Protection from Stalking Orders Cannot Restrict Speech

State v. Smith, No. 119,919 (Kan. Ct. App. Sept. 27, 2019).

Issue: Smith was convicted for violating her protection from stalking (“PFS”) order that prohibited her from making disparaging statements in public about Perez. Does this provision in the PFS order violate Smith’s First Amendment rights?  

Answer: Yes. The state did not demonstrate a narrowly tailored compelling interest in preventing these statements, therefore Smith’s First Amendment rights were violated. 

Facts: The district court issued a PFS order for Perez against Smith. The order stated, in part, that the “Defendant [Smith] shall not make direct or indirect disparaging statements in public regarding plaintiff being a child molest[e]r.” Smith violated the PFS order by loudly calling Perez a pedophile in public. 

Discussion: First, the court found that Smith’s statement warranted First Amendment protections.  Content-based speech restrictions are presumptively invalid.  The state relied on defamation as a potential exception to this presumption, however, was unable to meet its burden and prove that Smith’s statement was defamatory because the state did not show that the potential slander was unprotected, false, or harmful to Perez’s reputation.

Second, this PFS order did not serve a compelling state interest.  Restricting speech is permissible in this context only when the state can show there is a compelling state interest narrowly tailored to the protection of that interest.  The state’s articulated interest was prevention of physical violence.  The court, however, concluded that there was no threat of physical violence present, and that the restriction of speech here was overly broad. Therefore, PFS orders with content-based restrictions on speech are unconstitutional, unless the state can demonstrate a narrowly tailored compelling state interest. 

Key Authorities:

U.S. Const. amend. I.

Kan. Const. Bill of Rights, § 11.

United States v. Alvarez, 567 U.S. 709, 716–17 (2012).

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