kardashian or a Musk and are not publishing "world-wide", rather they are publishing to a small group of a few dozen to a few hundred online followers or people who share a common interest (such as this particular forum). Much like the rumor mill in at a company which can spread water cooler talk throughout like a wild fire, people's online posts can be reposted, picked up by other media, and otherwise go viral.

Take this women as an example: You are only reading about her posts because a law professor posted an article to a national magazine's website about about a Judicial ruling in a court of appeals that interested him. There is no way should could have ever predicted that. So, why should she suffer greater consequences than if she had simply spread the "gossip" around town, a local paper picked it up, and then it went national?

The short term consequences of spreading gossip to your co-workers or class mates can be devastating, regardless of what media or method is used. The long term consequences are no different than any other publication which can be indexed, archived, and retrieved.

[Stephen Lathrop]

The internet is mostly just so much talk is a very large part is mere gossip. Just because it has the potential to reach a much larger audience or do more damage does not change that.

See!^ That depressingly commonplace foolishness is why nations can't enjoy nice things, like utopian internet policies for everyone.

Then, with redoubled incomprehension, this person writes this:

Most people on social networks don't have the follower of a Kardashian or a Musk and are not publishing "world-wide", rather they are publishing to a small group of a few dozen to a few hundred online followers or people who share a common interest (such as this particular forum). Much like the rumor mill in at a company which can spread water cooler talk throughout like a wild fire, people's online posts can be reposted, picked up by other media, and otherwise go viral.

That remarkable paragraph is all about intending one thing, anticipating another, and pretending there is no connection between them.

Raccroc, meet Libel. Libel, this is Raccroc, who is struggling. Raccroc has a bit of comprehension trouble, and is in the marginal range on noticing. Libel, I think you will find Raccroc an agreeable companion.

Raccroc, seriously, you are not just gossiping on the internet. Not unless you are using a private service like email. Whomever you defame by publishing, twenty years hence, can get tossed from a chance to be a government minister in Singapore, when Singapore Google's the name of the candidate, and brings up your long-forgotten, lying, defamation. At that point, it does not matter that you did not expect your actual malice to go half way around the world. It only matters that it could do that—do that predictably, in a routine and commonplace way—which you knew, and disregarded, and thus enabled.

Which makes you king of the idiots. And an absolutely deserving target for a whopping judgment against you, if you are not judgment proof.

But because so many people as unaware of their responsibilities as you are, and comparably heedless, do happen to be judgment proof, it is also wise legal policy—and legally just besides—to hold your publisher responsible too. It was the publisher's activity, not only yours, which made your idiocy so powerfully damaging.

The publisher was even trying to make money at it. Absent your publisher's energetic co-participation, your picturesque water cooler fantasy would have been much closer to reality.

To be completely fair to you, absent your publisher's participation, you would not have been such a fool for so heedlessly grabbing one of the world's most dangerous power tools, and waving it around as if it were a toy squirt gun. It was the publisher who put that power tool in your untutored hands. Publishers that irresponsible deserve to be sued even more than the folks who invent the lies. They deserve to be sued for not wisely counseling people like you, when they clearly do not know any better.

But back to things as they are. How could you know that would happen? The notion of libel does not care if you can predict the future. The notion of libel is that when you do it, YOU are responsible, no matter how it happens, when it happens, or by what subsequent happenstance it happens.

If your knowingly false and damaging publication harms someone, it is too late then for, "OMG!, no harm no foul." You already did the harm. It exists. It is real. It has cost money, or it has hurt lives and reputations, or it has even cost lives. It is a big world out there, full of harsh surprises. Sticking malicious lies into a place like that only makes things worse, never better.

You might be exclaiming, "How unfair that is to me, that is not what I intended! How can I protect myself?" (Or you might be exclaiming, "How unfair that is to me. I want what I want." Which would take this discussion in a different direction.)

Self-protection is simplicity itself, a three-step process:

1. Ask yourself, "Is what I am about to type, say, post, potentially damaging to someone?" Everyone can answer that question, intuitively. Just decide ambiguous cases on the side of caution, to stay safe by not publishing. Remember also, if everything you say is clearly opinion, and not factual, there can be no libel. It is easy. It is how professional editors do it all the time.

