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Divorcing couples have a First Amendment right to disparage each other on social media even if probate judges are worried the bitterness will impact the mental health of children caught between their warring parents, the states highest court has ruled.

In a unanimous ruling, the Supreme Judicial Court said free speech rights were wrongly curtailed by a non-disparagement order forbidding the husband or wife from posting about the divorce on Facebook and other social media sites until their child turned 14. At the time the order was issued, the child was a toddler, the SJC said.

We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech, the SJC ruled. The 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[but since] there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.

The social media ban was crafted by two Norfolk Probate and Family Court judges arising from the divorce between Ronnie Shakand his former wife, Masha M. Shak, who had one son born in 2017 during their 15-month marriage, records show.

In 2018, Ronnie Shak made multiple Facebook postings accessed by members of the former couples synagogue, Masha Shaks relatives, and a Facebook group with more than 700 members. The postings accused Masha Shak of wrongly blocking Ronnie Shak from seeing their son, leading Probate and Family Court Judge Virginia Ward to issue a two-paragraph order that banned both from posting any comments, solicitations,solicitations, references or other information regarding this litigation on social media."

Misha Shak sought a contempt citation when Ronnie Shak posted on Facebook after Wards order. Judge George Phelan then took up the matter and issued an 11-page order banning social media postings until the couples son turned 14. Phelan also put the ban on hold so the SJC could review the constitutionality of his decision, which he said he believed was necessary but raised significant legal issues that the top state court must address.

In a 13-page ruling written by Justice Kimberly S. Budd, the SJC said government has very limited authority to stop someone from publicly expressing their views under the First Amendment and Article 16 of the states constitution. Prior restraint is acceptable when harm is immediate and cannot be prevented by any means other than suppressing the free speech rights, the court noted.

But there was no evidence in this case, the court said in the decision issued Thursday.

The potential impact on a childs mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child, the court noted.

Budd added: As important as it is to protect a child from the emotional and psychological harm that might follow from one parents 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."

The court noted that probate judges - and litigants - may be able to curtail social media postings under other laws, by reaching a mutually agreed upon non-disparagement order, or by civil lawsuits for emotional harm. Judges can also caution the parents their social media postings will impact custody decisions, the SJC said.

But none of the laws are even necessary, the court noted, if the parents recognize whats most important during divorce litigation - their children.

"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,'' the SJC said.

John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe.

Excerpt from:
Divorcing couples have First Amendment right to disparage each other on social media, SJC rules - The Boston Globe

Updated: May 25, 2018:

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No, a Pandemic Doesnt Overturn the First Amendment: Massachusetts Enjoined From Banning Debt-Collection Calls or Lawsuits During COVID-19 - JD Supra

Would mandating public exposure of Russian hostile information operations in the United States violate the Constitutions First Amendment guarantee of free speech? At first glance, the question seems absurd how would the Bill of Rights protect Russian intelligence and propaganda operations?

But the issue arises because Russian messages aimed at American audiences may include comments from American sources, raising concerns that exposure would imply that the original authors of the content are part of a Russian disinformation campaign.

This could have a chilling effect on the original American authors right to free speech. They might be branded as fellow travelers a derogatory label from the Cold War or at the very least, useful idiots a term sometimes attributed to Lenin to describe nave individuals who were susceptible to Communist propaganda.

Neither label applies here. Unlike the early days of the Russian Revolution or Cold War era, todays Russian propagandists are not seeking to advance Communist ideology, but rather are intended to weaken its perceived foes. The American authors they cite are not advancing or defending Russian causes.

Russias hostile information operations are continuous and extend to a broad range of domestic issues. Russia aims to create confusion, foment distrust of all institutions, and deepen discord on just about every contentious topic, including national debates on race, immigration, policing gun control, and other issues. Russian efforts seek to amplify extreme positions, often magnifying dissonance and aggravating divisions by promoting the polar expressions of both sides of the issue. This is where domestic content is used.

The First Amendment issue recently came up in continuing discussions among participants in a workshop on Russias Weapons of Mass Deception that examined the threat of hostile Russian information operations and possible countermeasures. This was not new territory for them.

Most had long firsthand experience in this area. They had served in the White House, the State Department, United States Information Agency, the Pentagon, the CIA, the FBI, Voice of America and Radio Free Europe, as well as independent research centers under both Republican and Democratic administrations. They pointed out that the United States has a long history of countering Soviet and Russian disinformation, propaganda, and other influence operations targeting the West.

Among the options discussed, one of the most useful and least controversial countermeasures to Russian influence operations is public exposure. The public has a right to know what the Russians are doing, how they are doing it, and the scale of their activities. Current efforts contribute to awareness of Russian information operations but do not ensure public disclosure.

Exposure is not censorship. It does not prevent or regulate speech. It could be achieved by legally requiring self-disclosure, by mandating government exposure of foreign information operations, or by a combination of the two mandatory self-disclosure of Russian efforts and exposure of those Russian actors who do not comply.

