First Amendment challenge in Massachusetts

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2023The Commonwealth argues that the judge did not err in requiring the defendant to demonstrate that the value of sealing the records of his acquittals at trial clearly outweighs the constitutionally based value of the record remaining open to society where the Pon decision did not extend to § 100C, first par., and where Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509-511 (1st Cir. 1989), found a First Amendment presumption of access in criminal cases ending with findings of not guilty.

2023The Commonwealth argues that the judge did not err in requiring the defendant to demonstrate that the value of sealing the records of his acquittals at trial clearly outweighs the constitutionally based value of the record remaining open to society where the Pon decision did not extend to § 100C, first par., and where Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509-511 (1st Cir. 1989), found a First Amendment presumption of access in criminal cases ending with findings of not guilty.

2025See, e.g., Sholley, 432 Mass. at 727-731 (rejecting First Amendment defense where defendant claimed his disorderly conduct "was part of his political protest against the unfair prosecution of husbands and fathers").

2001First Amendment violation. “[T]he First Amendment [to the United States Constitution] does not protect conduct that threatens another.” Commonwealth v. Sholley, 432 Mass. 721, 726 (2000), quoting Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995).

2023Applying the two-step test set out in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II), and examining the analysis conducted in Pon, it is clear that the court's reasoning in Pon supports the conclusion that there is no First Amendment presumption of access.

2014See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9 (1986) (Press-Enterprise II).

1994“Under current First Amendment analysis, ‘[t]he Government generally has a freer hand in restricting expressive con *421 duct than it has in restricting the written or spoken word.’ ” Id. at 96 , quoting Texas v. Johnson, 491 U.S. 397, 406 (1989).

1990Under current First Amendment analysis, “[t]he Government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Texas v. Johnson, 109 S. Ct. 2533, 2540 (1989).

1994“When 6 “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.’ ” Id., quoting United States v. O’Brien, 391 U.S. 367, 376 (1968).

1990When “‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376 (1968).

2023Therefore, the First Amendment presumption of access does not apply to nonconvictions mentioned in § 100C, first par.14 Although these records are not entitled to a First Amendment presumption of public access, they "are subject to a common-law presumption of public access." Pon, 469 Mass. at 311 .

2023Therefore, the First Amendment presumption of access does not apply to nonconvictions mentioned in § 100C, first par.14 Although these records are not entitled to a First Amendment presumption of public access, they "are subject to a common-law presumption of public access." Pon, 469 Mass. at 311 .

2020As relevant here, "[t]he Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own [ministers]." Hosanna-Tabor, 565 U.S. at 184 .

2012The Court in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 710 (2012) (Hosanna-Tabor), limited its holding regarding the ministerial exception to employment discrimination suits.

2016Dist. 205, Will City, 391 U.S. 563, 568 (1968), and Connick v. Myers, 461 U.S. 138, 142 (1983), and acknowledged that the initial question in cases such as this is whether the content of the public employee’s speech related to “a matter of public concern.” Garcetti, supra at 418 .

2008The threshold question of law — whether Plaintiff could demonstrate facts sufficient to maintain her First Amendment claim pursuant to Garcetti v. Ceballos, 547 U.S. 410 (2006) — was reserved by the court for decision until hearing all of Plaintiffs trial evidence. 1 Ruling on the question of protected speech is appropriate for summary judgment and is commonly made in that context.

1990I write separately only because in my view, the same view I expressed in Commonwealth v. Oakes, 401 Mass. 602, 605 (1988) (O'Connor, J., dissenting), vacated and remanded, 109 S.Ct. 2633, 2639 (1989), the court errs when it declares that "speech" requiring First Amendment analysis occurred in this case.

1990I write separately only because in my view, the same view I expressed in Commonwealth v. Oakes, 401 Mass. 602, 605 (1988) (O’Connor, J., dissenting), vacated and remanded, 109 S. Ct. 2633, 2639 (1989), the court errs when it declares that “speech” requiring First Amendment analysis occurred in this case.

1993Since the defendant only has standing for overbreadth purposes to challenge the statute’s reach with respect to the First Amendment, Broadrick, 413 U.S. at 611-12 , he is presumably arguing a First Amendment violation of individual privacy rights.

1993Since the defendant only has standing for overbreadth purposes to challenge the statute’s reach with respect to the First Amendment, Broadrick, 413 U.S. at 611-12 , he is presumably arguing a First Amendment violation of individual privacy rights.

1991The infringement that an agency shop makes on nonunion employees’ constitutional rights requires that carefully crafted procedures be developed to minimize that infringement and to give an individual “a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.” Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 303 (1986).

1986Of particular relevance is the Court’s admonition that a nonmember employee “must have a fair opportunity to identify the impact of the governmental action on his interests and to assert a meritorious First Amendment claim.” Id. at 303 .

1982But cf. Branzburg v. Hayes, 408 U.S. 665, 693-695 (1972) (indicating skepticism as to chilling effect of compelled revelation of press sources).

