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Free Speech Clashes with Child Welfare
Episode 41st December 2021 • Legal Judg(e)ments • Bernkopf
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Bob sits down with Jennifer LaManna to talk about her forceful and successful defense of the First Amendment in Shak v. Shak. This episode is a must-listen for all divorce practitioners.

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that time. On February fifth,:

Based on these allegations, the judge ordered Ronnie’s removal and granted Masha sole custody of the child temporarily. In what became a contentious divorce proceeding. Ronnie took to defending himself not just in court, but also in the court of public opinion, including on social media.

Masha requested an order prohibiting Ronnie from posting disparaging remarks about her or the divorce proceedings on social media or to third parties. Ronnie persisted. Thereafter, the judge in the Probate and Family Court entered a non-disparagement order, preventing the parties from disparaging one another. And a second judge allowed a similar but more narrowly tailored order, citing the best interests of the child in the state’s compelling interest in protecting children as justification for the order. Uncertain as to the constitutionality of the order, however, the second judge reported the case to the appeals court due to the important first Amendment issues at play.

Specifically, the second judge asked whether non-disparagement orders constitute an impermissible prior restraint on speech. Massachusetts Supreme Judicial Court ultimately undertook review of the case. The question on appeal was whether a court order prohibiting a parent from certain types of speech violates the first Amendment or in the context of divorce litigation and given the state’s compelling interest in protecting the well-being of children if such non-disparagement orders pass constitutional muster. This case pits society’s interest in protecting its young against the fundamental and weighty rights to free speech. This is Shak versus Shak.

Welcome to Legal Judg(e)ments, where we tackle litigation and trial strategy by analyzing and talking about real legal cases. I’m Bob Stetson, a Boston based trial lawyer at Bernkopf Goodman, which sponsors this podcast. Today, we’re looking at a case that stands at the intersection of family law and constitutional law.

The case is Shak versus Shak. With me is Jennifer LaManna, a seasoned litigator and trial lawyer who successfully represented Ronnie Shak, the father, and establish some pretty important precedent in this very interesting area of the law. Welcome, Jennifer, thanks for joining.

Jennifer LaManna: Thank you so much. It’s my pleasure to be here.

Bob: So, I want to start with the SJC’s decision in your client’s favor. The SJC looked at the First Amendment and discussed the weighty reasons for the presumption against prior restraints on speech. A prior restraint, of course, is an order prohibiting speech before the speech actually occurs. Citing to the fundamental rights of speech to a free society, the court stated that in order to overcome the presumption against prior restraints, in other words, in order for the non-disparagement order to be constitutional, the harm to be avoided must be “grave,” and the probability of that harm occurring in the absence of the prior restraint must be “all but certain.” After laying this analytical framework, the SJC look to the specific circumstances of this case and basically held that there was insufficient evidence to support that the speech at issue, which of course, was mainly social media posts, would harm this particular child, who was extremely young and unable to comprehend social media. The SJC, therefore, concluded that the order that was issued was unconstitutional, but the court did not state that these types of orders were across the board unconstitutional.

So, the first question is, under what circumstances could a non-disparagement order like this pass constitutional muster?

Jennifer: That is a great question. The court very much focused, as it had to, on the clear and present danger line of cases, and that clear and present danger in every other context is clear, and it’s present, and it’s obvious we all understand why someone cannot yell fire in a crowded theater. So, in the family law context, where the standard for so many rulings is best interests of the child, people get very comfortable simply alleging this isn’t in the child’s best interests. But when you’re coming up against a fundamental right, like speech, that child’s best interests need to be identified with specific harms, and in this particular case, it wasn’t there. But if you could demonstrate, for example, a child who had special needs, a child diagnosed with anxiety who was unable to focus in school because of the level of conflict between his parents, a child who was exhibiting specific identifiable injury from his parents, contentious behavior or this type of disparagement, I think you could get a non-disparagement order in that situation.

Bob: This this case is so interesting on so many levels. And you know, of course, the constitutional issues just are all over this. And you know, it’s so rare, I think for many litigators in the state courts to come up against these constitutional issues.

So, I want to talk about how you kind of came to this broad-based constitutional argument here. So, when I looked at the decision, the first line, the very first line of the decision I want to quote it says, “non-disparagement orders often are issued as a means to protect minor children during contentious divorce or other child custody proceedings in order to protect the best interests of the child.”

Now I took from that statement that at least prior to the Shak decision, that these types of orders were very commonplace in divorce practice. Of course, I’m not a divorce attorney, so I don’t know. But I’m assuming that they are. And so, my question for you is, how did you decide to challenge this well-established practice and how did you… Is this something, for instance, that you’d been ruminating on for a period of time?