Ample precedents exist for mandating transparency and limiting foreign interference. Persons and organizations operating in the United States on behalf of foreign governments must register as foreign agents. This law was passed in 1938 to preclude censorship.

The constitutional guarantee of free speech is generally considered also to include the right of Americans to receive speech from foreign speakers, including hostile governments. Imposing a disclosure requirement does not prevent this; it enables the public to evaluate the material better.

Other examples of the disclosure include campaign financing, the sponsors of political ads, and the routine voluntary practice by newspapers to label sponsored inserts that are paid for by foreign governments.

The United States rarely shuts down foreign news broadcasting in this country, even though the broadcasts may offer alternate viewpoints or criticism of U.S. policies.

However, the U.S. government has required RT and Sputnik, which are funded by the Russian government, and CGTN, which is funded by the government of China to register as foreign agents. This is not because of foreign-government funding, but because of a judgment that, unlike the BBC and the other foreign broadcasters, these three are responsive to current foreign-government policy goals. They are not independent.

This does not mean they cannot operate in the United States. Indeed, a Midwest radio broadcaster transmits Sputnik news daily. They must identify themselves.

While discussants were comfortable with the government exposing foreign information campaigns, they did not want to see exposure become a means of belittling or vilifying Americans whose content might be repeated in part or in whole, correctly or out of context, by Russian operators. Close oversight of any effort could be required to ensure that selective exposure is not abused to support political agendas. All of the respondents are mindful of the current partisan environment.

The lack of any effective American response could encourage Russia as well as other adversaries of the United States to continue or escalate their campaigns. Exposing Russian activities is a matter of policy and politics, not the Constitution or the law.

First Amendment concerns are important, but they do not protect hostile information campaigns by foreign actors, nor are they a legal excuse for inaction by the United States.

Brian Michael Jenkins is a senior adviser to the president of the nonprofit, nonpartisan RAND Corporation.

Read more:
Exposing Russian information operations does not violate the First Amendment | TheHill - The Hill

What policy did they violate? Administration refuses to say

The University of South Carolina is refusing to say how a so-called Zoombombing incident violated school policy, or how its threats to punish the perpetrators are compliant with the public institutions First Amendment obligations.

President Bob Caslen released a letter to the community last month, denouncing the cowardly perpetrators for hateful, offensive, despicable and terrible acts, but failing to list any policy violations.

Unknown users joined a Zoom conference hosted by the universitys Association for African American Students on April 24 and started posting offensive images and making racial comments, according to members tweets and video of the incident. One user can be seen in blackface, and another has a Nazi swastika behind him.

The person who posted the video speculated the unknown users were teenagers and asked white people to PLEASE check your kids.

While Caslen claimed the unknown users hacked into the conference, the AAAS Twitter account posted the meeting ID number hours before the meeting. Tune in tonight for our annual AAAS COOKOUT! the tweet read. Just because were social distancing doesnt mean we cant be social! Hope to see you there!

While Caslen told the community that the Division of Information Technology asked Zoom to investigate the incident, and that UofSCs Office of Equal Opportunity Programs was prepared to investigate if students were involved, the university did not specify what exactly it wants to know from Zoom or what its investigating.

Asked if the conference really suffered hacking, a Zoom spokesperson gave The College Fix the same response it has given to other media, saying it has updated several features to help our users more easily protect their meetings, such as meeting passwords and virtual waiting rooms by default.

The Office of Equal Opportunity Programs did not respond to Fix questions about the current status of the investigation, and university spokespeople either referred The Fix to others or declined to answer questions.

The student government also issued a statement condemning the Zoombombing: Discrimination of any form will not be tolerated within our university and those responsible for this hateful act will be held accountable. Asked what punishments it would like to see enacted and whether they could violate the First Amendment, Student Body President Issy Rushton directed questions to a university spokesperson.

MORE: UT rationale for threatening Zoombombers may be unconstitutional

Implies university punishes speech contrary to the values we hold as Gamecocks

Several Zoombombings have occurred in the weeks since online learning and online socializing largely replaced on-campus instruction and social activities, due to the COVID-19 pandemic.

UofSCs response mirrors that of the University of Texas, which also promised to punish any students found to have participated in the Zoombombing of a black campus organization. President Greg Fenves used similar language as Caslens, condemning the racial content of the intrusion rather than the violation of a content-neutral university policy. (The UT incident also did not appear to be a hacking but the public sharing of a meeting login.)

As public universities, UT and UofSC cannot punish students based on the content of their speech without running afoul of the First Amendment. After The Fix inquired about the basis for the threatened punishment, UT provided a content-neutral rationale for the first time.

In an April 24 statement on the incident earlier that evening, AAAS tweeted that unknown persons entered its virtual cookout and proceeded to post a plethora of images, videos and messages containing racist slurs and derogatory terms.

