The Volokh Conspiracy
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Judge Orders Person to Stop Campaign of Criticizing Teenager Who Had Posted a Racial Slur When a Sophomore
The Indiana Court of Appeals, though, reverses the order, concluding the judge wasn't allowed to issue such an order on his own initiative; it doesn't decide whether such an order would violate the First Amendment.
From P.S. v. R.S., decided Wednesday by the Indiana Court of Appeals, in an opinion by Judge L. Mark Bailey, joined by Judges Terry A. Crone and Rudolph R. Pyle III; for clarity, I'll describe "R.S." as Student (which he was at the time the criticism began) and "P.S." as Critic:
At the beginning of his sophomore year in high school, [Student] created a video of himself "spelling … out a racist slur." The video surfaced on social media during [Student]'s senior year in high school, and the video continues to circulate on social media.
[Critic], a concerned citizen, saw the video and began commenting about it and [Student] on her publicly accessible social media page. [Critic] "ke[pt] posting and reposting negative things against [Student,] … and … calling him out by his name as well." And [Critic] and other citizens appeared at the local school board meeting to "try[ ] to get some type of disciplinary" action imposed. [Student]'s father ("Father") contacted [Critic] and asked her to remove the video from her social media feed so that Father could "take care of [disciplining his son] in-house." [Critic] complied with Father's request but "then [the video] came back numerous times [and] other people started sharing it."
On May 3, 2023, [Student] filed a petition for a protection order against [Critic], alleging that [Critic] had used social media to stalk [Student], slander him, and disseminate false information…. [Student] testified that in making the video, he made a "dumb, stupid mistake" three years ago that had been circulating on social media for the "past seven [ ] months[,] and [Critic] has been slandering my name." Father told the trial court that the "only thing [Father and [Student]'s mother] have asked for from day one [is to] let us take care of our son, … but again, … [Critic] seems to keep … posting and reposting negative things against him."
[Critic] testified that she never contacted [Student] or his family, and that she "[d]idn't know where they lived, didn't know anything." [Critic] further testified that she did not "have any interest in targeting [Student on social media]," but that she believed it important to continue to comment on the matter. She told the court that in her future social media posts, she would "probably" "comment on" [Student] and any other individuals who had been involved with the video incident.
After hearing the testimony, the trial court denied [Student]'s petition for a protection order, ruling that "there's not grounds" to grant it. The court then sua sponte imposed what it termed a "mutual restraining order" on both parties, prohibiting them from—among other activities—communicating, harassing, or threatening each other directly or indirectly, including on social media. Specifically, the trial court instructed the parties as follows:
THE COURT: Alright, so here's what I am going to do. I am going to order both of you to not to [sic] communicate, not to harass, not to threaten each other in anyway [sic] shape or form, individually, directly, or through third … parties or any form of social media. And I'm not granting the Protective Order, that's denied cuz [sic] there's not grounds for a Protective Order. But I am granting a mutual restraining order so the two … of you leave each other alone. And if there's things that need to be addressed ah, as far as involvement and the school corporation or contacting law enforcement or amongst your friends that's perfectly fine. But, obviously there's been months of back and forth on social media where negative things were said on both sides and it's both of you just need to be adults and there's no reason for it. So do you understand ma'am? …
The appellate court concluded that the trial court lacked the authority under Indiana law to just issue the order on its own, without the parties' requesting it. The appellate court also concluded that the trial court's order didn't comply with the "specific requirements apply for every restraining order granted without notice," including "defining the injury, stating why it is irreparable, … stating why the order was granted without notice," and having the order last no more than a brief time before a full hearing. Because the appellate court reversed the order on those procedural grounds, it didn't need to decide whether the order violated the First Amendment.
Stevie J. Pactor and Kenneth J. Falk of the ACLU of Indiana represented Critic.
