Daily Archives: December 31, 2014

Protecting the First Amendment, by watching The Interview
It #39;s our DUTY.

By: Ciscovaras Pictures

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Protecting the First Amendment, by watching The Interview - Video

A New Jersey federal court allows the lawsuit brought by Paul Nichols, a Bergen Dispatch reporter who wants to interview one of the litigants to go forward, and seems sympathetic to Nicholss First Amendment argument, though the case is still at a preliminary stage and no declaratory judgment has been issued. Here are some excerpts from that opinion, Nichols v. Sivilli (D.N.J. Dec. 19, 2014):

Plaintiff Paul Nichols is a reporter for the Bergen County Dispatch who brings a First Amendment challenge to a gag order issued by Judge Nancy Sivilli in Myronova v. Malhan, a divorce and custody suit pending in the family division of the Essex County Superior Court. Nichols wishes to interview one of the parties in Myronova v. Malhan, but is unable to because the Gag Order restrains all parties to the litigation from discussing any aspect of the divorce proceedings.

In order to understand Nichols First Amendment challenge, the Court first must provide a brief overview of the divorce proceedings that are the subject of the Gag Order. In 2011, a New Jersey court granted full child custody to Alina Myronova and stripped all custody rights from her husband, Surrender Malhan, after Myronova alleged that Malhan was an unfit parent.

According to the [Complaint], the state court stripped Malhan of his custody rights on a mere two hours notice without affording him an opportunity to refute Myronovas allegations. For example, the court prohibited Malhan from cross examining Myronova or presenting physical evidence such as bank records or video recordings that would further demonstrate his parental fitness. The [Complaint] alleges that after the 2011 proceeding, Myronova retained sole custody of the children for sixteen months until she agreed to joint custody in June 2012; during that time, Malhan was never granted a plenary hearing.

Malhan, along with five other parents, subsequently filed a class action lawsuit in this District that is currently pending before the Honorable Freda Wolfson: Edelglass, et al., v. New Jersey, et al.. The class action suit alleges that the New Jersey family court system fails to provide adequate due process rights to parents in child custody proceedings. In February 2014, a New Jersey affiliate of a major news broadcasting company interviewed Malhan and two other Edelglass plaintiffs regarding their experiences in family court and their allegations that the family court deprived them of their constitutional rights. In response, Myronova initiated proceedings against Malhan, which resulted in Judge Sivilli entering the Gag Order. The Gag Order reads, in pertinent part:

All parties are hereby enjoined and restrained without prejudice from speaking with, appearing for an interview, or otherwise discussing, the parties marriage, their pending divorce, the within litigation, or the parties children or making any derogatory or negative statements about the other parties to any reporters, journalists, newscasters, or other agents/employees of newspapers or other media outlets on the grounds that it is not in the best interest of the children to have the parties divorce litigation discussed in a public forum or to have public disparaging statements made about any party by the other party.

In addition to restricting their ability to discuss their divorce or related litigation with other individuals, the Gag Order also prohibits the parties from conveying such information on social media. The Gag Order also instructs Malhan to remove all divorce-related information from his blog.

In May 2014, Malhan filed for a temporary restraining order in Edelglass seeking to enjoin enforcement of the Gag Order. In a May 8, 2014 Order, Judge Wolfson expressed her view that the Gag Order raises serious constitutional concerns and that Judge Sivilli failed to meaningfully weigh Plaintiffs First Amendment rights. She nonetheless denied Malhans motion because the relief he sought was barred by the Rooker-Feldman doctrine [which limits federal intervention in state proceedings -EV]. Malhan suffered another defeat when the Appellate Division of the Superior Court of New Jersey denied his application for an interlocutory appeal of the Gag Order.

After Malhan failed to enjoin enforcement of the Gag Order, Nichols filed the instant action in this Court.2 Nichols wishes to interview Malhan about his experiences in family court, which according to Nichols, are a matter of public interest. Nichols contends that that he is unable to interview Malhan because the Gag Order restricts Malhan from saying anything that relates to his divorce proceedings.

The [Complaint] alleges that Judge Sivilli entered the Gag Order without conducting any meaningful weighing of the First Amendment interests at stake. According to Nichols, Judge Sivilli did not hold a plenary hearing and made no specific findings as to why a gag order was required in this particular case; instead, she issued the Gag Order based on a generalized finding that publicity in family court is not in the best interests of children. Nichols seeks a declaratory judgment that the Gag Order is unconstitutional .

See more here:
Volokh Conspiracy: First Amendment challenge to broad gag order on family court litigants

BOSTON Bostons mayor and police commissioner urged activists Tuesday to hold off on a planned die-in protesting police violence during the citys annual New Years Eve festivities.

Mayor Martin Walsh and Police Commissioner William Evans said the city will honor the protesters First Amendment right to demonstrate on Dec. 31. But they suggested the family-friendly First Night event is not the proper venue to address recent police killings of unarmed black men and boys in the U.S.

This isnt the event to do this, Evans said. If you walk down there, its all 2-, 3- and 4-year-olds. I dont think they have to see [that] behavior. They dont understand what is going on. They are still very innocent.

Walsh agreed: At some point, we have to have a dialogue about where we go from here. Protesting is great to get your point across. But the conversation has to happen around what are the answers people are looking for so that we can explain what we have done as a police department and as a city. Weve done some hard work around race relations, in particular.

Evans suggested many of the protesters are from outside the city trying to capitalize on recent events and do not reflect the relations between law enforcement and the community in Boston. The majority of the community is behind us, he said.

If activists decide to demonstrate as planned at Copley Square, Walsh and Evans said they should be respectful of police and First Night revelers.

Now in its 39th year, First Night draws tens of thousands with a mix of ice sculptures, music, fireworks and other family-friendly activities. Its emphasis on wholesome, non-alcohol-fueled fun has inspired hundreds of similar celebrations around the world.

The group First Night Against Police Violence has said it expects at least 100 people to participate in its New Years Eve die-in, in which activists lie down in the street pretending to be dead.

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Boston officials urge protesters to show restraint during First Night event