Twenty minutes earlier, President Caslen had tweeted that the Zoombombing was absolutely unacceptable & disgusting. He said the intrusion was marked by ignorance but didnt state a policy basis for the investigation he ordered.

AAAS also made clear it was seeking punishment for those users who logged into its meeting using the link it made public. We are working as hard as we can to advocate for the rights of our students and ensure these individuals receive the consequences they deserve, its statement read.

MORE:University of California cant legally ban phrase Chinese virus

Caslens April 25 statement, which is still his most recent as of Monday night, explained the steps the school will take to hold the Zoombombers accountable. Like the other statements in response to the Zoombombing, Caslen failed to allege what policy if any the perpetrators violated.

Instead, he repeatedly denounced the content of the reprehensible intrusion and implied that the taxpayer-funded university will punish speech that runs contrary to the values we hold as Gamecocks.

The Foundation for Individual Rights in Education gives the university its lowest speech-code rating, a red light, meaning it has at least one policy that both clearly and substantially restricts freedom of speech.

One of those policies is the Carolinian Creed, cited by Caslen, which requires members of the university community to agree to several restrictions on their constitutionally protected speech. For example, members must pledge to avoid ridiculing and insulting others, affirm that others need conditions which support their work and development, and refrain from behaviors that are insensitive or unjustly or arbitrarily inhibit others ability to feel safe or welcomed in their pursuit of appropriate academic goals.

The creed appears to undermine the universitys non-discrimination policy, which states: The University vigorously embraces students rights to the legitimate freedom of expression, speech, and association. Nothing in this policy is intended to impede the exercise of those rights protected under the First Amendment of the U.S. Constitution.

Caslens statement didnt explicitly say the university will punish the perpetrators if any is found to be a student. We will be vigilant in responding to this incident was as far as he would go.

Several staff members declined to comment, including Peggy Binette, the schools communication director. She directed The Fix to Jeff Stensland, director of public relations, to answer questions about the universitys response and evidence for Caslens hacked accusation.

After many emails and calls from The Fix seeking the current status of the investigation and the universitys explanation of how its response comports with its First Amendment obligations, Stensland avoided a direct answer.

The incident is still under investigation so its not possible to share additional details at this time, Stensland said. AAAS did not reply to questions regarding if it screened potential attendees after they entered the meeting code it had made public hours before the virtual cookout.

MORE: UofSC invites students to sign their own expulsion papers

IMAGE: Mike Focus/Shutterstock

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University of South Carolina tests First Amendment obligations with threats to punish Zoombombers - The College Fix

SAN DIEGO (KUSI) Authorities announced today that they have no grounds on which to seek criminal charges against a grocery shopper who said he donned a Ku Klux Klan-style hood at a Santee supermarket out of frustration over having to wear a facial covering in public during the coronavirus crisis.

The man, whose name has not been publicly released, concealed his head with the pointed white hood during a May 2 visit to a Vons store in the 9600 block of Mission Gorge Road.

Other patrons took photos of the masked man and posted them online, drawing outrage from local leaders and civil rights organizations that condemned the display of a key symbol of a racist hate group.

When questioned by detectives, the man expressed frustration with having people tell him what he can and cannot do during the pandemic, according to a statement from the San Diego County Sheriffs Department.

He said that wearing the hood was not intended to be a racial statement, the agencys statement says. In summary, he said, It was a mask, and it was stupid.'

After interviewing witnesses and reviewing video evidence, investigators determined that there was insufficient evidence to charge the man with any crime, according to the department.

That said, this incident should serve as a reminder for anyone contemplating wearing or displaying items so closely associated with hate and human suffering that our society does not hold in high regard those who do so, the agency stated. Santee is a city of families, and the community is rightfully disgusted at this mans despicable behavior.

Less than a week after the episode, a similar incident took place at another grocery outlet in the same eastern San Diego County city. Deputies responding to a reported disturbance at a Food 4 Less in the 9400 block of Cuyamaca Street in Santee on Thursday evening arrived to find a shopper wearing a mask decorated with a rectangular swastika sign.

When deputies asked for the symbol to be removed, the man complied, according to a sheriffs statement. Sheriffs investigators will continue to look into the matter. The Sheriffs Department does not condone hate or acts of intolerance. We are a county that is welcoming of people from all backgrounds.

The mans name was not released.

The episode prompted expressions of shock and dismay online, including one from county Supervisor Dianne Jacob, who represents Santee and other East County neighborhoods.

Sad, vile acts like this must not be tolerated here or anywhere else, she tweeted Friday afternoon. Its deeply offensive to the community and our entire region.

Legal Analyst Dan Eaton joined KUSI to talk about these grocery store incidents.

More here:
Are symbols of hate on face masks a hate crime or are they protected by the first amendment? - - KUSI