Last month, Indiana’s second highest court held that it was unconstitutional for a trial judge to order in a divorce case that neither party disparage the other when their child was not present. That decree was a prior restraint prohibited by the First Amendment.

The appellate court in Israel v. Israel noted that “The common thread running through free speech cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on free speech rights.” The United States Supreme Court has repeatedly emphasized that the prior censorship of expression can be justified only by the most compelling government interest.

However, the Indiana Court noted that there is a compelling government interest “in protecting children from being exposed to disparagement between their parents.” To the extent the non-disparagement clause in that case prohibited 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.

However, the trial judge’s ruling went far beyond furthering that compelling interest by prohibiting the parents from making disparaging comments about the other in the presence of “anyone,” even when child is not present. Thus, appellate court struck that portion of the decree that prohibited disparaging remarks to “friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone.”

In New York, as well, non-disparagement orders have been held to be unconstitutional. In 2020 in Karantinidis v. Karantinidis, it was held that an order directing the husband not to discuss, demean, or disparage the wife, a psychologist, to any third parties, was an unconstitutional prior restraint on speech. The wife’s concerns about damage to her professional reputation could be achieved by providing only that the husband shall not discuss, demean, or disparage the wife to the wife’s patients