Jennifer: I absolutely had been. And because it is, they are commonly issued. They are generally, however, issued by stipulation. So, in the process is…. a quick primer, in the Probate and Family Court in the divorce context, parties very often out in the hallway, back in the old days when we entered courthouses, worked out stipulations and someone always says, you know, we should have something in there that says neither party shall disparage the other. Just kind of a standard. Let’s play nice in this divorce type of language. They get written into stipulations. You go into the courtroom and the judge enters that stipulation. It becomes an order of the court as if you’d had a contested hearing. And this is what the judge concluded. So, I have seen very few non-disparagement orders that were not the product of a stipulation. Never in one of my cases.

But I was ruminating on it because it is this knee jerk reaction, I think for people who practice in probate and family court and also in the juvenile court, in the care and protection context, to have the sense that they’re entitled to an order barring dissemination of some of this information.

And so, about a year before the Shak case, I had a juvenile court case where my clients were outraged by what the Department of Children and Families was doing with their grandchild. They were rather well-connected people and they had told one of the social workers like, we’re calling our senator and probably the press. And in my first appearance, no hearing, no discussion about what they wanted to say, what their concerns were. The juvenile court judge announced, I’m issuing a gag order. And you know, we’re going to have a hearing on that? Are we going to have a discussion about that? And the answer was no. And the order issued. My clients didn’t want to appeal it. They felt that there was a risk to antagonizing this judge any further. But I was I was extremely bothered by it.

And so, I spent a lot of time thinking about it. And so, Masha Shak was the victim of that because when her case came up and her attorneys announced, we want this non-disparagement order, my position was absolutely not.

Bob: And it was fresh on your mind, and you had already sort of worked through some of the issues that you plan to address. Wow. Very interesting. It just goes to show you that, you know, as litigator, so much of strategy comes from just daily experience and chance.

I mean, what are the chances that, only a year after you started really thinking about these issues that this this case presents itself to you? That’s incredible.

Jennifer: It was, it was. It was interesting too, because there was the only other case that was out there, addressing this type of issue was a care and protection decision where a dad was very vocal and trying to go to the press about what DCF was doing to him. They’d taken his children away and the lower court judge there issued a gag order. And the SJC, in a very brief decision that was merely a blip on the radar, said, “You need more than this. It’s not enough.” He was told he couldn’t speak his children’s names to the public. They needed to be kept confidential and the courts – You know, we need more than that before. We’re going to say that somebody cannot complain about governmental action directly affecting his family without him meeting some exalted standard that no one’s articulated yet, and that makes perfect sense when you think of it in that context.

Bob: Sure.

Jennifer: But that was… that was it. and a pen, apparently. Certainly. The justice side appeared in front of in Essex, Essex juvenile court hadn’t read. It wasn’t familiar with it. And so, I had that case very much on my mind. And then when Masha’s attorneys pushed the issue because not only did, they request the non-disparagement order, but they attempted to enforce it using the contempt power of the court. And that’s when matters came to a head. And we had Judge George Fallon, a very thoughtful judge who gave us a lot of time that day and was very intrigued and was asking a lot of hypotheticals like, “Well, what if a judge were to say this? I think you would run a foul,” and he really thought about it. So, we were actually delighted when he when he certified the question because it was certainly a question that needed to be answered.

Bob: Absolutely. I want to talk a little bit more about strategy and you started to touch on it in your last answer, I think naturally. But in this case, you know, you have a father who you know, is being accused of some pretty nasty things. And you know, I read, I read your brief, I read all the briefs. So, I have a sense for, you know, I think why he was saying the things he was saying on social media and what his motivations were there, too, to really try to defend himself. So, I have that impression, but he’s being accused of being nasty. And on the other, you know, the flip side, you have this sort of helpless young child, and you know, you’ve got the court that’s trying to, you know, really protect that child.

And so, you know, we as lawyers, of course, a lot of what we do is messaging. You know, I think in this case, at least on its face, you have a perhaps less than sympathetic client going up against, you know, very weighty issues of child protection. And so how did how did you approach that? What did you what did you do from a messaging perspective to sort of overcome, I think that that barrier when it comes to just the human, the natural human need to evaluate sympathies in any case, how did you overcome that here?

