Shak v. Shak ( 2020 )

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SJC-12748
MASHA M. SHAK vs. RONNIE SHAK.
Norfolk. November 4, 2019. - May 7, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Divorce and Separation, Discontinuance of libel. Constitutional
Law, Freedom of speech and press, Divorce.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on February 5, 2018.
A complaint for contempt, filed on June 8, 2018, was heard
by George F. Phelan, J., and questions of law were reported by
him.
The Supreme Judicial Court granted an application for
direct appellate review.
Richard M. Novitch (Gary Owen Todd & Julianna Zane also
present) for the mother.
Jennifer M. Lamanna for the father.
Ruth A. Bourquin & Matthew R. Segal, for American Civil
Liberties Union of Massachusetts, amicus curiae, submitted a
brief.
BUDD, J. Nondisparagement orders often are issued as a
means to protect minor children during contentious divorce or
2
child custody proceedings in order to protect the child's best
interest. At issue here are orders issued to the parties in
this case in an attempt to protect the psychological well-being
of the parties' minor child, given the demonstrated breakdown in
the relationship between the mother and the father. We conclude
that the nondisparagement orders at issue here operate as an
impermissible prior restraint on speech.1
Background. Ronnie Shak (father) and Masha M. Shak
(mother) were married for approximately fifteen months and had
one child together. The mother filed for divorce on February 5,
2018, when the child was one year old. The mother then filed an
emergency motion to remove the father from the marital home,
citing his aggressive physical behavior (including roughly
grabbing their child and throwing items at their neighbors),
temper, threats, and substance abuse. A Probate and Family
Court judge ordered the father to vacate the marital home and
issued temporary orders granting the mother sole custody of the
child, and a date for a hearing was set. Before the hearing,
the mother filed a motion for temporary orders, which included a
request that the judge prohibit the father from posting
disparaging remarks about her and the ongoing litigation on
social media. After a hearing, the judge issued temporary
1 We acknowledge the amicus brief submitted by the American
Civil Liberties Union of Massachusetts.
3
orders that included, in paragraphs six and seven,
nondisparagement provisions against both parties (first order):
"6. Neither party shall disparage the other -- nor permit
any third party to do so -- especially when within hearing
range of the child.
"7. Neither party shall post any comments, solicitations,
references or other information regarding this litigation
on social media."
The mother thereafter filed a complaint for civil contempt
alleging that the father violated the first order by
"publish[ing] numerous [social media] posts and commentary
disparaging [her] and detailing the specifics of th[e]
litigation on social media." The mother further alleged that
the father had shared these posts with members of her religious
community, including her rabbi and assistant rabbi, as well as
with her business clients. In the father's answer, he denied
having been timely notified of the judge's first order and
raised the judge's lack of authority "to issue [a] prior
restraint on speech."
After a hearing, a different judge declined to find
contempt on the ground that the first order, as issued,
constituted an unlawful prior restraint of speech in violation
of the father's Federal and State constitutional rights.
However, the judge concluded that orders restraining speech are
permissible if narrowly tailored and supported by a compelling
State interest. The judge sought to cure the perceived
4
deficiencies of the first order by issuing further orders of
future disparagement (orders) which stated in relevant part:
"1) Until the parties have no common children under the age
of [fourteen] years old, neither party shall post on any
social media or other Internet medium any disparagement of
the other party when such disparagement consists of
comments about the party's morality, parenting of or
ability to parent any minor children. Such disparagement
specifically includes but is not limited to the following
expressions: 'cunt', 'bitch', 'whore', 'motherfucker', and
other pejoratives involving any gender. The Court
acknowledges the impossibility of listing herein all of the
opprobrious vitriol and their permutations within the human
lexicon.
"2) While the parties have any children in common between
the ages of three and fourteen years old, neither party
shall communicate, by verbal speech, written speech, or
gestures any disparagement to the other party if said
children are within [one hundred] feet of the communicating
party or within any other farther distance where the
children may be in a position to hear, read or see the
disparagement."2
The judge stayed those orders and purported to report two
questions to the Appeals Court.3 We allowed the mother's
2 The judge's orders included two additional sections that
were neither challenged by the parties nor addressed in the
judge's reported questions. We therefore do not express an
opinion about them.
3 The questions reported by the judge are:
(1) "Are 'Non-Disparagement' orders [issued in the context
of divorce litigation] an impermissible restraint on
constitutionally protected free speech?"
(2) "Are 'Non-Disparagement' orders [issued in the context
of divorce litigation] enforceable and not an impermissible
restraint on free speech when there is a compelling public
interest in protecting the best interests of minor
children?"
5
application for direct appellate review. Rather than answering
the reported questions, we focus strictly on the correctness of
the orders issued by the second judge in this case. See McStowe
v. Bornstein, 377 Mass. 804, 805 n.2 (1979) ("Although a judge
may report specific questions of law in connection with an
interlocutory finding or order, the basic issue to be reported
is the correctness of his finding or order. Reported questions
need not be answered in this circumstance except to the extent
that it is necessary to do so in resolving the basic issue").
See also Mass R. Dom. Rel. P. 64(a).
