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Jack Greiner Published 2:24 p.m. ET May 20, 2020

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The First Amendment is pretty ubiquitous. It seems to pop up in lots of situations. But I rarely see domestic relations courts grapple with it. Married couples ending their relationship generally have other things to worry about than the Constitution. But a Massachusetts family court waded into the issue recently, which led to a decision from the Massachusetts Supreme Judicial Court upholding a First Amendment challenge.

Ronnie Shak and Masha M. Shak were married for approximately 15 months and had one child together. Ms. Shak filed for divorce Feb. 5, 2018, when the child was 1 year old. Prior to a custody hearing, Ms. Shak filed a motion asking the court to prohibit Mr. Shak from posting disparaging remarks about her and the ongoing litigation on social media. After a hearing, and some procedural wrangling, the court issued orders that included provisions against both parties as follows:

Recognizing that the orders may have constitutional implications, the court issued an order staying the effective date of the orders until an appellate court could review them. The case ultimately made its way to the Supreme Judicial Court.

The Supreme Judicial Court considered the family court orders a case of prior restraint. Prior restraint describes administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." As the court noted, [b]ecause 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.

In other words, a court may punish speech after someone utters it, but it can almost never prohibit a speaker from speaking in advance. In the former case, the speakers have the ability to present evidence and defend their speech. In the latter, theres no ability to do sothe order exists and effectively, the decision is made before the speaker has an opportunity to challenge the prohibition.

To justify imposing a prior restraint, a court must conclude the case presents a compelling state interest to protect against a serious threat of harm. And, even in that case, "[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."

This case simply didnt rise to the high legal standard. In the courts view (Ms. Shak)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.

The Supreme Judicial Court also felt that there were less restrictive means of addressing the issue than a prior restraint. As it noted, parents who are the target of disparaging speech may have the option of seeking a harassment prevention order ... or filing an action seeking damages for intentional infliction of emotional distress or 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.

Lets hope Mr. and Ms. Shak put aside the vitriol and focus on the best interests of their child. But the Supreme Judicial Court was right to protect the best interests of the First Amendment.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: The First Amendment and domestic relations - The Cincinnati Enquirer