Jennifer: One of the things that really was a standout element of Judge Fallon’s order, the one that was overturned, was he listed sort of a George Carlin-esque Seven Dirty Words about things that he didn’t want people to use. None of those words, and they were all very bad words. None of them, wherever used by Ronnie Shak. So, one of the things that I felt was incredibly important in my brief and in my oral argument was to make sure the court understood that that was a prophylactic order. And it was not in any way a reflection of how Ronnie had actually behaved. Ronnie’s real crimes, so to speak, were that he was defending himself and he wasn’t defending himself by going on the offensive. He was quoting on Facebook, “I’m accused of doing this. It’s not true. I’m accused of this. It never happened.” And he called her an evil liar in a private message to his sister’s husband. That that was really the sum total of the disparagement, but it was very important based on Masha’s allegations and the order itself, I felt, to make it clear from the outset and hammer at home for the SJC that he didn’t actually go on Facebook and with a stream of vitriol and profanity, that did not happen. He was actually, I thought, in many ways, a very sympathetic figure.

He was a young guy, a young dad, who initially was thrown out of his home on very short notice. Masha had consulted her attorneys, three weeks before she went in on her emergency motions. She had three weeks to assemble affidavits and pleadings, and for reasons that were unclear to me, the first judge scheduled that hearing in less than 24 hours. So, Ronnie was served with a notice. Get out of your home. Grab some things. The police don’t give you time to pack when they when they serve these orders, and then we’ll see you in court tomorrow, too.

He had no time to hire counsel. He had no money to hire counsel. So, he represented himself at that initial hearing and he had no time to assemble a defense. So, he took to social media, and he did other things that I think the SJC wasn’t aware of that that made it more understandable that Masha took this to the level she did. But at one point he posted some things on actual posters on holes in the neighborhood.

Bob: I didn’t pick up on that in the pleadings.

Jennifer: It wasn’t in there. And I’m happy to say but he… But none of that, I assure you, was done on the advice of counsel. But I felt that he was a sympathetic figure if I could portray him as what he was as someone who was desperately fighting to clear his own name. And so, part of this, one of the things I talked about in my brief is a suggestion that the plaintiff was protected from all of the allegations she made about him that you mentioned and about the cocaine use, et cetera, that she was somehow… She had this judicial cloak of invincibility. She could make those arguments in a public forum, but he, going into a public forum and saying all of that is a lie was somehow disparaging of her and not in the child’s best interests. And Justice Lang responded very well to that argument. During the argument, she specifically taxed Masha’s counsel, saying, “How did he actually disparage her? What did he actually say?” Because he really didn’t. So, this was an ideal case to go there. If I’d had a client who was much less sympathetic, a client who used those seven dirty words, a client to… or even use even more abusive language. I don’t know that we would have gotten the result, and I don’t know that the SJC would have wanted to touch it. It might have stayed at the appeals court level.

Bob: It just goes to show you that how important the messaging was, and you I think you did an effective job of really putting it in context. I mean, one of the things that stuck out to me is, you know, you have these allegations of cocaine use, you know, you’re thinking, “Well, OK, I mean, it must be true. You know, they live together. You know, why would she make something like that up?”

But then you know, you look at your brief and you say, “Hey, this guy got drug tested.”

It was like a hair follicle test comes back negative. So, you start to think, OK, well, you know, maybe now I understand where this where this guy is coming from, you know, he’s a young father, like you said.

And you know, putting those the actual words that he used in that context was obviously something that was very impactful. And in that I think was shown through in the decision here. You know, one of the things that I did want to touch on, you know, that this case sort of implicates parental rights in a way that maybe goes even beyond the First Amendment. You know, in some respect, a non-disparagement order itself, you know, it’s almost like legislating parental conduct. Now, of course, there are plenty of circumstances where that’s permissible.

You know, you know, you can’t abuse your child. That’s criminal conduct. Of course, that’s permissible. But you know, and kind of getting away from this case. In talking more generally about this area of law, you know, I can imagine that there are circumstances where orders like this would lead to a slippery slope where you know you’re really not talking about only preventing criminal conduct, but you really start to infringe on maybe due process rights. And, you know, we’ve talked about it a little bit today. Of course, the best interest of the child is such an important piece of what the probate and family courts do in these divorce proceedings, child custody proceedings and things of that nature. But there are also fundamental rights to parent your child. And so, the question I have for you is, you know, where is that? Where is that line? You know, I’m just I’m fascinated again. I don’t do this kind of work.

So, this case is like all new for me. Where’s the line?