2. If you answer yes to the question above, and you still do want to publish, shift gears, and get ready to treat what comes next as important business. Ask yourself, "Am I certain that anything I say which looks factual can be proved in court?" Which is to say, do you have irrefutable evidence your facts are true, evidence which will not go away, nor rely on anyone else you cannot count on. Plus, do you have the will and the means to defend yourself in court if you get sued?

3. If the answers above are, "Yes," to number one, and, "No," to number two, then do not type it, or post it, no matter what. Just forget it. Move on to something else. It costs you nothing.

There is no harm in that. That is a method to prevent harm.

Keep in mind, the kind of publication we are talking about is not constitutionally protected. You are not being punished by being required to tell the truth, if what you would say otherwise would be false and damaging.

Once again, think of internet publishing as an extremely powerful, but potentially dangerous tool. Even novices can handle it safely, if they take account of their inexperience, and do not try to push the tool to the limit.

You want to go on line and publish? Treat what you have in front of you as considerably more dangerous than the kind of chain saw loggers use for felling big trees. Give that some thought. Learn how to use the tool safely. Rule number one: when in doubt, don't push it, just back off.

When you publish, you do it in the real world. Not in some imaginary water cooler world made of limitless freedoms, where no one ever gets hurt, and everyone enjoys rights so perfect that no one needs to vindicate them. That real world is not like the water cooler world at all.

[David Nieporent]

The only thing that was proved beyond a reasonable doubt was that she talked about her kids' case in violation of a court order.

[Stephen Lathrop]

Nieporent, I guess what you must be telling me is that the two jury verdicts which established relevant facts of the case were decided to a lesser standard of proof?

In which case we have two jury verdicts leading to a court order which was, beyond a reasonable doubt, violated, with a subsequent renewal of offenses of the sort found by the juries. Have I got that right?

I am tentative here because it feels peculiar to me that so many other commenters seems not to notice at all the interests of the dad and the kids. Which I thought were the point of the litigation.

Unless I am right to be tentative because I misunderstand what is happening (which could be, with so many others seeing it otherwise), this looks to me like another among more than a few threads in which EV sticks up a tendentious headline, and commenters march in lockstep, chasing the headline and ignoring the facts.

[NOVA Lawyer]

You seem so outraged by her conduct that you don't care about the legal principle Eugene posted about and that most of the commenters are discussing.

There is no difference for the dad and kids between:

1. The defendant is jailed without being able to raise the defense that her speech was constitutionally protected;

2. The defendant is jailed after raising the defense that her speech was constitutionally protected but the court finds, no, it was unprotected malicious defamation.

You strongly prefer 1, but the only reasons you give are (a) the defendant was doing really bad things (which assumes the result if she is actually allowed to litigate the constitutional issue) and (b) the dad and kids were harmed by what she did (without realizing that harm is no less or greater if she is punished via 2 than 1).

None of your comments seem to engage with the actual issue, but always devolve into "the defendant did really bad things, why does no one seem to care about that!"

I'll stipulate, if she was engaging in malicious defamation in violation of a valid court order, or even if she was engaging in ordinarily protected commentary that nonetheless was validly prohibited by a constitutional court order (court's may prevent some otherwise constitutionally protected speech in various cases), then I am all for her suffering the full consequences (including jail time and civil liability) for violating the court order.

My problem is that the constitutional issue was not permitted to be litigated in her criminal trial, but should have been.

The onus shouldn't be on a person to prove, say, an officer's command was lawful, but our system puts the onus on the government to prove the officer gave a lawful order and the person refused to comply. You seem to be fine with criminalizing failure to obey unlawful orders (at least if the order is given by a judge instead of a police officer). Why do you see these situations differently? Isn't following a police officer's order more important given time and safety issues? And yet, U.S. law (rightly) allows you to disobey an unlawful order from a police officer.

[Stephen Lathrop]

NOVA — You cannot put my point away so easily. There is no constitutional issue.

The mom has not got a constitutional right to re-publish defamatory lies which have already been adjudicated. She does not have that right if the court's order is constitutional. She does not have that right if the court's order is unconstitutional. So the outcome is immaterial of any action to determine whether the court's order is constitutional or not. Either way, she will not win a right the constitution does not protect, to republish defamatory lies.

