Shak v. Shak

• Citation: 484 Mass. 658,144 N.E.3d 274
• Decision Date: 07 May 2020
• Docket Number: SJC-12748
• Parties: Masha M. SHAK v. Ronnie SHAK.
• Court: United States State Supreme Judicial Court of Massachusetts

484 Mass. 658

144 N.E.3d 274

Masha M. SHAK

v.Ronnie SHAK.

SJC-12748

Supreme Judicial Court of Massachusetts, Norfolk..

Argued November 4, 2019.

Decided May 7, 2020.

Richard M. Novitch, Framingham, (Gary Owen Todd & Julianna Zane also present) for the mother.

Jennifer M. Lamanna, Revere, for the father.

Ruth A. Bourquin & Matthew R. Segal, for American Civil Liberties Union of Massachusetts, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

BUDD, J.

Nondisparagement orders often are issued as a means to protect minor children during contentious divorce or 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 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 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 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, 388 N.E.2d 674 (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, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (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 Amendment.⁴ Care & Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174 (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, 113 S.Ct. 2766, 125 L.Ed.2d 441 (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, 659 N.E.2d 1174 ("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, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (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").

As "one of the most extraordinary remedies known to our jurisprudence," Nebraska Press Ass'n, 427 U.S. at 562, 96 S.Ct. 2791, 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, 51 S.Ct. 625, 75 L.Ed. 1357 (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 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, 95 S.Ct. 1239, citing Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 n.10, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). See Nebraska Press Ass'n, 427 U.S. at 570, 96 S.Ct. 2791, 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, 51 S.Ct. 625 (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, 95 S.Ct. 1239, 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, 95 S.Ct. 1239, quoting Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 13 L.Ed.2d 649 (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, and (c) "how effectively a restraining order would operate to prevent the threatened danger." Nebraska Press Ass'n, 427 U.S. at 562, 96 S.Ct. 2791. "[T]he barriers to prior restraint remain high and the presumption against its use continues intact." Id. at 570, 96 S.Ct. 2791.

We have acknowledged that prior restraints "require an unusually heavy justification under the First Amendment." Commonwealth v. Barnes, 461 Mass. 644, 652, 963 N.E.2d 1156 (2012), quoting New York Times Co. v. United States, 403 U.S. 713, 733, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (White, J., concurring). Given the "serious threat to rights...