From PS vs RS, 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 will describe “RS” as Student (which he was at the time the criticism began) and “PS” as Critic:
At the beginning of his second year of high school, [Student] created a video in which he “wrote… a racist slur.” The video surfaced on social media during [Student]It’s senior year of high school and the video continues to circulate on social media.
[Critic]a concerned citizen, saw the video and started commenting on it and [Student] on its publicly accessible social media page. [Critic] “THE[pt] posting and reposting negative things against [Student,] … and … also calling him by name.” AND [Critic] and other citizens showed up at the local school board meeting to “give it a try.”[ ] to get some type of disciplinary action imposed. [Student]he contacted her father (“Father”). [Critic] and asked her to remove the video from her social media so dad could “take care of it.” [disciplining his son] internally.” [Critic] obeyed the Father’s request but “then [the video] returned numerous times [and] other people started sharing it.”
On May 3, 2023, [Student] has filed an application for an order of protection against [Critic]supporting this [Critic] had used social media to stalk [Student]slander him and spread false information…. [Student] testified that he made a “stupid, stupid mistake” three years ago that had been circulating on social media for “seven years” [ ] months[,] AND [Critic] has defamed my name.” The father told the district court that “the only thing [Father and [Student]the mother]have been asking since day one [is to] let’s take care of our son,… but once again,… [Critic] seems to continue…posting and reposting negative things against him.”
[Critic] he testified that he never reached out [Student] or her family, and that she”[d]I didn’t know where they lived, I didn’t know anything.” [Critic] he further testified that he had “no interest in targeting.” [Student on social media],” but that he felt it was important to continue to comment on the matter. He told the court that in his future social media posts, he would “probably” comment on [Student] and any other person involved in the incident in the video.
After hearing testimony, the district court denied [Student]filed for an order of protection, ruling that there is “no basis” to grant it. The court then sua sponte imposed what it called a “mutual restraining order” on both parties, prohibiting them from, among other activities, communicating with, harassing or threatening each other directly or indirectly, including on social media. In particular, the judge of first instance thus imparted to the parties:
THE COURT: Okay, so here’s what I’m going to do. I will order you both not to do this [sic] communicate, do not harass, do not threaten in any way [sic] shape or form, individually, directly, or through third…parties or any form of social media. And I will not grant the protective order, this is denied because [sic] there are no grounds for a protective order. But I’m granting a mutual restraining order so that you two… leave each other alone. And if there are things that need to be addressed, ah, as far as involvement and the school entity or contact with law enforcement or among your friends that’s great. But obviously there’s been months of back and forth on social media where negative things have been said on both sides and you both just have to be adults and there’s no reason for that. So you understand, ma’am? …
The appeals court concluded that the trial court did not have the authority under Indiana law to issue the order on its own motion, without the parties requesting it. The appeals court also concluded that the lower court’s order did not comply with the “specific requirements that apply to any restraining order granted without notice,” including “defining the harm, stating why is irreparable,… the reason why the order was granted without notice,” and to ensure that the order lasts no more than a short period before a full hearing. Because the appeals court struck down the ordinance on these procedural grounds, it did not need to decide whether the ordinance violated the First Amendment.
Critic represented by Stevie J. Pactor and Kenneth J. Falk of the ACLU of Indiana.