Discussion. The First Amendment to the United States
Constitution provides that "Congress shall make no law . . .
abridging the freedom of speech." "[A]s a general matter, the
First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject
matter, or its content." Ashcroft v. American Civ. Liberties
Union, 535 U.S. 564, 573 (2002), quoting Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 65 (1983). Article 16 of the
Declaration of Rights, as amended by art. 77 of the Amendments,
is at least as protective of the freedom of speech as the First
6
Amendment.4 Care & Protection of Edith, 421 Mass. 703, 705
(1996).
"The term 'prior restraint' is used 'to describe
administrative and judicial orders forbidding certain
communications when issued in advance of the time that such
communications are to occur.'" Alexander v. United States, 509
U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of
Speech § 4.03, at 4-14 (1984). Nondisparagement orders are, by
definition, a prior restraint on speech. See Care & Protection
of Edith, 421 Mass. at 705 ("An injunction that forbids speech
activities is a classic example of a prior restraint"). Because
the prior restraint of speech or publication carries with it an
"immediate and irreversible sanction" without the benefit of the
"protections afforded by deferring the impact of the judgment
until all avenues of appellate review have been exhausted," it
is the "most serious and the least tolerable infringement on
First Amendment rights." Nebraska Press Ass'n v. Stuart, 427
U.S. 539, 559 (1976). See Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 559 (1975) ("a free society prefers to
punish the few who abuse rights of speech after they break the
law than to throttle them and all others beforehand").
4 Article 16 of the Massachusetts Declaration of Rights, as
amended by art. 77 of the Amendments, states in pertinent part:
"The right of free speech shall not be abridged."
7
As "one of the most extraordinary remedies known to our
jurisprudence," Nebraska Press Ass'n, 427 U.S. at 562, in order
for prior restraint to be potentially permissible, the harm from
the unrestrained speech must be truly exceptional. See Near v.
Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).5,6 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
5 Leading cases from the Supreme Court that have held prior
restraints to be unconstitutional illustrate what constitutes
truly exceptional circumstances. See, e.g., New York Times Co.
v. United States, 403 U.S. 713, 714, 718 (1971) (Black, J.,
concurring) (prior restraint against publication of classified
information allegedly involving national security concerns
unconstitutional); Nebraska Press Ass'n v. Stuart, 427 U.S. 539,
561-562, 569 (1976) (in circumstances, prior restraint against
publication of information about defendant's criminal trial
unconstitutional despite risk of "adverse impact on the
attitudes of those who might be called as jurors"); Kingsley
Int'l Pictures Corp. v. Regents of the Univ. of the State of
N.Y., 360 U.S. 684, 688 (1959) (prior restraint on display of
films promoting "sexual immorality" unconstitutional censorship
of ideas).
6 In Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716
(1931), the Supreme Court established three categories of speech
that potentially could justify a prior restraint: obscene
speech, incitements to violence, and publishing national
secrets. With respect to these exceptions, two of the three --
obscenity and incitement to violence -- are no longer considered
protected speech under the First Amendment. See Nebraska Press
Ass'n, 427 U.S. at 590, and cases cited (Brennan, J.,
concurring); Times Film Corp. v. Chicago, 365 U.S. 43, 48
(1961). Even so, in cases involving obscenity and incitement to
violence, "adequate and timely procedures are mandated to
protect against any restraint of speech that does come within
the ambit of the First Amendment." Nebraska Press Ass'n, supra
at 591, and cases cited (Brennan, J., concurring).
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certain, and there are no alternative, less restrictive means to
mitigate the harm. See Nebraska Press Ass'n, supra.
It is true that "[p]rior restraints are not
unconstitutional per se." Southeastern Promotions, Ltd., 420
U.S. at 558, citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58,
70 n.10 (1963). See Nebraska Press Ass'n, 427 U.S. at 570, and
cases cited ("This Court has frequently denied that First
Amendment rights are absolute and has consistently rejected the
proposition that a prior restraint can never be employed").
However, the Supreme Court has made clear that prior restraints
are heavily disfavored. See Near, 283 U.S. at 716 (prior
restraint is appropriate "only in exceptional cases"). The
Court has stated specifically that "[a]ny system of prior
restraint . . . comes . . . bearing a heavy presumption against
its constitutional validity" (quotations and citation omitted).
Southeastern Promotions, Ltd., supra at 558, and cases cited.
A prior restraint "avoids constitutional infirmity only if
it takes place under procedural safeguards designed to obviate
the dangers of a censorship system." Southeastern Promotions,
Ltd., 420 U.S. at 559, quoting Freedman v. Maryland, 380 U.S.
51, 58 (1965). To determine whether a prior restraint is
warranted, the Supreme Court has looked to (a) "the nature and
extent" of the speech in question, (b) "whether other measures
would be likely to mitigate the effects of unrestrained" speech,
9
and (c) "how effectively a restraining order would operate to
prevent the threatened danger." Nebraska Press Ass'n, 427 U.S.
at 562. "[T]he barriers to prior restraint remain high and the
presumption against its use continues intact." Id. at 570.
We have acknowledged that prior restraints "require an
unusually heavy justification under the First Amendment."
