Bailey, J.
Case Summary
Jamie Israel (“Husband”) appeals certain provisions of the trial court’s decree of dissolution of his marriage to Yaima Israel (“Wife”). Husband alleges error regarding the trial court’s disposition of marital assets, legal custody of the parties’ child, and attorney’s fees; we discern no error as to these issues. However, Husband also challenges the trial court’s decision to include a non-disparagement clause that restrains the parties from ever making disparaging remarks about one another, regardless of whether Child is present. As to this latter issue, we agree with Father that the non-disparagement clause amounts to an unconstitutional prior restraint on speech.
Ultimately, we affirm in part, reverse in part, and remand with instructions.
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The Final Decree also contained a “Non-Disparagement” clause which stated in full:
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.
Id. at 11-12.
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Finally, Husband asserts that the non-disparagement clause of the Final Decree is an unconstitutional prior restraint of speech. The First Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law … abridging the freedom of speech ….”. U.S. Const., amend. I. “A prior restraint is a term used to describe ‘administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are about to occur.’” WPTA-TV v. State, 86 N.E.3d 442, 447 (Ind. Ct. App. 2017) (quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). “Restraining orders and injunctions that forbid future speech activities,” such as non-disparagement orders, “are classic examples of prior restraints.” In re Paternity of G.R.G., 829 N.E.2d 114, 124 (Ind. Ct. App. 2005) (citation omitted); see also Shak v. Shak, 144 N.E.3d 274, 277 (Mass. 2020) (“Non-disparagement orders are, by definition, a prior restraint on speech.”).
“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.”…
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. See id. 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. Appealed Order at 11. Cf. G.R.G., 829 N.E.2d at 124 (specifically noting that the constitutional non-disparagement clause at issue in that case did not preclude discussions with third parties outside the child’s presence). Thus, the following portion of the first sentence of the non-disparagement clause6 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.”
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Affirmed in part, reversed in part, and remanded with instructions to modify the non-disparagement clause in conformity with this opinion. Najam, J., and Bradford, C.J., concur.