Digital Media and Data Privacy Law Blog

As we recently discussed, prior restraints on speech and the press have been deemed “the most serious and the least tolerable infringement on First Amendment rights” by the United States Supreme Court and bear a “heavy presumption” against their constitutionality. A recent Rhode Island state court order, however, raises questions as to the true understanding of prior restraint jurisprudence among lower courts.

A Rhode Island Family Court has barred a woman from posting any information on the internet about a pending child custody case, although the woman is not a party to the proceeding. Kent County Family Court Judge Michael Forte issued the order in late June, restraining Michelle Langlois, whose brother is involved in a custody dispute with his ex-wife, from “posting details about the children and the pending Family Court proceedings on the internet.” The order stemmed from a “domestic abuse” petition filed by Tracey Martin, Langois’ brother’s ex-wife, against Langlois after Langlois posted information and opinions about the case on her Facebook page. The petition alleged that the postings constituted “harassment” and a “mental assault” on Martin and her children, and that “[a]ny further contact with [Langlois] could further psychologically damage the children” involved in the case.

The ACLU has intervened on behalf of Langlois by filing a motion to dismiss the order, asserting that the order imposes an unconstitutional prior restraint on Langlois’ right of free speech. The motion also seeks dismissal of the order based on jurisdictional defects. In defense of her Facebook postings, Langlois stated: “I do not believe the truth was coming out in Family Court. I was simply using the internet to publicize my brother’s plight.”

The motion will be heard on Wednesday, July 29 in Kent County Family Court before Judge Forte. If Judge Forte denies the motion, Langlois and the ACLU may have a viable appeal due to the general presumption of unconstitutionality of prior restraints in American jurisprudence, as mentioned above. We will keep you apprised of the outcome in this matter.