Shak v. Shak

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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
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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
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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?"
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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."
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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
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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.
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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.