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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

Around the nation, state lockdown orders during the coronavirus pandemic have led to sharp debates over the trade-offs inherent in such orders. We have no doubt that states have and should have extremely broad authority to take steps to protect public health during an outbreak that has sickened so many Americans.

But we also have no doubt that some of the restrictions imposed by states are utterly inconsistent with the First Amendment.

Consider California. Three weeks ago, hundreds gathered at the Capitol to protest the state's stay-at-home order. In response, the California Highway Patrol indefinitely banned all in-person protests at state facilities.

Such a ban on protests is at odds with the way California treats other activities. Gov. Gavin Newsoms initial stay-at-home order carved out exceptions for socially distant exercise and visits to gas stations, pharmacies, grocery stores and other essential businesses. On May 8, Governor Newsom permitted bookstores, toy stores, clothing stores and florists to reopen for curbside delivery, yet the blanket ban on protests remains.

California is not alone in ignoring the constitutionally protected status of public protests. In New York City, protesters who were wearing masks and abiding by social distancing requirements were arrested or issued summonses. While we greatly, greatly respect the right of people to protest, there should not be protests taking place in the middle of a pandemic, New Yorks police commissioner, Dermot Shea, has said. Mayor Bill de Blasio has asserted that people who want to make their voices heard there are plenty of ways to do it without gathering in person.

The power of the states to restrict protests at parks and state capitols is very limited. States can surely prohibit violent protests, as the First Amendment protects the right of the people peaceably to assemble. But other restrictions must be narrowly tailored to serve a significant government interest, which is precisely what Californias ban is not.

California could permit protests on the condition that individuals abide by social distancing guidelines and mask rules. It could reasonably limit the number of protesters so that social distancing is feasible. To protect the health of state employees, it could impose buffer zones around entrances and exits at state buildings.

But that is not what California did. Instead, it chose to indefinitely strip Californians of their fundamental right to protest.

In one of the first rulings on the subject in the new Covid-19 world, a federal judge on May 8 upheld Californias ban on in-person protests. The court reasonably concluded that California has a legitimate interest in limiting person-to-person interactions and that permitting 500- or 1,000-person protests would undermine that interest.

But in the absence of any narrower alternative having been provided by the litigants, he upheld the ban. The courts decision was at a preliminary stage of the case and is subject to later change.

The courts ruling, which afforded the California order substantial deference, remains troubling. Applying the emergency measures test, the court held that it could strike down Californias ban only if it bore no real or substantial relation to public health, or if the measure was beyond all question a plain, palpable invasion of rights secured by fundamental law. The Supreme Court developed that test to ensure that states have the authority they need to protect public health; it is not a license for suspending constitutional rights.

Protecting public health while preserving the freedoms of speech and assembly is no easy task amid a pandemic. But the Supreme Court has declared that the First Amendment reflects our profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.

Our commitment to public debate on public issues has been a lodestar through good times and bad. As our political leaders navigate our collective response to the worst public health crisis in a century, it is critical that we preserve, to the maximum extent possible, opportunities for political dissent. The First Amendment sometimes requires discomforting results to protect the liberties of our people.

Floyd Abrams, a constitutional lawyer who is a visiting lecturer at Yale Law School, is the author of The Soul of the First Amendment. John Langford is counsel at Protect Democracy.

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The Coronavirus Protests Are Protected by the Constitution - The New York Times

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If you somehow zapped fourth president of the United States James Madison through a wormhole and, the moment he appeared in 2020, asked him, Does the First Amendment protect putting a tracking device on beloved fitness guru Richard Simmonss car?, he would probably be too busy screaming to answer. But Californias 2nd District Court of Appeals wasnt on Thursday, when it upheld a judges ruling that the First Amendment does not protect Bauer Media, former owners of In Touch Weekly, from being sued after a tracking device was found on Simmonss drivers car.

According to Variety, a three-judge panel determined Simmons can move forward with a lawsuit accusing In Touch Weekly of invasion of privacy after Scott Brian Mathews, a private investigator hired by the magazine, placed a tacking device on the vehicle in 2017. Bauer Media filed a motion to dismiss the suit under Californias anti-SLAPP laws, created to subvert frivolous lawsuits designed to intimidate outlets from publishing news, alleging they only hired Mathews to take photos of Simmons during a hospital visit. Mathews pleaded no contest to placing the device, and received probation.

