BY THE COURT
Appellate courts generally avoid making unnecessary
constitutional decisions. Thus, when there is a valid
alternative ground for relief, an appellate court need not
reach a constitutional challenge.
the controlling facts are based on written or documentary
evidence or stipulations, the appellate court has as good an
opportunity to examine and consider the evidence as did the
Fourth Amendment concept that persons may legitimately demand
privacy in the curtilage of their homes from arbitrary
interference by the government does not apply in determining
whether a person made a statement publicly for purposes of a
an appeal from a criminal judgment that a person violated a
protection from stalking order, an appellate court may
determine the constitutionality of the underlying order.
prove defamation, the plaintiff must prove knowingly false
and defamatory words that are communicated to someone else
and that injure the reputation of the person defamed.
Generally, a prior restraint restricts speech in advance
based on content and carries a presumption of
purpose of our stalking statute is to protect innocent
citizens from threatening conduct that subjects them to a
reasonable fear of physical harm. The stalking statute
expressly excludes constitutionally protected activity from
its definition and does not reflect any State interest in
Under the circumstances of this case, the protection from
stalking order, as applied solely to speech which does not
subject a person to a reasonable fear of physical harm, is an
improper prior restraint of the appellant's
constitutional right to freedom of speech.
from Douglas District Court; Peggy C. Kittel, judge.
M. Hall, of Thompson Warner, P.A., of Lawrence, for
Duncan Butler, assistant district attorney, Charles E.
Branson, district attorney, and Derek Schmidt, attorney
general, for appellee.
Gardner, P.J., Pierron, J., and Burgess, S.J.
Smith appeals the district court's decision finding that
she violated a protection from stalking (PFS) order. Smith
argues that the PFS order, as applied, is an unconstitutional
prior restraint on her free-speech rights. In the
alternative, Smith argues that insufficient evidence shows
that she made a disparaging statement "in public, "
as the PFS order prohibited, since she made the statement to
her husband while standing on the doorstep to her home. We
find that sufficient evidence shows Smith made the statement
publicly. But we agree that the PFS order, as applied, is an
unconstitutional prior restraint on her free-speech rights.
As a result, we reverse her conviction and vacate her
and Procedural Background
lives across the street from Jonathan Perez. The two families
apparently have a history of conflict which includes each
making criminal allegations against the other. In 2016 or
2017, Smith accused Perez of sexual misconduct with
Smith's child. In April 2017, both Smith and Perez
received temporary orders of stalking against the other.
After a trial in June 2017, the district court denied Smith a
final PFS order against Perez but granted Perez a final PFS
order against Smith. To get such a civil order, Perez had to
prove by a preponderance of the evidence that Smith was
stalking him. See K.S.A. 2018 Supp. 60-31a05(a); Elem v.
Elem, No. 119, 774, 2019 WL 1746753, at *5-6 (Kan. App.
2019) (unpublished opinion). But our record on appeal does
not include the record from that civil trial.
order against Smith, in addition to the typical PFS
prohibitions on conduct (following, harassing, telephoning,
or contacting a named person), added the following special
prohibition on speech which Smith challenges here:
"Defendant shall not make direct or indirect disparaging
statements in public regarding plaintiff being a child
molest[e]r. 'Public' includes social media postings.
Any such postings made directly or indirectly by defendant
shall be removed immediately. This Order authorizes social
media entities to remove disparaging postings regarding
November 2017, Smith, while entering her residence, turned
toward her husband who was standing in their driveway and
said, "come inside away from the pedophile." Smith
made that statement loudly enough that Perez and his family
heard it from their home across the street. Perez also
captured the statement through a video and audio surveillance
system installed outside his residence.
being criminally charged with violating the PFS order, Smith
moved to dismiss the case. She argued that the PFS order was
an unconstitutional, content-based restriction on her
free-speech rights and that criminal prosecution under K.S.A.
2017 Supp. 21-5924 for violating the order was
unconstitutional as applied to her. The State argued that
Smith's speech was not protected by the First Amendment
to the United States Constitution, but even if it were, the