Commonwealth v. Barnes, 461 Mass. 644, 652 (2012), quoting New
York Times Co. v. United States, 403 U.S. 713, 733 (1971)
(White, J., concurring). Given the "serious threat to rights of
free speech" presented by prior restraints, we have concluded
that such restraints cannot be upheld unless "justified by a
compelling State interest to protect against a serious threat of
harm." Care & Protection of Edith, 421 Mass. at 705.
Additionally, "[a]ny limitation on protected expression must be
no greater than is necessary to protect the compelling interest
that is asserted as a justification for the restraint."7 Id.
On the occasions that we have considered claims of prior
restraint, we have concluded that the restraint in question was
7 We note that other State courts also have ruled on prior
restraint claims in the context of divorce, child custody, and
child welfare cases and, in doing so, have used various language
to describe the applicable standard. The common theme is that
the bar for a prior restraint is extremely high. See, e.g., In
re Marriage of Newell, 192 P.3d 529, 535-537 (Colo. Ct. App.
2008); In re Summerville, 190 Ill. App. 3d 1072, 1077-1079
(1989); Johanson v. Eighth Judicial Dist. Court , 124 Nev. 245,
250-253 (2008); Matter of Adams v. Tersillo, 245 A.D.2d 446, 447
(N.Y. 1997); Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex. 1995).
10
impermissible. See, e.g., Barnes, 461 Mass. at 656-657 (prior
restraint on Internet streaming of court proceedings deemed
unlawful in circumstances); George W. Prescott Publ. Co. v.
Stoughton Div. of the Dist. Court Dep't of the Trial Court, 428
Mass. 309, 311-312 (1998) (prior restraint on newspaper
publisher's ability to report on juvenile records and
proceedings unlawful); Care & Protection of Edith, 421 Mass. at
705-706 (prior restraint forbidding father from discussing care
and protection proceeding with press unlawful).
Turning to the order in question, the judge properly noted
that "the State has a compelling interest in protecting children
from being exposed to disparagement between their parents." See
Barnes, 461 Mass. at 656, quoting Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 607-608 (1982) (safeguarding
physical and psychological well-being of minor is compelling
interest). However, as important as it is to protect a child
from the emotional and psychological harm that might follow from
one parent's use of vulgar or disparaging words about the other,
merely reciting that interest is not enough to satisfy the heavy
burden of justifying a prior restraint.
Assuming for the sake of discussion that the Commonwealth's
interest in protecting a child from such harm is sufficiently
weighty to justify a prior restraint in some extreme
circumstances, those circumstances do not exist here. No
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showing was made linking communications by either parent to any
grave, imminent harm to the child. The mother presented no
evidence that the child has been exposed to, or would even
understand, the speech that gave rise to the underlying motion
for contempt. As a toddler, the child is too young to be able
to either read or to access social media. The concern about
potential harm that could occur if the child were to discover
the speech in the future is speculative and cannot justify a
prior restraint. See Nebraska Press Ass'n, 427 U.S. at 563.
Significantly, there has been no showing of anything in this
particular child's physical, mental, or emotional state that
would make him especially vulnerable to experiencing the type of
direct and substantial harm that might require a prior restraint
if at any point he were exposed to one parent's disparaging
words toward the other. Cf. Felton v. Felton, 383 Mass. 232,
233-234 (1981), and cases cited (reversing and remanding for
further consideration probate judge's order restricting father's
visitation unless he refrained from instructing children in his
religion -- "harm to the child . . . should not be simply
assumed or surmised; it must be demonstrated in detail").
Because there has been no showing that any harm from the
disparaging speech is either grave or certain, our analysis
regarding the permissibility of the nondisparagement order
issued in this case ends here. We note, however, that there are
12
measures short of prior restraint available to litigants and
judges in circumstances in which disparaging speech is a
concern. For example, our ruling does not impact
nondisparagement agreements that parties enter into voluntarily.
Depending upon the nature and severity of the speech, parents
who are the target of disparaging speech may have the option of
seeking a harassment prevention order pursuant to G. L. c. 258E,
or filing an action seeking damages for intentional infliction
of emotional distress or defamation. See Roman v. Trustees of
Tufts College, 461 Mass. 707, 717-718 (2012), quoting Sena v.
Commonwealth, 417 Mass. 250, 263-264 (1994) (setting forth
elements of intentional infliction of emotional distress); White
v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66
(2004) (setting forth elements of defamation). And certainly
judges, who are guided by determining the best interests of the
child, can make clear to the parties that their behavior,
including any disparaging language, will be factored into any
subsequent custody determinations. See Ardizoni v. Raymond, 40
Mass. App. Ct. 734, 738 (1996). 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.
13
We recognize that the motion judge put careful thought into
his orders in an effort to protect a child caught in the middle
of a legal dispute who was unable to advocate for himself.
However, because there was no showing of an exceptional
circumstance that would justify the imposition of a prior
restraint, the nondisparagement orders issued here are
unconstitutional.
Conclusion. Paragraphs 1 and 2 of the judge's further
orders on future disparagement, dated October 24, 2018, are
hereby vacated.
So ordered.