If for some reason she continues to want to litigate the court's constitutional power, she has to find another way to do it—she cannot create an occasion for the litigation by republishing constitutionally unprotected defamatory lies. And if she wins her litigation to challenge the court's constitutional power, it cannot result in giving her a right to republish constitutionally unprotected defamatory lies.

To make sense of your advocacy I suppose you are trying to to find some roundabout way to overturn the law which denies constitutional protection to published libel. If so, you have company. I think that is what EV is trying to do with his tendentious headline (EV is on record in favor of a right to republish libel). I think widespread support among internet fans for re-publishing libel is why that headline recruited such a like-minded following.

I suggest the facts of this case ought to give pause to those advocates. Put your own family in the place of the dad and his kids. After the damages the mother's publications inflicted on all of them, do you suppose any of them prioritize instead formalistic legal, "vindication?"

[Stephen Lathrop]

NOVA – It occurs to me that this case might be an excellent candidate to illuminate why it matters to distinguish a power for courts to decide, "questions," vs. a power for courts to decide, "cases or controversies." As I consider what has been going on between you and me, it looks like EV posited a, "question," on the basis of which, in your mind and his, the rest of the case got excluded from consideration. I have been insisting the case be considered whole, as a case, not as a question. Perhaps this is a case to show how those two methods may deliver different outcomes.

I am very strongly in favor of the, "cases or controversies," method. I reject the, "questions," method as too likely to deliver injustice to the parties. It seems to me this case illustrates that injustice problem vividly. Facts already adjudicated establish there is a party in the wrong, inflicting injustice on other parties who are in the right. To confine the reasoning to EV's, "question," can have no effect except to redouble the injustice for the afflicted parties, while rewarding the party in the wrong with renewed scope for further afflictions.

If I were a system of justice which routinely delivered outcomes like that, I could never hold my head up, get out of bed, and come to work in the morning.

[NOVA Lawyer]

Stephen,

You sort of identified our disagreement. You are focused on the particular facts of this case. I am discussing the legal question.

I submit, however, that resolution of the legal question does not change the outcome in this case if you are correct about the facts. It just means the issue gets ruled on by a court in this criminal case (beyond a reasonable doubt) rather than taking a civil court finding (preponderance of evidence) as the fact of the matter.

Again, you are so incensed by the behavior of the defendant that you don't want her to be able to raise her constitutional rights as a defense. Perhaps you aren't so sure that you are right about the facts, or you would be sure she would lose on those grounds. And the outcome of this case would be precisely the same. The only difference in outcome occurs if you are wrong about the facts of this case.

So no, I have no agenda to extend constitutional protection to libel. Precisely the opposite. But a person in a criminal case based on alleged libel should be able to raise the issue of whether her comments were constitutionally unprotected libel. If, instead, it was constitutionally protected, non-libelous speech, well then surely we all agree she shouldn't be in jail.

Maybe you should imagine this is a different case, where the defendant's argument that her speech was constitutionally protected might have merit, as you are obviously emotionally entangled in the facts of this case. In fact, let's stipulate that, in fact, the defendat's speech unquestionably was constitutionally protected and the court's order was unconstitutional. This other defendant was telling the truth about another civil litigant's bad behavior, but the court unconstitutionally enjoined her speech. She didn't challenge it in the civil matter, but went on speaking. In a later criminal contempt proceeding, she can't raise the defense that, in fact, her speech was constitutionally protected? She goes to jail for constitutionally protected speech?

[Pavel Petrovich]

This is mere jewish word salad to force goy compliance with jewidical discretion....a rabbinical court. There is no concern for 'privacy' in a public forum, the business of the court is the business of the sovereign people, concealing it is jewish. There is no evidence of harm to kids for the publicity. The scam of predictive harm will come because of free expression is unfounded, just a jewish judge stomping on the goy. American jurisprudence abhors secret tribunals. Just because sexual abuse of kids is not found by a jury, does not mean it is not going on. The word salad is very jewish, court claims that allegations were false, implying mom lied, but only that it was no proven, big difference, pedos exploit this point as a strategy.

First Amendment gives right to express disagreement with a court order by violating it. The rabbinical court uses edicts from the talmud to make goy compliant with tyranny in a black robe ... so jewish, so un-American.

