Our First Amendment right to express ourselves is one of our most cherished freedoms. It is a right that is sometimes abused, but the law provides free expression ample breathing space to avoid stifling that right.
The Indiana Supreme Court and the Indiana Court of Appeals recently addressed freedom of expression in two cases where it was claimed that speakers abused their free speech rights by making defamatory misstatements that harmed another person.
In Dugan v. Mittal Steel USA Inc., No. 45S05-1002-CV-121 (June 17, 2010), the Indiana Supreme Court concluded that certain defamatory statements made about an employee during an employer’s investigation of the disappearance of company equipment were protected by a qualified privilege and therefore not a basis for the employee’s defamation claim. Indiana law recognizes a “privilege” or legal protection in certain circumstances where it is particularly important as a matter of public policy to encourage speech. When such a privilege applies, speakers are liable for defamation only if they knew their statement was false or had substantial doubt about the truth of the statement.
In Dugan, an employee claimed she was defamed by a supervisor who told the company’s chief of security that the employee had defrauded the company and stolen its equipment. The Supreme Court had no difficulty finding that the statements were defamatory per se, because they accused the employee of criminal conduct. However, the Court recognized that the supervisor had a duty to cooperate with his company’s investigation of theft and report what he knew or heard to his employer. It is sound public policy to encourage such communications and therefore Indiana law applies a privilege to protect and encourage those communications.
The employee argued that the supervisor’s statements should not be protected because they were based only on second-hand information he had received from others, rather than his direct, personal observation. The Indiana Supreme Court expressly rejected that argument. The Court explained:
“It is unreasonable and contrary to sound policy for the common interest qualified privilege for intra-company communications about theft of company property to apply only for statements made on personal knowledge and to exclude the reporting of information received from others.”
It is not hard to imagine how an intra-company investigation of theft would be hampered if employees were not encouraged to report everything they knew or heard that could assist the investigation. Application of the qualified privilege does not depend on the source of the speaker’s information, but rather whether the speaker “lacked any grounds for belief as to the truth of the statements.”
The Indiana Court of Appeals opinion in In re Paternity of K.D., No. 49A02-0907-JV-693 (June 29, 2010) addressed a different problem – under what circumstances may a Court order a person to refrain from speaking about a particular subject. Government bans on speech are referred to as “prior restraints” because they seek to stop or silence people before they have expressed themselves. Prior restraints are rarely appropriate under the First Amendment because they are in effect government censorship of expression.
In K.D., the court faced a harrowing situation involving allegations by a mother that her daughter had been sexually abused by her father. The case involved a paternity action brought before the juvenile court. Two different judges on two different occasions found the mother’s allegations of abuse against the father to be unsubstantiated. After the second time the court rejected the mother’s allegations of abuse, she took her story to the press. The mother repeated her allegations in a series of newspapers and harshly criticized the father’s lawyer and the judges who handled the case.
In response to the articles, the father asked the court to find the mother in contempt for allegedly violating Indiana juvenile law by discussing the proceedings with the press. The Indiana juvenile court declined to hold the mother in contempt, but the court did expressly bar the mother from talking any further with the news media or anyone else about the case. The mother appealed from that order.
The Indiana Court of Appeals reversed the order as an overbroad and invalid prior restraint. In doing so, the Court of Appeals applied the well-established First Amendment rule that: “Any system of prior restraints of expression comes to the court bearing a heavy presumption against its constitutional validity.” That rule was established in the famous “Pentagon Papers” case in which the United States Supreme Court struck down a court order prohibiting the New York Times from reporting information received from an informant about a top secret Defense Department study about the Viet Nam War. New York Times Co. v. United States, 403 U.S. 713 (1971).
Indiana law provides for the confidentiality of juvenile court records and the Court of Appeals held that such confidentiality served a compelling state interest. Thus, the Court of Appeals held that the juvenile court correctly prohibited the mother from disclosing to the media or anyone else the contents of the juvenile court records. The problem, however, was that the mother had independent knowledge of the incidents at issue in the juvenile court proceedings, and her views (including her criticisms of the government’s handling of her daughter’s situation) based on her own personal observations outside of the court proceedings could not be silenced by court order without infringing her First Amendment rights.
After explaining why the juvenile court’s order was “an invalid prior restraint,” the Court of Appeals then considered “how to reconcile the conflict between Mother’s freedome of speech and the State’s interest in protecting the identity of the child and the allegation that she was a victim of abuse.” The Court of Appeals instructed that the juvenile court may prohibit the disclosure of the child’s name and any other information that the mother learned exclusively through the juvenile court proceedings, but that the mother’s freedom of speech entitled her to name herself, the father and other adults involved in the case, subject only to the payment of damages for defamation.