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Censorship By Abuse of Restraining Order Process – First Amendment Victory

Manchester-by-the-Sea, MA – In this case, a citizen got in a debate with another citizen over their competing views on pride month.  Ms. Hope Watt-Bucci, a real estate agent in Manchester, MA disagreed with Kim Kahan’s political views. Rather than let their ideas compete in the marketplace of ideas, as our Constitution mandates, Ms. Watt-Bucci preferred to act the part of the bully and censor.  She harassed Ms. Kahan directly, sought to enlist others to harass Ms. Kahan, incited others to steal Ms. Kahan’s property, and even incited others to throw feces at Ms. Kahan’s home. This was all because Ms. Hope Watt-Bucci disagreed, politically, with Ms. Kahan. Since none of that succeeded in suppressing Ms. Kahan from expressing her views (peacefully and lawfully), Ms. Hope Watt-Bucci sought an injunction from the Court for no purpose other than to silence Ms. Kahan.

Randazza Legal Group opposed these efforts with this brief.

The gist of the argument was that Ms. Hope Watt-Bucci tried to get the court to order that Ms. Kahan could not put signs in her yard that expressed her political beliefs.  This was an unlawful prior restraint.

“Temporary restraining orders and permanent injunctions – i.e., court orders that actually forbid speech activities – are classic examples of prior restraints.” Alexander v. United States, 509 U.S. 544, 550 (1993). “[P]rior restraints ‘require an unusually heavy justification under the First Amendment.’” Commonwealth v. Barnes, 461 Mass. 644, 652, 963 N.E.2d 1156, 1164-65 (2012) quoting New York Times Co. v. United States, 403 U.S. 713, 733, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) (Pentagon Papers) (White, J., concurring). “A prior restraint … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1974). As the First Circuit observed, “[t]he Supreme Court has declared: ‘Any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.’” In re Providence Journal Co., 820 F.2d 1342, 1348 (1st Cir. 1986) quoting Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). “[A]ny order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available.” George W. Prescott Publ. Co. v. Stoughton Div. of the Dist. Court Dep’t of the Trial Court, 428 Mass. 309, 311 (1998).

While the Court was visibly upset at Ms. Kahan’s views, the Court did the right thing and ruled in Kahan’s favor.


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