See how the jews have hijacked the courts to bend citizens to their control. Jewmerika.

[Roger S]

<>

Wow. They took her kids away. She probably deserved that. But surely she has a right to complain about it. The kids have no right of privacy against their own mom.

[Gandydancer]

Actually, they do.

[Brett Bellmore]

Not unless they're adult children, they don't.

[TwelveInchPianist]

"This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order…."

This makes no more sense than claiming that people determine when and how to obey the law by being able to challenge a law that they're being prosecuted for violating. But judges are gonna look out for judges.

[Shabbetai Ẓevi]

jews herding the goy.

[Shabbetai Ẓevi]

So the gag order is a 'protection order' ... that is false. A protective order comes with criminal penalty for violation, so this case is misleading as gag orders are only allowed in matters to protect the jury pool. The gag order was prior restraint, quite unconstitutional where no citizen is bound to obey it. Another example of the lack of 14th Amendment protections in the kangaroo courts dealing with children and the state's barbaric belief that clowns in black robes know what is best for others ... hardly law, just the modern version of Animal Farm, 1984, pure communism promoted by the jewish organization known as AFCC.

[EscherEnigma]

"Under the collateral bar rule, a party must obey a court order—even an unconstitutional order—unless and until that order is stayed, set aside, or reversed on appeal."

"Innocence isn't enough" to overturn a guilty verdict.

The courts are really trying to hammer home this week that justice doesn't matter, only that they're the ones with the guns, huh?

[Rossami]

re: "Under the collateral bar rule, a party must obey a court order—even an unconstitutional order ... This is so because the orderly and efficient administration of justice would be jeopardized if parties could determine for themselves when and how to obey a court order"

That's just stupid. The orderly administration of justice is guaranteed by the fact that there are consequences if you are wrong about the court order being unconstitutional. This idea of multiplying the injustice even if you are exonerated is absurd.

[Pavel Petrovich]

absurd = jewish. the way a rabbinical court works on the goy.

[JHR]

Exactly right.

[Stephen Lathrop]

This idea of multiplying the injustice even if you are exonerated is absurd.

That seems to misunderstand the collateral bar rule. As I understand it, after looking it up, for the rule to be invoked there must be two issues, not only one. There is a salient issue, about challenge to the court's order, and a tacit issue, already decided on the side of justice, which the court's order is meant to protect. Fairly obviously, to strike down the protective order as unconstitutional in itself risks jeopardy to the just outcome of the silent issue. So yes, a party can be exonerated for violating the court's order, by use of a process which multiplies injustice which had formerly been adjudicated and mitigated. This case seems to be an example where that could happen.

Not being a lawyer, I was not successful quickly to understand all the twists and turns make possible by that abstruse legal doctrine. I am fairly confident that what I described above is the part which applies to this case.

[Pavel Petrovich]

No surprise the GAL is a jew. Bottom feeder lawyer with no real client, lives as a parasite of the juvey court relying on state funding to feed herself, same scenario played out in all states, the jews feed off of children.

Alison Bettenberg
Alison is currently a GAL and /Managing Partner at Bettenberg & Maguire LLC. Alison has been a GAL in both the Dependency and Neglect and Delinquency cases for 9 years. Alison was in private practice until January 2011 when she joined the law firm of Bettenberg, Sharshel & Maguire, LLC which is the staff model office for Arapahoe County. Alison is the managing partner of BSM where her responsibilities include sitting on the hiring committee and training team, case assignments, supervision of attorneys and case coordinators as well as general oversight of the office.

Her firm is so lame as not to have a website ... telling

[Rev. Arthur L. Kirkland]

I hope these children overcome the hardship of having this loser for a mother.

[Shamie Ervin iv]

Crazy collateral bar rule is what got Martin Luther King thrown in jail. The court order barring him and his adherents from marching was illegal and violated 1A, but he had to challenge it in court to show that it was illegal. He didn't have the time or money to and time was of the essence. So when he and the other protesters marched, he got thrown in jail for contempt. The appellate courts agreed he was barred from relying on 1A by the collateral bar rule.

I say hogwash. The judges watch the other 2 branches. They watch us and everybody else. But who will watch the arrogant ultravires bastards we call judges?