Jennifer: For me, it’s a clear line I very often see one party attempting to use the court to impose their style of parenting. And so, people come into the court, and they try to recast their spouse or ex-partner as this clearly unreasonable person, and so you can understand, judge, why I need these orders because I’m trying to raise my children correctly. But no Probate and Family Court judge has any business stepping into that type of minutia.

So, one of the arguments that has been made in other jurisdictions about non-disparagement orders is the idea that if parents are allowed to go into court and just air all the dirty laundry, this could come back to impact a child.

Well, there’s no fundamental right to a good reputation in the community. Some people have families that aren’t very well liked. Some people have parents who have extremely unpopular or odd political views, for example. And I felt that if you, if you can say that calling your ex-wife a liar after she’s accused you of some things is not in your child’s best interests. That is not that far for you to be able to come in and say, Judge, we live in a very liberal, very liberal district and his father is a Trump supporter. And you know, it is, you know, it’s really impacting Joshua, and we’re having a really hard time with that. And so, I’m just asking Judge that he not take him to rallies or he and I could absolutely see something like that happening. And that was that’s always been one of my concerns because, you know, the Probate and Family Court is kind of the Wild West in some ways, you know, it’s a very busy docket. The cases come in. They very often have, you know, 40 cases on. Everybody wants some court time. So, the judge is hearing things and making some snap judgments. They have to, and there’s not time to get into the meat and potatoes of every single issue that comes before the court.

So, it’s very easy for the court to say things like neither parent shall discuss their political views with the children, or the father shall not post his Trump-Pence flags all over his pickup truck when he comes to the child’s soccer game. And you know the mother’s saying he wouldn’t come out of the dressing room, things like that, but without thinking what fundamental right if I just impacted? I have no right to tell this father what he can post, what he can say, how he can present himself to the world. Because I’ve decided sitting up here with my robe on that it would be better for this kid if he didn’t. It might be. But that is his dad. And some of us have weird dads, right?

Bob: Yes, there’s no question about it. You know, in that sort of… It touches on a point you started to address when you were talking about the second judge and the contempt proceedings here, which is that, you know, as you pointed out, a lot of these orders are entered voluntarily. And the SJC, even in the decision, pointed out, you know, hey, parents, if you’re trying to do right by your kids, you know, you ought to consider entering into one of these things voluntarily, which, you know, as a practical matter that may be very appealing to most parents because it saves litigation, which can be expensive, time consuming and all of that. But even with voluntary orders, I think you still run into enforcement problems. You know, you got a mother who says, you know, “Hey, your father is a is a drug addict. That’s, that’s bad. He’s bad,” You know, maybe it’s factual. Maybe it’s not. But you know, when you’re when you’re going to look at the enforcement mechanism, which I presume is through contempt proceedings, where does the court even begin to get involved in that type of minutia? I mean, what does that even look like?

Jennifer: It’s an interesting… so the in the Probate and Family Court, you get an order if it’s clear and if it’s a clear and unequivocal command of the court and you can demonstrate someone’s knowledge of the order and ability to comply, you can seek a contempt. And obviously, there can be civil, criminal, financial penalties for being found in contempt. So, the problem you have with this type of order, of course, is what is disparagement? What does that even mean? Right? Right. So, something that might be considered. “I wasn’t disparaging him. I was trying to explain to Jr why it was that his mother once again didn’t pick him up on time by explaining to him that she was dealing with some mental health issues.”

Is that disparaging, or is it something this kid needed to hear and understand? And so, I think that’s the first hurdle is what is disparagement? And then the next one is proof issues abound because, you know, you’re not generally allowed to pop into court and say, my child told me this. We very rarely bring children into the Probate and Family Court to testify. So, you have child hearsay issues and of course, you have a party that’s particularly emotionally involved in the outcome they want to have. So, the parent saying, “he’s telling my child, you know that I’m a tramp sleeping with half of Boston,” and the father saying, “I never said anything of the sort, I said, your mother has two boyfriends” or whatever. And so, you have this emotional layer. People come to divorce court with a history that’s just that’s the nature of the nature of it. So, all of you have all of that coming into play. And the court is supposed to assess speech and whether or not they can legislate it, whether or not they can regulate it. And I think it’s a very murky area. And while the SJC absolutely said feel free to go negotiate these orders, I will tell you that I’m not in the position I’m taking as I am not entering into a stipulation that will result in my client having a potential contempt action brought against him or her.

There are certainly clients who I would know I know would never do anything like that. But why set them up? I don’t think the Probate and Family Court should be regulating people’s speech, so I’m not going… I have not made it my practice to start negotiating these orders. I give a hard no at the moment when I when I’m asked.

