A recent court case highlights the complexities around challenging the constitutionality of gag orders. In the 2022 Colorado Court of Appeals case People in Interest of K.P., a parent was held in contempt for violating permanent protection orders in a dependency and neglect case. The parent tried to argue that the orders were unconstitutional prior restraints on her right to free speech.
However, the court ruled against the parent using the “collateral bar rule.” This rule states that if a party fails to timely appeal an order, they cannot later challenge its constitutionality without having first appealed it. Since the parent did not appeal the protection orders when they were first issued, the collateral bar rule prevented her constitutional challenge.
The court cited a blanket gag order as an example of something that would likely be unconstitutional. However, per the collateral bar rule, the order’s constitutionality could not be challenged if it was not appealed when first ordered.
This case shows that while gag orders can raise First Amendment issues, the collateral bar rule places strict limits on when those issues can be litigated. Parties must directly appeal gag orders if they want to preserve their ability to later argue the orders are unconstitutional. Appeals must happen in a timely manner, or the collateral bar rule will block subsequent constitutional claims.
Overall, this case highlights how crucial it is to promptly appeal questionable gag orders instead of waiting to challenge them down the road. The collateral bar rule creates stringent restrictions on revisiting orders that are not appealed right away. While gag orders can seem constitutionally dubious, affected parties must act quickly to preserve their ability to make First Amendment arguments.
Disclaimer: This article should not be construed as legal advice. For specific guidance on gag orders and your rights, consult an attorney at Conduit Law.
