The Constitution Does Not Allow Courts to Silence Criticism of Local Police Departments

EFF has filed an amicus brief urging the Tennessee Supreme Court to overturn a court order that would otherwise ban a victim from disclosing that she was subject to domestic violence or from speaking out about the police department’s handling of the investigation. The court order was issued under a Tennessee law that authorizes preliminary injunctions against speech in divorce cases. Importantly, the order banned the statement without any judicial determination that the allegations were false or in any way legally actionable.

Pamela Stark is in the midst of a divorce from her husband, Memphis Police Officer Joe Stark. The court prohibited her from making any public allegations against her husband on social media. Pamela Stark then shared a Facebook post criticizing the Memphis Police Department’s investigation into her domestic violence allegations against Joe Stark, asking “who do you turn to when those sworn to uphold the law, don’t.”

As a result of that post, the court held Pamela in contempt of court, arrested, and jailed her. She was released only after she agreed to remove her Facebook post.

But, as EFF explained in the amicus brief, the right to disclose government misconduct lies at the core of First Amendment protections. Pamela Stark has the right to criticize the Memphis Police Department and its officers, even if that includes her husband. Moreover, the First Amendment also protects audiences’ right to receive information. And because prior restraints on speech—such as the court’s order in this case—are the most serious restraints on speech, they are presumptively unconstitutional.

EFF has filed amicus briefs challenging similar prior restraints on speech in Kinney v. Barnes, McCarthy v. Fuller, and Chan v. Ellis.

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