Gag order lifted in custody case

Gag order lifted in custody case

01/29/96

MASSACHUSETTS–The Supreme Judicial Court, the state’s highest court, ruled in mid-January that a man who was found to be an unfit parent and whose children had been taken away may comment on his case while appealing the decision.

The high court lifted a gag order imposed in late February 1995 by a district court judge who was hearing an appeal of the action taken by the Department of Social Services. The gag order, entered in the course of a care and protection proceeding, stated in part that the father of the children was not to “discuss any aspect of the ongoing proceedings with any member of the media … if it is reasonable to believe that the information communicated will lead to the identity of the subject children.”

Subsequently, a single justice of the high court held a hearing on the father’s challenge to the order, but denied relief without releasing an opinion.

The father claimed the gag order was issued without factual findings, and was overbroad, vague, and an improper prior restraint on his constitutional rights of free speech. Although he agreed to refrain from using photographs of the children, or their true names, the father insisted that the order unconstitutionally restricted his right to criticize the government and the way it handled his child custody case.

The state high court found that the lower court must find a compelling state interest that outweighs the litigant’s interest in free speech in order to impose a gag order. The court added that no such compelling interest had been shown, noting that there had not even been a finding of fact by the trial court. (Care and Protection of Edith & others; Media Counsel: Eric S. Maxwell)