The law, and parents' online shaming of children as punishment for lying

|The Volokh Conspiracy |

From last week's Louisiana Court of Appeal decision in Tinsley v. Tinsley (some paragraph breaks added); note that the divorced parents had joint custody of their daughter at the time, and the daughter was about 13 years old:

[O]n appeal, Nicole Tinsley contends that the trial court erred in failing to enjoin Jason Tinsley, and his wife, Michelle Tinsley, from posting embarrassing photos or comments about the minor child on social media.

Nicole Tinsley sought this injunction based on an incident wherein Jason Tinsley, as a means of punishment, forced the minor child to post a picture of herself on her Instagram account holding a sign that said "I WILL BE A LEADER, NOT A LIAR!!" In addition, Jason Tinsley and his wife posted the same photo on their Instagram and Facebook pages, with Jason Tinsley making this photo his profile picture on his Facebook page. Nicole Tinsley contended that this form of discipline was inappropriate, humiliating, and demeaning, and therefore, she claimed that Jason Tinsley and his wife should be prohibited from posting such pictures on social media accounts.

The trial court denied Nicole Tinsley's request for the injunction because it interpreted the request as an attempt to dictate how Jason Tinsley would parent the minor child and did not find the social media activity improper such that Nicole Tinsley should be permitted to control the rearing of the minor while the child was in Jason Tinsley's physical custody.

Louisiana Code of Civil Procedure article 3601 provides that "[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant…." The issuance of a permanent injunction takes place only after a trial on the merits in which the burden of proof must be founded on a preponderance of the evidence; hence, the manifest error standard is the appropriate standard of review for the issuance of a permanent injunction.

At trial, Jason Tinsley did not dispute that he used Instagram to publicly punish the child for telling him a lie. According to Jason Tinsley, the child had a friend over to the house and the child and her friend asked if they could ride their bikes to a park, which was approximately one-third of a mile from his house. Jason Tinsley allowed them to go to the park, but told the child and her friend that while they were there, they were not to meet up with anyone else. Jason Tinsley testified that the child and her friend then went to the park and that they spent most of the day there. When the child and her friend got back to the house, he asked them if they saw or met up with anyone while at the park and they responded "no."

The next day, he saw a picture on Instagram that either the minor child or her friend had posted. The picture was of the child and her friend at the park; however, there was also a boy in the picture. Jason Tinsley claims that when he showed them the picture, they started "backtracking." He took the friend home and had a conversation with the child about the incident.

He then made the child write lines, he took the picture of the child with the sign, and made the child post it on her Instagram account and he posted it on his Facebook and Instagram accounts as well. He stated that he did this so that "the family" and "her friends" could see the picture and know what she had done. Jason Tinsley admitted that the child did not want to post the picture on her Instagram account and that he did not allow her to remove the picture from her account until the next day after school and that he removed it from his account several days later.

Jason Tinsley stated that he made the child post the picture because when she went to school, she had to "own" what she did—that she made a choice to lie. Jason Tinsley admitted that he thought the child was probably embarrassed by the photo, but he did not think the child was humiliated. He testified that he believed the punishment was appropriate, and that he would do it again if need be. The minor child told the trial court that she was embarrassed and humiliated by the incident.

Based on our review of the record, we cannot say that the trial court's refusal to issue an injunction against Jason Tinsley and his wife with respect to social media was manifestly erroneous. The record reasonably supports the trial court's apparent determination that there was no irreparable injury, loss, or damage that could result to Nicole Tinsley or the minor child. However, we disagree with the trial court's characterization of Nicole Tinsley's request for an injunction as an attempt to control Jason Tinsley's parenting and with its conclusion that Jason Tinsley's use of social media was not improper.

Under the circumstances of this case, we find Jason Tinsley's use of social media—particularly his forced takeover of and publishing of content on a minor child's social media account—was clearly improper and inappropriate. Jason Tinsley staged an intentionally embarrassing picture of the minor child, he then posted the embarrassing picture of the minor child on his social media accounts, and he forced the minor child to post (or publish) the embarrassing picture of herself on her own social media account, all of which was for the sole purpose of punishing the child by notifying the child's family and friends (and Jason Tinsley's family and friends) of the child's transgression—an apparent lie about a boy being at a public park while the child was at the same park with a friend.

It is hard to imagine a more improper or inappropriate use of social media by a parent than to use it punitively to publicly humiliate a minor child by requiring a child to publish a photograph of herself wearing the modem day equivalent of a scarlet letter to thereby notify the public of her wrong. Accordingly, we cannot say that Nicole Tinsley's request for an injunction was an attempt to control Jason Tinsley's parenting, but rather, was an attempt to protect the minor child from further improper or inappropriate punishment and public humiliation.

However, this court, like the trial court, is reluctant to interfere with a fit parent's constitutional right to parent and make decisions for their child as they see fit. Therefore, we cannot say that the trial court's ultimate conclusion that there was no irreparable injury, loss, or damage to occur to the child or Nicole Tinsley was clearly wrong. Therefore, the trial court's decision to deny Nicole Tinsley's request for an injunction is affirmed.

An interesting fact pattern; I'd love to hear what our readers think about it. (One possible thought, of course, might be that it's hard to evaluate without knowing more about the lie—for instance, whether it fit into some pattern of serious lying or other trouble.) Note that these issues generally arise in custody disputes, rather than in intact families; practically, the threshold for courts even learning about situations within an intact family is generally higher than in custody cases.

UPDATE (Jan. 23, 1:22 pm Eastern): A nice discussion in the comments—check it out.