Bob: That’s totally understandable. But you know, you look at the SJC decision and I feel like they easily could have said, you know, these things are off limits.

You know, they could have taken that that position, but maybe given the fact that there were some sympathies in favor of your client here and they didn’t have that sort of worst-case scenario of, you know, really abusive and threatening speech or something like that at issue. They took a more, you know, kind of savvy incremental approach here like, you know, hey, what? You know, clearly this one is unconstitutional. We’re going to leave the door open for, you know, a different set of facts. We’re not going to speculate. Because here, you know, they really didn’t. And they pointed this out in the decision. We’re not addressing the broad constitutional questions that the Probate and Family Court judge certified. We’re evaluating whether this particular order is constitutional or not, and it’s not.

But they’ve sort of left it open. And so I imagine some of these are going to continue to be litigated, especially where, you know, I think attorneys like yourself are going to say, “Hey, no, we’re not, I’m not going to put my client at contempt risk, you know, risk for getting bogged down in expensive litigation over, he said she said with, you know, very difficult evidentiary issues. I’m just not going to do it. I’m not going to deal with it.”

So, you end up in court. What does the, what does the evidence actually look like? You know, what kind of evidence can we expect in this post Shak litigation?

Jennifer: Well, one of the things I’ve heard from practitioners both in the Probate and Family Court and the juvenile court is a number of people have reached out to me to tell me they are using this specific Shak language that the SJC used where they said, you know, concerns of harm do not equal harm. You need actual harm. You need specific facts. And so that I think in a post Shak world, you can no longer come into court with these generalized statements about what the best interests of the children require.

You’re going to need to be able to make specific references to the child at issue and to the behavior you’re looking to regulate. It’s not going to be enough. There’s no longer a presumption that negative comments by one parent about the other in a public forum are necessarily harmful to a child.

There are certainly situations where you can clearly see it could be harmful. Direct statements to a child. A child who is friends with mom and dad on Facebook and therefore reading all of these things. These are the types of behaviors that can be that can be regulated even if the speech isn’t regulated and the SJC talks about that too. So, in a post Shak world, you might be able to say what you want, but there can be consequences for it. The consequence, however, I think clearly, post Shak, is the consequence cannot be a prior restraint on your speech.

But, just like a lot of other speech, there’s a punishment afterward. And just like defamation, we can’t issue orders saying you’re not going to defame these people. We can’t issue blanket orders saying, you can’t say this about this person, but we can say that if you do it and you what you said wasn’t true or what you said was done maliciously that there’s a penalty for that.

Bob: Civil remedies possibly impacting your custody proceedings. Let me ask you, though, in terms of the evidence and you know, you’ve talked very clearly that you need to show a concrete harm. Are we talking about medical evidence? Is that what’s necessary here in order?

Jennifer: I think in certain contexts, yes, again, it’s going to depend on the age of the child. It’s going to depend on the language used. It’s going to depend on the state of the litigation, I think, as well.

So, if you’re dealing with, for example, post judgment, parenting orders are already in effect. The case has been resolved and someone is coming back in trying to enforce this using the contempt power or seeking to modify the parenting time by saying, you know, “Bill and I worked out a 50/50 custody arrangement. But since we put that into place, this is how Bill has been acting.”

That’s not a prior restraint on speech. That’s a look, it’s the consequences of your actions. And I don’t think you would need medical evidence in that context.

But I think you are absolutely, if you’re seeking that prior restraint and it’s not just a prior restraint is a content based, prior restraint. It’s viewpoint discrimination. If that’s what you’re seeking you, you should come to the court armed with something pretty substantial.

Bob: Last question, what’s the teachable moment from the Shak case?

Jennifer: I think the most teachable moment from the Shak case is that, you know, down in the trenches in the Probate and Family Court, these lofty principles about equal protection and due process and the First Amendment deserve attention and respect. And it is not – expediency cannot be the order of the day. These are people’s lives, and it’s not just about the money and who’s getting the 401(K). I think that after Shak, I hope the Probate and Family Court judges and practitioners will remember that the orders that they’re seeking are impacting people’s ability to exercise fundamental freedoms.

Bob: Jennifer, congratulations on a tremendous victory. Thank you so much for joining.

Jennifer: Thank you for having me.

Bob: That’s our show. Check out our show notes for more information on today’s case. Also, if you are involved in an interesting civil case or know about one that you think would be a good topic for the show. Reach out to me at rstetson@bg-llp.com.

Don’t forget to subscribe to this podcast and of course, if you like what you heard. Please leave us a positive review. Thanks for listening!

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