Don’t Say That! Are Non-Disparagement Orders Lawful?

by Fern Frolin and Timothy D. Braughler

Heads Up

 

In an opinion at the intersection of family and constitutional law, the Massachusetts Supreme Judicial Court (SJC) recently examined a parental non-disparagement order issued in child custody proceedings. In Shak v. Shak, 484 Mass. 658 (2020), the SJC held that an order prohibiting parents from disparaging one another was an unconstitutional restraint on speech in violation of the First Amendment to the United States Constitution and Article 16 of the Declaration of Rights, as amended by art. 77 of the Amendments.

Masha and Ronnie Shak had one child. When the child was one-year old, Masha filed for divorce and soon sought an emergency motion requiring Ronnie to vacate the marital home. A Probate and Family Court judge granted Masha temporary sole custody of the child and ordered Ronnie to vacate the home. The judge also issued temporary orders restraining both parents from posting information about the litigation on social media or disparaging the other, “especially when within the hearing range of the child.” Id. at 659.

Masha thereafter filed a complaint for civil contempt alleging that Ronnie had published numerous disparaging posts on social media in violation of the order.  Ronnie answered, in part, that the judge lacked authority “to issue [a] prior restraint on speech.” Id.

At the contempt hearing, a second Probate and Family Court judge held that the non-disparagement order as entered constituted an impermissible prior restraint of speech. The judge concluded, however, that a more narrowly drawn non-disparagement order that furthered a compelling State interest would be acceptable. The second judge redrew the non-disparagement order in language that (1) limited the prohibition on social media posts to disparagement “about the other party’s morality” or parenting ability; (2) prohibited any non-media disparagement only where the child was within 100 feet of the disparaging parent or where the child might otherwise see, hear or read the disparagement; and (3) provided for termination of the order on the child’s fourteenth  birthday. Id. at 660.

Rather than immediately implementing the new, narrower order, the judge reported two questions to the Appeals Court. First, are non-disparagement orders issued in the context of divorce litigation an impermissible restraint on free speech? Second, does protection of a minor child’s best interest render non-disparagement orders issued in the context of divorce litigation a compelling public interest and, therefore, a permissible limitation on free speech? The SJC granted an application for direct appellate review but declined to address the specific reported questions and, instead, considered whether the second judge’s non-disparagement order could stand.

“The term ‘prior restraint’ is used ‘to describe any administrative or judicial order forbidding certain communications when issued in advance of the time that such communications are to occur.’” Id., at 661, citing Alexander v. United States, 509 U.S. 544, 550 (1993), quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984). By definition, a non-disparagement injunction prevents speech that has not yet happened is therefore a prior restraint. The SJC stressed that prior restraint on otherwise protected speech is the “most serious and the least tolerable infringement on First Amendment rights.” Id. at 661, quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Therefore, a prior restraint on speech is acceptable only where the harm avoided is “grave”; the probability of the harm absent restriction is “all but certain”; and there exists no less restrictive means to mitigate the harm. Id. at 662. In short, prior restraint on speech requires exceptionally significant justification. Id. at 663, citing Commonwealth v. Barnes, 461 Mass. 644, 652 (2012).

The SJC accepted hypothetically the Commonwealth’s interest in protecting children “from emotional and psychological harm that might follow from exposure to one parent’s … disparaging words about the other,” but declined to hold that the interest is sufficiently “weighty” to justify prior restraints on speech. Id. at 663-64. The SJC held that in Shak, there was no showing that, absent the order, harm to this particular child was “either grave or certain. . .  .” Id. at 664. Noting the child’s young age, inability to read social media, and the absence of evidence of unique vulnerabilities, the SJC held the order unconstitutional due to lack of findings of grave, imminent harm to the child. The SJC continued that concerns about potential harm should the child discover the speech in the future were too speculative to justify a prior restraint. In so concluding, the SJC noted that anti-harassment and tort remedies may be available to a disparaged parent and voluntary non-disparagement agreements entered into by parents remain enforceable. It further reminded lawyers and parents that a parent’s disparaging language may well factor into custody determinations.

Shak instructs family law attorneys seeking non-disparagement orders to offer case-specific evidence of a child’s unique vulnerabilities, perhaps with evidence of past harmful consequences of the child’s exposure to parental conflict. Expert testimony might well bolster such evidence.  However, even if one secures a non-disparagement order, enforcement through contempt proceedings can be difficult. The order must be clear and unequivocal. In re Birchall, 454 Mass. 837, 838-39 (2009). Furthermore, courts may struggle with remedies for parents disparaging one another. But cf. Schechter v. Schechter, 88 Mass. App. Ct. 239, 247-48 (2015) (affirming suspension of parenting time where father’s negative behavior included disparaging mother in child’s presence).

Enforcement difficulties aside, family law attorneys should not misconstrue Shak to mean that non-disparagement orders should be avoided as unconstitutional. Indeed, the SJC especially endorsed voluntary non-disparagement orders, crafted by parties committed to civility, and cooperation. These agreements focus on the children’s best interests and remind parents that children benefit from parental harmony. Voluntary orders repeat what thoughtful parents already know: children experience disparaging language as conflict, and divorce conflict stresses children. The parents’ mutual promises in a notarized, court-approved agreement to refrain from harmful conduct may be far more meaningful to children and parents than a court-imposed speech limiting order ever could be.

 

Fern Frolin is Of Counsel to Mirick O’Connell, where focuses her practice on complex matrimonial cases. She strongly believes that nearly all family law matters can and should be settled and that the best matrimonial lawyers counsel their clients to consider their children’s best interests paramount in their settlement negotiations.

Tim Braughler is a Partner of Mirick O’Connell in the firm’s Boston office. Tim specializes in all aspects of family law including divorce, child custody, child support, alimony, paternity, adoptions, restraining orders, and pre- and post-nuptial agreements.



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