Care and Protection of Edith

Decision Date17 January 1996
Citation421 Mass. 703,659 N.E.2d 1174
PartiesCARE AND PROTECTION OF EDITH & others. 1
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Eric S. Maxwell for father.

Rosemary S. Gale, Assistant Attorney General, for Department of Social Services.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

On February 22, 1995, a District Court judge entered an order in a care and protection proceeding directing, among other things, that the father of the children not "discuss any aspect of the ongoing proceedings with any member of the media ... if it is reasonable to believe that the information communicated will lead to the identity of the subject children." 2 The order replaced an earlier order of the same general character. The order was entered after the parents had been determined to be unfit, permanent custody had been awarded to the Department of Social Services, and the father had appealed from the adjudication of unfitness.

After failing to obtain a stay of the order pending appeal, the father commenced an action in the single justice session of this court pursuant to G.L. c. 211, § 3 (1994 ed.), challenging the lawfulness of the February 22, 1995, order. He asserted that the order, which had been issued without a hearing or factual findings, was overbroad, vague, and an improper prior restraint on his constitutional rights of free speech under both the State and Federal Constitutions. The father has agreed not to use his children's true names or photographs in dealing with the press, as the order in part provides (see note 2 above), but objects to any restriction on his asserted right to criticize the way that the government handled his children's care and protection proceeding in particular and the way it handles all such proceedings in general. The Department of Social Services (department) was joined as a party defendant, and the District Court Department, originally named as the defendant, has been designated a nominal party.

A single justice of this court held a hearing on the complaint and, without opinion, ordered that the complaint be "denied." The father appealed. The judgment of the single justice must be vacated and a judgment entered vacating the February 22, 1995, order. That order was a prior restraint on speech that cannot properly be upheld against the father's constitutionally-based challenges.

The constitutional principles that govern our consideration of the challenged order are well established and are not significantly different under art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments than under the First Amendment to the Constitution of the United States. See Krebiozen Research Found. v. Beacon Press, Inc., 334 Mass. 86, 96-97, 134 N.E.2d 1 cert. denied, 352 U.S. 848, 77 S.Ct. 65, 1 L.Ed.2d 58 (1956). An injunction that forbids speech activities is a classic example of a prior restraint. Alexander v. United States, 509 U.S. 544, ----, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993). Cf. Commonwealth v. Blanding, 3 Pick. 304, 313 (1826). Such a restraint presents a serious threat to rights of free speech. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802-2803, 49 L.Ed.2d 683 (1976). Near v. Minnesota, 283 U.S. 697, 713-714, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931). Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm. See Nebraska Press Ass'n v. Stuart, supra at 561, 570, 96 S.Ct. at 2803-2804, 2808. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971); Wood v. Georgia, 370 U.S. 375, 384-385, 391-393, 82 S.Ct. 1364, 1369-70, 1373-74, 8 L.Ed.2d 569 (1962). Any 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. See Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 547-548, 362 N.E.2d 1189 (1977); Commonwealth v. Dennis, 368 Mass. 92, 99, 329 N.E.2d 706 (1975). It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.

From what we have said it is clear that the February 22, 1995, order was and is an unlawful prior restraint on the right of the children's father to comment on the judicial proceedings and on the conduct of the department. The department has not identified a compelling State interest that needs protection. A general rule that bars any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding will not do. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 n. 27, 102 S.Ct. 2613, 2622 n. 27, 73 L.Ed.2d 248 (1982). There must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them. See id. at 608, 102 S.Ct. at 2621; Commonwealth v. Martin, 417 Mass. 187, 193-194, 629 N.E.2d 297 (1994). In fact, in the course of the care and protection proceeding but before any order restricting disclosure had been entered, the department published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children. Publication of the children's names was not required to give the notice that is required by law. See G.L. c. 210, § 3 (1994 ed.); Uniform Probate Court Practice Xa (3) (1995). There is no finding that the names of the children had to be published in order to give effective notice of the department's decision to have the children adopted. Nor is there any explanation why the department's publication of the children's names did not violate the same "compelling" State interest in confidentiality that the...

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  • Shak v. Shak
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 7 Mayo 2020
    ...... of the Amendments, is at least as protective of the freedom of speech as the First Amendment.4 Care & Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174 (1996)."The term 'prior restraint’ is ......
  • Commonwealth v. Barnes, SJC–11035
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 14 Marzo 2012
    ...and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” Id., quoting Care & Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174 (1996). Furthermore, “[t]here is a particularly high burden of justification where, having opened the proceedings and......
  • Adoption of Iris
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 3 Junio 1998
    ...... trial was based on the combined petition of the Department of Social Services (department) for care and protection of Iris under G.L. c. 119, § 24, and to dispense with parental consent to adoption ... See Care & Protection of Edith, 421 Mass. 703, 707, 659 N.E.2d 1174 (1996). We will exercise our discretionary powers under G.L. ......
  • In re Interest of FG, SCAP-17-0000639
    • United States
    • Supreme Court of Hawai'i
    • 28 Junio 2018
    ......In July 2017, Parents' three-year-old child, FG, died while in foster care. Parents shared information related to the foster placement and FG’s death on social media and ... they wish to, to talk about "we have two other children." But just the names, for their protection, should not be disclosed. So that would be the order of the Court. Counsel for Parents requested ... See Levine , 764 F.2d at 595 ; see also Care & Prot. of Edith , 421 Mass. 703, 706, 659 N.E.2d 1174, 1177 (1996) ("A general rule that bars any parent from ......
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