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Massachusetts Appeals Court Strikes Down Child Custody Speech Restriction

Added 03-05-21 06:21:01pm EST - “From Savanage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond: We agree that a number” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “Massachusetts Appeals Court Strikes Down Child Custody Speech Restriction”. Below is an excerpt from the article.

From Savanage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond:

We agree that a number of provisions [of the child custody judgment, challenged by mother of a 10-year-old child,] placed an impermissible restraint on the mother's speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother's constitutional rights and must be vacated….

Prior restraints are "extraordinary remedies," and are "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." Shak v. Shak (2020). Accordingly, a prior restraint will not be upheld unless it is "justified by a compelling State interest to protect against a serious threat of harm," and the limitation on speech is "no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." In addition, an "important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.'" … [The s]tate "may not compel affirmance of a belief with which the speaker disagrees" ….

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State's interests in the restraints imposed; instead he simply stated that the orders were made in "the best interest of the … child," which alone is not enough to justify a prior restraint on speech. Absent from this record is any evidence demonstrating that any "harm expected from the [mother's] unrestrained speech is grave," or likely to cause harm to the child, or that there was no less restrictive alternative to mitigate any harm….

Thus, we shall remand the disputed portions of the judgment pertaining to the coparenting terms (paragraph numbered two) and communications between the parties (paragraph numbered three) so that the judge may modify those terms that infringe on the mother's First Amendment and Fourteenth Amendment rights, or make further specific findings justifying the restrictions imposed by the judgment….

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