Quis custodes, ipso custodiet.

[Rev. Arthur L. Kirkland]

It appears she didn't speak to a "newspaper" -- which evokes professional newsgathering -- or even to a journalist so much as to a friend, political activist, and now a candidate for elected office who had the connections enable publication of a personal account (or vanity piece) in a backwater newspaper.

Other than that, though, great headline!

[TwelveInchPianist]

Was it the ACLU?

[Gandydancer]

You're an idiot, Kookland. A newspaper doesn't stop being a newspaper because it is in your estimation a "backwater newspaper".

And, no, the word "newspaper" does not evoke images of "professional newsgathering", whatever that might mean, in the mind of anyone except cretins like you. What it actually brings to my mind is the usually fully-deserved epithet "Fake News".

[Rev. Arthur L. Kirkland]

If you don't consider that headline misleading . . . you belong at the Volokh ('we don't need no stinkin' editors) Conspiracy, with the rest of the culture war casualties, awaiting replacement.

[Will Burro]

Was this a statutory order of protection (TRO) or a discretionary, unconstitutional, prior restraint gag order? Anyone? Due process is missing.

[Lee Moore]

It's true that it's important for the rule of law that people generally follow court orders, but it's also important that people generally follow statutes—and yet we allow people to violate a statute and raise a First Amendment defense when they're prosecuted, rather than requiring them to challenge the statute up front. Why not do the same for court orders?

Because - obviously - all co-equal branches of government are equal, but some are more equal than others.

[TheAmazingEmu]

I think there's definitely a middle ground that would make logical sense: The order itself can't be collaterally attacked (in other words, it would remain in effect and any contempt orders would be facially valid), but there's still a viable First Amendment defense to raise at trial. I'm not sure that promotes any values of justice, but it seems like it follows the rule that orders can't be attacked collaterally as well as the rule that you can raise these defenses in criminal cases (since contempt is a criminal proceeding).

Of course, the real answer is courts have rules for them and rules for others.

[Rev. Arthur L. Kirkland]

" Of course, the real answer is courts have rules for them and rules for others. "

Why drag Ginni and Clarence Thomas into this?

[JHR]

Funny. In Mohawk v. Carpenter (2009), the Supreme Court explicitly endorsed the intentional violation of court orders as a way of obtaining review of the legality of the orders.

[Gandydancer]

It this that to which you refer?

"Second, in extraordinary circumstances where a disclosure order works a manifest injustice, a party may petition the court of appeals for a writ of mandamus. Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380. Another option is for a party to defy a disclosure order and incur court-imposed sanctions that, e.g., “direc[t] that the matters embraced in the order or other designated facts be taken as established,” “prohibi[t] the disobedient party from supporting or opposing designated claims or defenses,” or “strik[e] pleadings in whole or in part.” Fed. Rule Civ. Proc. 37(b)(2). Alternatively, when the circumstances warrant, a district court may issue a contempt order against a noncomplying party, who can then appeal directly from that ruling, at least when the contempt citation can be characterized as a criminal punishment. See, e.g., Church of Scientology of Cal. v. United States, 506 U. S. 9, 18, n. 11. " https://supreme.justia.com/cases/federal/us/558/100/

Not sure that refusing to obey discovery orders until an appeal from penalties for violating one is heard is quite the same thing as intentionally violating a gag order. The former can be remedied after a loss on appeal, the latter can only be punished.

[Stephen Lathrop]

Did Mohawk take cognizance that some challenged orders could prohibit repetition of violations of other laws, which were not explicitly challenged. Do you think Mohawk stands for a proposition that if a court order prohibits repeat violation of some law, then a successful attack on the court order effects repeal of the law?

[Ben_]

US Supreme Court needs to overturn this. Court procedures aren't above the constitution.

[Voize of Reazon]

we allow people to violate a statute and raise a First Amendment defense when they're prosecuted, rather than requiring them to challenge the statute up front. Why not do the same for court orders?

Standing to challenge a statute will often be lacking or at least questionable without a violation. An exception to the collateral bar rule may likewise be recognized in cases where an order cannot be directly appealed by its subject (e.g. a third-party subpoena in US v. Ryan), but most orders don't share this characteristic.