By Michael Phillips, The Republic Dispatch
In a legal system that often feels hostile to transparency—especially in family court—the 2020 Massachusetts case Shak v. Shak may be one of the most important First Amendment decisions you’ve never heard of.
Whether you’re a parent seeking justice, an advocate speaking out, or a litigant worried about retaliation for sharing your story, Shak v. Shak is essential reading. The case draws a clear constitutional line: courts cannot muzzle a parent’s free speech unless there’s clear proof that doing so is the only way to prevent serious harm to a child.
Case Summary: Shak v. Shak (2020)
- Background: Masha and Ronnie Shak were embroiled in a contentious divorce and custody dispute involving their young child. In the early stages, the Massachusetts Probate & Family Court issued a temporary order prohibiting either parent from “disparaging the other”, especially in front of the child or online.
- Alleged Violation: Ronnie Shak posted critical comments about his ex-wife on social media and in private communications. The lower court found his behavior troubling but ultimately did not find him in contempt, and the order itself was challenged on constitutional grounds.
- The Ruling: The Massachusetts Supreme Judicial Court ruled that court-imposed nondisparagement orders amount to an unconstitutional “prior restraint” on speech, violating the First Amendment. “While protecting children is a legitimate state interest,” the Court wrote, “such protection cannot come at the expense of fundamental constitutional rights unless the speech poses a ‘grave and certain’ harm to the child.”
Why This Case Matters for You
If you’ve been told—or fear—that you can’t talk about your custody case, especially online, Shak v. Shak gives you a constitutional anchor. Here’s why it’s so important:
- It affirms your right to speak—even about painful, controversial, or critical matters—unless your words clearly pose a serious, imminent threat to your child’s well-being.
- It rejects vague or overbroad court orders that silence litigants under the guise of protecting children, unless narrowly tailored and supported by compelling evidence.
- It protects public discourse about family court abuse, judicial misconduct, or systemic failures—which many parents feel is their only avenue for accountability when the courts refuse to act.
What It Doesn’t Mean
Shak v. Shak doesn’t give you free rein to defame, harass, or expose confidential information recklessly. You can still be held accountable for false statements, violations of protective orders, or conduct that directly harms your child. It also doesn’t apply if:
- You signed a private settlement with a mutual nondisparagement clause—those are enforceable by contract.
- You speak directly to your child in a way that a judge believes causes emotional harm.
But speaking publicly—on a podcast, in an article, or to a reporter—is generally protected speech, especially when done carefully and truthfully.
How You Can Use It
If you’re a parent, journalist, or advocate facing a threat of legal action for speaking out:
- Cite Shak v. Shak when responding to threats or legal intimidation.
- Request strict scrutiny review if a court tries to impose a gag order.
- Ask the court to show how your specific speech would create grave and imminent harm—without relying on vague generalizations.
If you’re worried about a court weaponizing your speech against you, speak strategically, not silently. Tell your truth, but do it with purpose—and constitutional backing.
Final Word
In a family court system where secrecy too often protects power and punishes parents, Shak v. Shak reminds us that free speech doesn’t end at the courthouse door.
So if you’re being silenced—speak up. Speak smart. And speak lawfully. This case gives you the roadmap.
Citations:
- Shak v. Shak, 484 Mass. 658 (2020)
- Full opinion: https://www.mass.gov/files/documents/2020/06/16/sjc-12886.pdf
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