A ruling in Massachusetts finds that involuntary nondisparagement orders, commonly used to keep spouses from discussing their cases on social media, are unconstitutional.
The acrimonious split of Masha and Ronnie Shak ended up where many divorces do these days – on Facebook.
As the proceedings unfolded, Mr. Shak offered a running commentary on social media, shared with the couple’s rabbi, assistant rabbi and members of their synagogue, court documents show.
He created a GoFundMe page entitled “Help me KEEP MY SON.” He called his ex-wife an “evil liar.” He illustrated the posts with a video of their one-year-old son, and told their friends to unfriend her.
That was until a probate court judge banned Mr. Shak from posting on social media about his divorce, a common practice known as a nondisparagement order.
A ruling by the Massachusetts Supreme Judicial Court, stemming from the Shaks’ divorce, found such bans to be unconstitutional, a decision that could have broad implications in the state.
As important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of restricting speech, per the court Justice.
For Massachusetts purposes, this is a landmark ruling, because litigants routinely ask for disparagment orders and they are just handed out.
Said orders, used for decades to control disparaging speech, have been expanded in recent years to focus on social media.
The case underscored the role social media can play in modern divorce, as dueling parties try to win support from their circle of acquaintances.
Shortly after filing for divorce and seeking to remove Mr. Shak from their shared home, Ms. Shak filed a motion to prohibit him from posting disparaging remarks about her on social media. Two family court judges complied, with the second, George F. Phelan, issuing an order preventing both Mr. and Ms. Shak from posting “any disparagement of the other party” on social media until their son reached the age of 14.
Judge Phelan’s ruling prevented both spouses from using four specific expletives, as well as “other pejoratives involving any gender,” noting that “the Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.”
It also banned the parents from posting photographs of their son in poses the judge considered inappropriate.
“The court finds that the father’s posing, taking and posting of the photo of the parties’ child (then less than one year old) with a cigarette in his mouth was in poor taste, even if intended as a joke, and causes the Court to question the father’s maturity,” the judge wrote.
But Judge Phelan also put the order on hold, to be reviewed on constitutional grounds by the Supreme Judicial Court. And the court found it unconstitutional.
An order preventing someone from carrying out a certain kind of speech, known as “prior restraint,” is legal in the United States when the threat of damage caused by that speech is compelling. But though the state does have an interest in protecting children from “being exposed to disparagement between their parents,” it is not grave enough to justify restricting freedom of speech, the ruling said.
The ruling noted that one spouse, if offended by the other’s speech, has the option of suing for defamation or seeking a harassment prevention order. It also noted that the judges’ ruling does not apply to voluntary nondisparagement agreements.
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