1973The majority of the United States Supreme Court in the Branzburg case, 408 U. S. at 685-686 (1972), drew a similar conclusion from their review of the then existing precedents: “In 1958, a news gatherer asserted for the first time that the First Amendment exempted confidential information from public disclosure pursuant to a subpoena issued in a civil suit, Garland v. Torre, 259 F. 2d 545 (CA2), cert, denied 358 U. S. 910 (1958), but the claim was denied, and this argument has been almost uniformly rejected since then, although there are occasional dicta that, in cir *325 cumstances not presen

2025Cf. Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) ("the pertinent question in a [42 U.S.C.] § 1983 retaliation case based on the First Amendment is whether the defendant's actions would deter 'a reasonably hardy individual[]' from exercising his constitutional rights" [emphasis added; citation omitted]). [17] Samuels sought to exercise her free speech rights at the established time and place -- public comment at select board meetings -- and to the appropriate public official, as Gibson, the town manager, was the supervisor to the police and liaison to the board. [18] Gibson, when deposed, a

2025Cf. Barton v. Clancy, 632 F.3d 9, 29 (1st Cir. 2011) ("the pertinent question in a [42 U.S.C.] § 1983 retaliation case based on the First Amendment is whether the defendant's actions would deter 'a reasonably hardy individual[]' from exercising his constitutional rights" [emphasis added; citation omitted]). [17] Samuels sought to exercise her free speech rights at the established time and place -- public comment at select board meetings -- and to the appropriate public official, as Gibson, the town manager, was the supervisor to the police and liaison to the board. [18] Gibson, when deposed, a

2025Although here, 1 The assistant chief had previously supervised the defendant as a probation officer, and his family and the defendant's family knew each other personally. 3 the defendant did not raise a First Amendment objection to the jury instructions given at his trial, we agree with the defendant that the theory "was not sufficiently developed at the time of trial . . . to afford [him] a genuine opportunity to raise his claim," Commonwealth v. Guardado, 491 Mass. 666 , 686, S.C., 493 Mass. 1 (2023), cert. denied, 144 S. Ct. 2683 (2024), quoting Commonwealth v. Rembiszewski, 391 Mass. 123,

2025Fund, Inc., 473 U.S. 788, 800 (1985) ("when a plaintiff seeks to launch a First Amendment challenge addressed to a policy or practice that restricts expressive activity on public property, he must plead facts sufficient to show [1] that the government has burdened a protected form of speech, and [2] that the restriction is unreasonable").

2025Fund, Inc., 473 U.S. 788, 800 (1985) ("when a plaintiff seeks to launch a First Amendment challenge addressed to a policy or practice that restricts expressive activity on public property, he must plead facts sufficient to show [1] that the government has burdened a protected form of speech, and [2] that the restriction is unreasonable").

2023"In interpreting a statute, we presume that when the Legislature enacts a law it is aware of the statutory and common law that governed the matter in which it legislates." Globe Newspaper Co., petitioner, 461 Mass. 113, 117 (2011).

2023"In interpreting a statute, we presume that when the Legislature enacts a law it is aware of the statutory and common law that governed the matter in which it legislates." Globe Newspaper Co., petitioner, 461 Mass. 113, 117 (2011).

2023Pon, 469 Mass. at 308 , quoting Commonwealth v. Montanez, 388 Mass. 603, 604 (1983) ("we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law").

2023Pon, 469 Mass. at 308 , quoting Commonwealth v. Montanez, 388 Mass. 603, 604 (1983) ("we are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law").

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2022"If a statute's deterrent effect on protected expression is not 'both real and substantial' and if the statute is 'readily subject to a narrowing construction,' the doctrine of overbreadth may not be employed." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 580 (2006), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976).

2022"If a statute's deterrent effect on protected expression is not 'both real and substantial' and if the statute is 'readily subject to a narrowing construction,' the doctrine of overbreadth may not be employed." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 580 (2006), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976).

2022See Weil v. McClough, 618 F. Supp. 1294, 1296 (S.D.N.Y. 1985) (claim of First Amendment protection predicated on theory that violator "was not simply expressing his frustration at being impeded by [a massive traffic jam]").

2022"If a statute's deterrent effect on protected expression is not 'both real and substantial' and if the statute is 'readily subject to a narrowing construction,' the doctrine of overbreadth may not be employed." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 580 (2006), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976).

2022"If a statute's deterrent effect on protected expression is not 'both real and substantial' and if the statute is 'readily subject to a narrowing construction,' the doctrine of overbreadth may not be employed." Commonwealth v. Abramms, 66 Mass. App. Ct. 576, 580 (2006), quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 60 (1976).

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2022"The First Amendment doctrine of substantial overbreadth . . . is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions." Commonwealth v. Jones, 471 Mass. 138, 142 (2015), quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989) (opinion of O'Connor, J.). "[A] statute is within constitutional limits, for purposes of challenges, such as here, to vagueness and overbreadth, so long as the statute is sufficiently explicit to give clear notice as

2021Mass. 1992) (Tauro, C.J.), quoting Hicks v. Miranda, 422 U.S. 332, 349 (1975); accord Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 , 436–437 (1982). -5- barred federal court from hearing First Amendment claim that could be raised in state-court judicial review of pending administrative proceeding).

2021“State courts are adequate forums for the vindication of federal rights;” this is “a foundational principle of our federal system.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013).

2021“State courts are adequate forums for the vindication of federal rights;” this is “a foundational principle of our federal system.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013).