The Massachusetts Supreme Judicial Court (SJC) proceeded with caution when it found itself smack dab in the middle of the precarious intersection of family law and the First Amendment. In its May 7 decision in Shak v. Shak, 484 Mass. 658, 658 (2020), the SJC struck down a non-disparagement order issued by a Probate and Family Court judge as an unconstitutional, impermissible prior restraint on speech. While the court made it clear that the order could not stand, given the specific facts of the case, the court stopped short of declaring all non-disparagement orders facially unconstitutional and seemed to simply treat this as an as-applied challenge.
After Mother filed for divorce from Father, Mother filed an emergency motion to remove the father from the marital home based on the father’s aggressive behavior, temper, threats and substance abuse. A judge issued the order to vacate and entered a temporary order granting the mother sole custody of the parties’ 1-year-old child. Before the next scheduled hearing, the mother filed a motion for temporary orders, which included a request that the judge prohibit the father from posting disparaging remarks about her and the ongoing litigation on social media. After a hearing, the judge issued temporary orders, which included provisions that “[n]either party shall disparage the other — nor permit any third party to do so — especially when within hearing range of the child[,] and “[n]either party shall post any comments, solicitations, references or other information regarding this litigation on social media.” Following entry of the court’s order, Father continued to make such posts on social media platforms and shared them with mutual friends, including members of Mother’s religious community. Mother subsequently filed a complaint for civil contempt. In his answer to Mother’s complaint, Father raised his First Amendment right to free speech as a defense.
A second Probate and Family Court judge presided over the contempt hearing. After hearing, the second judge did not find the Father in contempt of the non-disparagement order, further finding that the temporary order was an unlawful prior restraint on speech. The second judge sought to cure the deficiencies in the language of the previous order by more narrowly tailoring the provisions. The new order prohibited the parties, until their child turned 14, from posting any online disparaging comments about the other’s morality or parenting ability, and included a list of derogatory terms that were forbidden. It also prohibited the parties from saying, writing or gesturing any disparagement to each other if the child was within 100 feet of the communicating party or was otherwise able to hear, read or see the disparagement. The second judge then stayed an order with the revised provisions and reported the constitutional question for review.
Acknowledges Compelling State Interest
In Massachusetts, prior restraints on speech pass constitutional muster only if they serve a compelling state interest to protect against a serious threat of harm, and if they are “no greater than is necessary” to protect said interest. The SJC, in agreement with the Probate and Family Court judge, acknowledged that “the State has a compelling interest in protecting children from being exposed to disparagement between their parents.” However, the court went on to say, “merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint.”
Requires an ‘Extreme Circumstance’ and a Showing of a Grave Imminent Harm
Confirming that the above standard simply is not a one-size-fits-all issue, the court remarked, “[a]ssuming for the sake of discussion that the Commonwealth’s interest in protecting a child from such harm is sufficiently weighted to justify a prior restraint in some extreme circumstances, those circumstances do not exist here.” The court found that there was no such interest in this case because there was no evidence that the minor child had the ability to access, read or understand any potential social media posts at his young age. The court also found that any potential harm from reading the disparaging speech in the future was “too speculative.” There were no showings that this particular child’s physical, mental or emotional state would make him vulnerable to harm at any point if he were exposed to the disparaging words from one parent to another.
Effect on Future Cases
While the non-disparagement order in this case was ultimately found unconstitutional, the court nonetheless imparts a clear message: tread lightly. Parents should be mindful about what they say and/or write about each other. Even though a Probate and Family Court judge cannot prohibit you from posting on Facebook, your decision to post could still come with serious consequences for you and/or your child(ren). “[C]ertainly judges, who are guided by determining the best interests of the child, can make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.”
The court surely understood that its ruling could, and likely would, lead to the challenge of many custody orders. Therefore, it deliberately suggested alternate means of discouraging disparaging speech, such as entering into a non-disparagement agreement voluntarily, and other civil remedies. The court noted, “[d]epending upon the nature and severity of the speech, parents who are the target of disparaging speech may have the option of seeking a harassment prevention order pursuant to M.G.L. ch. 258E, or filing an action seeking damages for intentional infliction of emotional distress or defamation.”
Even with its application narrowed, given the Shak decision, judges are likely to issue these orders sparingly, if at all. Historically, Probate and Family Court judges, acting in loco parentis, have been able to use their authority to calm down tumultuous situations between parents. After Shak, these courts now have one less tool in their toolbox. The mother in Shak argued in her brief, “when a child’s best interests and a parent’s fundamental, constitutionally protected rights are in conflict, the child’s best interests must come first.” Courts in the past have acknowledged that fundamental rights, such as the right to see one’s child or the freedom of religion, may be judicially altered to protect the best interests of the child. The takeaway from Shak is that freedom of speech is a right we have decided to give a higher value to than others, higher in fact than the best interest of a child. Sadly, the Shak decision may now empower litigants to simply refuse to agree to voluntary non-disparagement agreements, knowing that a judge cannot mandate such an agreement.
The decision in Shak does not provide any clear guidance as to what kind of evidence would be required to meet this heightened standard. It is unclear if an opinion from a mental health professional regarding this specific child or perhaps a guardian ad litem report would suffice. A practitioner seeking such an order should provide the judge with a factual basis for why the order will serve the compelling state interest of preventing grave and imminent physical, mental and/or emotional harm to the subject child.
Publicly and harshly criticizing the other parent is best avoided for obvious reasons. However, Shak serves as a shrewd reminder that the right to publicly disparage your co-parent may nonetheless be part of our freedom of speech.
, practitioners still must consider what are the requirements for a non-disparagement clause in a custody order to pass constitutional standards. Perhaps the court would have ruled differently if, for example, the child was 12 years old and had access to social media and a history of mental and emotional health issues. While Shak
gets us a small step closer to understanding the constitutional concerns of court-ordered non-disparagement orders, we can expect that this will not be last time the court will be presented with this issue.