If youll recall, 2017 was the year the Missing Richard Simmons podcast was busy speculating about the unexplained retreat of Simmons from his once very public life. Among the podcasts many suggested reasons for the fitness moguls social disappearance include allegations of manipulation on the part of a long-time employee, elder abuse, or Simmonss alleged decision to transition. Simmons himself denied any abuse after the LAPD performed a wellness check on his home.

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The First Amendment Does Not Protect Putting a Tracking Device on Richard Simmonss Car - Vulture

On March 19, the Ohio Department of Health ordered the closure of "hair salons, nail salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations" as part of the state's efforts to combat the spread of COVID-19. Nearly two months later, Gov. Mike DeWine announced that hair salons and barber shops would be allowed to reopen shortly, so long as they followed various social distancing and public health requirements.

There was no mention of letting tattoo artists get back to work. "We were closed with salons, barbers, tanning salons and the like," the Oxford, Ohio, tattooist Steve Cupp told WLWT5. "And we assumed once they opened, considering the proximity they have to their clients and the proximity that we have to ours, that we would be reopened with them. But we were excluded." The state eventually announced that tattoo shops would finally be allowed to reopen on May 15.

This sort of government action raises some interesting legal questions, especially for the numerous tattoo parlors that remain shuttered in other states. Do tattoo artists have a case to make against coronavirus closure orders? Does the Constitution protect a tattoo shop's right to remain openat least in some limited fashionduring the pandemic?

The idea is not so far-fetched. Both state and federal courts have recognized tattooing as a constitutionally protected form of free expression. Up until the year 2000, for example, it was a crime in Massachusetts, punishable by up to one year in prison, for any person except a doctor to mark "the body of any person by means of tattooing." But in Lanphear v. Commonwealth of Massachusetts, the Massachusetts Superior Court struck down that statewide ban on the grounds that "the act of tattooing is inseparable from the display of the tattoo itself and is expression protected by the First Amendment."

The U.S. Court of Appeals for the 9th Circuit reached the same conclusion in Anderson v. City of Hermosa Beach (2010). At issue was that city's ban on tattoo shops within city limits. "The tattoo itself, the process of tattooing, and the business of tattooing are forms of pure expression fully protected by the First Amendment," declared a unanimous 9th Circuit panel.

Which brings us back to the idea of a tattoo artist mounting a legal challenge to a coronavirus closure order. In United States v. Carolene Products Co. (1938), the U.S. Supreme Court said that when the courts review a regulation "affecting ordinary commercial transactionsthe existence of facts supporting the legislative judgment is to be presumed." In other words, judges were told to be extremely deferential towards the government when it is regulating economic activity.

But Carolene Products did not endorse judicial passivity on all fronts. "More exacting judicial scrutiny," the Court said, would still be appropriate in some cases. For example, judges should not defer to the government by rote in matters involving "a specific prohibition of the Constitution, such as those of the first ten amendments." Lawyers now call this exacting approach "strict scrutiny." In the words of Black's Law Dictionary, for a law or regulation to survive strict scrutiny review, it "should only be as restrictive as is necessary to accomplish a legitimate governmental purpose."

"The business of tattooing," as the 9th Circuit put it, is "fully protected by the First Amendment." Which means that any regulation of a tattoo shop should trigger strict scrutiny review when that regulation lands in court.

A public health order designed to curb the spread of an infectious disease like COVID-19 would seem to pass the "legitimate governmental purpose" prong of the strict scrutiny test. But what about the second prong, which requires the regulation to be the least restrictive means of pursuing that legitimate state end?

Here is where the tattoo shops may have a case. So long as they can operate safely during the coronavirus outbreakby requiring artists and clients to wear masks and gloves at all times, by routinely cleaning equipment and surfaces, by carefully practicing social distancing, by limiting the number of people allowed inside the shop, etc.a total shutdown of the business would not seem to qualify as the least restrictive means available for achieving a legitimate government purpose, even amid a pandemic.

