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“Not in Front of the Children”: Massachusetts High Court Invalidates Involuntary Non-Disparagement Order Between Parents as Prior Restraint

By Michael J. Lambert

When media lawyers think of a prior restraint, they likely imagine an attempt to prevent a publisher from releasing harmful or sensitive information. A child custody dispute does not usually come to mind. But family and First Amendment law collided recently in Massachusetts as a contentious domestic relations case turned into a lesson on prior restraint law.

After one parent allegedly "disparaged" the other on social media after a divorce, the Probate and Family Court issued an order banning "any disparagement of the other party" until their child turned 14. On May 7, 2020, the Massachusetts Supreme Judicial Court (SJC) unanimously held that the involuntary non-disparagement order, without a showing of exceptional circumstances, violated the First Amendment and Article 16 of the state's constitution as prior restraints on speech. Shak v. Shak, 484 Mass. 658 (2020). While the lower court judge "put careful thought into his order in an effort to protect a child" from exposure to disparagement between his parents, "speculative" concerns about potential harm do not justify a prior restraint. Id. at 664.

"A prior restraint is permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm," Associate Justice Kimberly Budd wrote for the Court, citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).

Background

The case arose in 2018 after Masha Shak filed for divorce from Ronnie Shak and sought custody over their one-year-old child. Masha also asked for an order prohibiting Ronnie from making disparaging remarks about her and the ongoing litigation on social media.

After a hearing, Probate and Family Court Judge Virginia Ward issued a non-disparagement order. The order prohibited both parents from "disparaging" the other, especially when within hearing range of the child, and posting any comments, solicitations, references, or other information regarding the litigation on social media.

After Ronnie criticized Masha on Facebook and shared the posts with members of her community, Masha asked the court to hold him in contempt of the non-disparagement order. Probate and Family Court Judge George Phelan rejected her request; instead, he questioned the First Amendment validity of the initial non-disparagement order. In an effort to cure its constitutional errors, he drafted a new order. The 11-page order banned "any disparagement of the other party" on social media when such disparagement consists of "comments about the party's morality, parenting of or ability to parent any minor children" until the child turned 14. It also prohibited the parents from communicating any disparaging statements to each other when the child is within 100 feet or is in a position to hear, read, or see the statements.

Judge Phelan stayed the order pending review by the Massachusetts Appeals Court. The SJC granted Masha's application for direct review of the constitutionality of the order.

Analysis

The First Amendment, the SJC wrote, means that the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Id. at 661 (quoting Ashcroft v. American Civ. Liberties Union, 535 U.S. 564, 573 (2002)). Prior restraints, which restrict speech prior to dissemination, are heavily disfavored and bear a heavy presumption against their constitutionality. Id. (citing Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 558 (1976)). An involuntary non-disparagement order is, by definition, a prior restraint on speech and can only be upheld if justified by a compelling state interest to protect against a serious threat of harm that is no greater than necessary to protect the interest. Id. at 663 (citing Care & Protection of Edith, 421 Mass. 703, 705 (1996)).

While acknowledging the state's compelling interest in safeguarding the well-being of children by protecting them from exposure to disparagement between parents, "speculative" concerns about potential harm do not justify a prior restraint. Id. at 664. The lower court failed to connect Ronnie's disparaging speech to "any grave, imminent harm" to the child. According to the SJC, Masha did not present evidence that the child, who was not old enough to read, had been exposed to the social media posts or would understand them. Neither did she demonstrate anything in the child's physical, mental, or emotional state making him especially vulnerable to the disparaging words.

"The potential impact on a child's mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child," the Court reasoned.

Although the SJC vacated the order, it reminded parents of the constitutional remedies that still exist. For example, parents can voluntarily enter into non-disparagements agreements. A parent can file a defamation claim or pursue a harassment prevention order. And judges can consider a parent's behavior when making future custody determinations. Id. at 664.

"Of course, the best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another," Justice Budd added.

Conclusion

Even though Shak occurred in a family law setting, it can still be helpful for media law practitioners. At its core, the case is a clear rebuke of government control over speech.

The SJC held that involuntary judicial orders restricting speech before publication are unconstitutional prior restraints. And prior restraint are only valid if (1) the harm expected from the unrestrained speech is grave; (2) the likelihood of the harm occurring without the prior restraint in place is all but certain; and (3) there are no alternative, less restrictive means to mitigate the harm. Id. at 661–62.

Those three requirements remain challenging to meet. Indeed, the Court reflected on the few occasions in which it considered prior restraints. It struck down orders restricting a radio station from streaming online court proceedings, Commonwealth v. Barnes, 461 Mass. 644, 656–657 (2012); a newspaper from reporting on juvenile records, George W. Prescott Publ. Co. v. Stoughton Div. of Dist. Court Dep't of the Trial Court, 428 Mass. 309, 311–312 (1998); and a father from discussing his case with the press, Care & Protection of Edith, 421 Mass. 703, 705–06 (1996).

Shak now joins these three cases in reinforcing the bedrock principle that prior restraints are "most serious and the least tolerable infringement on First Amendment rights."

Michael J. Lambert is a media/First Amendment attorney at Prince Lobel Tye LLP in Boston.

 
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