Related: "Tattoos vs. the State: Free speech in skin and ink"

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Do Tattoo Shops Have a First Amendment Right To Remain Open During a Pandemic? - Reason

Union requires home healthcare providers to submit photo identification just to exercise constitutional right to stop union dues deductions

Chicago, IL (May 22, 2020) An Illinois home healthcare provider has filed a federal class-action civil rights lawsuit against the SEIU Healthcare Illinois and Indiana union (SEIU-HCII), for seizing dues from her compensation without her affirmative consent, and for enforcing arbitrary restrictions on her right to cut off dues deductions. The lawsuit, filed with free legal aid from National Right to Work Legal Defense Foundation staff attorneys, charges the union with breaching home healthcare providers First Amendment rights under the Foundation-won Harris v. Quinn and Janus v. AFSCME Supreme Court decisions.

In Harris, won by Foundation staff attorneys in 2014, the High Court recognized that the First Amendment is violated by schemes to forcibly extract dues from home healthcare providers who assist individuals whose care is subsidized by the government. In the 2018 Janus decision, the Supreme Court struck down mandatory union fees for public sector workers as an infringement of their First Amendment rights, and ruled that the government can only deduct union dues or fees with an individuals affirmative and knowing consent.

The plaintiff, Hydie Nance, provides home-based healthcare under the auspices of Illinois Home Services Plan. This program provides Medicaid funds to people with disabilities so they can hire and pay personal assistants to help them with their day-to-day activities. Nances complaint points out that the Illinois Department of Human Services (DHS) deducts union dues from these subsidies at the behest of SEIU-HCII union officials, and does so without notifying personal assistants that they have a First Amendment right not to financially support SEIU-HCII.

According to the complaint, Nance sent letters to both DHS and SEIU-HCII officials in November 2019 exercising her First Amendment right to end her union membership and cut off dues deductions. Both union and state officials ignored Nances attempt to exercise her rights and continued to deduct full union dues from her subsidies. The lawsuit also alleges that the dues deduction policy the state and SEIU-HCII enforce requires the DHS to not respond to notices it receives from personal assistants to stop dues deductions unless and until SEIU-HCII instructs DHS to cease the deductions.

Nance renewed her objection to union membership and dues deductions in March, the lawsuit says. While DHS again did not respond to the letter, SEIU-HCII officials sent an email acknowledging receipt of her request but claiming they unfortunately cannot process it without your valid photo id, instructing her to submit a picture of a photo ID in response to the message. SEIU-HCII bosses and DHS officials do not notify personal assistants that they must submit a photo identification unless union bosses reject a request to cut off dues, the lawsuit notes.

Nances complaint contends that this process impedes and burdens personal assistants First Amendment right to stop subsidizing SEIU-HCII and its speech and additionally impinges on personal assistants right to privacy and exposes them to the threat of identity theft. The lawsuit asks that the District Court declare unconstitutional SEIU-HCIIs continuing dues seizures after receiving written objections and that the court forbid enforcement of the policy. The complaint also requests that the union return to home healthcare providers all money it has seized illegally under the policy.

One of the attorneys representing Nance is William Messenger, a veteran National Right to Work Foundation staff attorney who argued and won the Janus and Harris cases at the Supreme Court. The lead plaintiff in the latter case, Pamela Harris, is also an Illinois home healthcare provider who filed suit with free legal aid from the Foundation after the SEIU sought to force her to pay union fees just for receiving state subsidies to care for her son in her own home.

Individuals cannot be forced to produce a photo ID just to exercise their legal rights, nor does the state of Illinois need the permission of SEIU bosses before respecting the First Amendment rights of healthcare workers, commented National Right to Work Foundation President Mark Mix. Years after the Supreme Court in Harris and later in Janus explicitly recognized the First Amendment right that home healthcare providers have to refuse to subsidize a union, SEIU union bosses and their allies in Illinois still are more interested in filling union coffers with forced dues than respecting the constitutional rights of those they claim to represent.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in more than 250 cases nationwide per year.

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National Right to Work Foundation Illinois Home Healthcare Provider Hits SEIU Union with Lawsuit for Seizing Dues in Violation of First Amendment...