Free Speech

Court Strikes Down Injunction Banning Divorcing Parents from Disparaging Each Other

An important decision from the Massachusetts high court.

|The Volokh Conspiracy |

Shak v. Shak, decided yesterday by the Massachusetts Supreme Judicial Court, involved a family court order addressed to two divorcing parents (the child was one year old at the time of the divorce):

1) Until the parties have no common children under the age of [fourteen] years old, neither party shall post on any social media or other Internet medium any disparagement of the other party when such disparagement consists of comments about the party's morality, parenting of or ability to parent any minor children. Such disparagement specifically includes but is not limited to the following expressions: 'cunt', 'bitch', 'whore', 'motherfucker', and other pejoratives involving any gender. The Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.

2) While the parties have any children in common between the ages of three and fourteen years old, neither party shall communicate, by verbal speech, written speech, or gestures any disparagement to the other party if said children are within [one hundred] feet of the communicating party or within any other farther distance where the children may be in a position to hear, read or see the disparagement.

The court held this violated the First Amendment:

[T]he judge properly noted that "the State has a compelling interest in protecting children from being exposed to disparagement between their parents." However, 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 justifying a prior restraint.

Assuming for the sake of discussion that the Commonwealth's interest in protecting a child from such harm is sufficiently weighty to justify a prior restraint in some extreme circumstances, those circumstances do not exist here. No showing was made linking communications by either parent to any grave, imminent harm to the child. The mother presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt.

As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

Significantly, there has been no showing of anything in this particular child's physical, mental, or emotional state that would make him especially vulnerable to experiencing the type of direct and substantial harm that might require a prior restraint if at any point he were exposed to one parent's disparaging words toward the other. Cf. Felton v. Felton (Mass. 1981), and cases cited (reversing and remanding for further consideration probate judge's order restricting father's visitation unless he refrained from instructing children in his religion—"harm to the child … should not be simply assumed or surmised; it must be demonstrated in detail").

Because there has been no showing that any harm from the disparaging speech is either grave or certain, our analysis regarding the permissibility of the nondisparagement order issued in this case ends here. We note, however, that there are measures short of prior restraint available to litigants and judges in circumstances in which disparaging speech is a concern. For example, our ruling does not impact nondisparagement agreements that parties enter into voluntarily. Depending 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 G. L. c. 258E, or filing an action seeking damages for intentional infliction of emotional distress or defamation.

And certainly 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. Of course, the best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another.

We recognize that the motion judge put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself. However, because there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.

I agree that the injunction here was unconstitutional, and I think the court's decision is a step in the right direction. But it seems to me that the right analysis should be somewhat different (as I discuss at length in my Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006)).

[1.] I think that restrictions on non-ideological speech ("your mother is a whore" or "your father's new wife is a whore") said to the child, justified by the interest in protecting the child's relationship with the other parent should generally be constitutional. They seem unlikely to materially interfere with public discussion, and likely to protect both the children's best interests and the other parent's rights; and if framed as injunctions, they can be crafted in a way that is clear enough to comply with the void-for-vagueness doctrine (though of course it will often be hard to accurately adjudicate whether they have been violated). The restrictions do burden parents' desire to express themselves, and may deny information to the children; but, as for reasons specific to parent-to-child speech that I discuss more in the article, these concerns shouldn't play as much of a role here as they do with speech to adults.

[2.] But rules that threaten to strip a parent of child custody because of the parent's speech are speech restrictions, as much as are rules that threaten to throw a parent in jail because of the parent's speech. Civil liability based on the content of one's speech presumptively violates the First Amendment, unless the speech falls within a First Amendment exception. So does a tax based on the content of one's speech. The same must apply to the far greater burden of losing part of one's parental rights based on the content of one's speech.

[3.] I appreciate the court's desire to limit injunctions to situations which involve clear and pressing threat of harm. Indeed, in this case it may well be that, by the time the child grows up enough to search social media, the parties might be less angry at each other and might have indeed by then deleted the insulting posts (or the posts would be otherwise not easily visible).

But I think that, even if the child were older and able to see the posts—and had been upset by the posts—I don't think that would justify threatening parents with jail for publicly disparaging the other parent's morality and parenting. It seems to me that people's First Amendment rights to discuss their lives to their Facebook friends and others, including to explain why they got divorced, why they are upset, and what problems they are facing, can't be trumped even by the desire to avoid psychological distress to their children.

I agree that publicly and harshly (and often even mildly) criticizing one's ex is usually best avoided, especially when there are children, for a wide variety of reasons. But I think the right to say such things is nonetheless part of our freedoms of speech.

In any case, though, this is an important and likely helpful decision.

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  1. “The mother presented no evidence…”
    Why am I not surprised that it was the Father’s rights being violated?

    “But I think that, even if the child were older and able to see the posts…”

    As opposed to what? Pornographic movies far more graphic than the ones shown in seedy X-rated theaters 40 years ago? Theaters which actually checked IDs and didn’t let in anyone under age 18, I should add. Worse, there is no shortage of pedophiles seeking to contact children via the internet, to the point where some advocate not even putting pictures of children on open web pages.

    Why isn’t it the duty of the custodial parent, i.e. the mother, to protect the child from the internet? Why isn’t she monitoring what her child is doing on the internet? Why doesn’t she simply purchase filtering software for the child’s computer(s)? Filtering software would block anything containing “‘cunt’, ‘bitch’, ‘whore’, and ‘motherfucker’ — it blocks out both chicken recipes and discussions of breast cancer because both contain the letter combination of “breast.”

    1. It’s what I thought — this was a 209A proceeding, and not the divorce itself.

      “The mother then filed an emergency motion to remove the father from the marital home, citing his aggressive physical behavior(including roughly grabbing their child and throwing items at their neighbors), temper, threats, and substance abuse. A Probate and Family Court judge ordered the father to vacate the marital home and issued temporary orders granting the mother sole custody of the child, and a date for a hearing was set. Before the 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….”

      That’s where the order came from, and this was the mother’s attempt to get the father tossed into jail for writing about her on the internet. That’s how “violence against women” is interpreted in Massachusetts — a woman has the right to never be reminded that her ex-boyfriend/ex-husband even existed.

      This wasn’t about child custody, it purportedly was about domestic violence, although a false allegation of abuse is a somewhat routine occurrence in divorce cases. It’s why smart men in Massachusetts don’t get married in the first place….

    2. re: “there is no shortage of pedophiles seeking to contact children via the internet”

      Actually, there is a remarkable shortage compared to the numbers claimed by law enforcement. All the research shows that the vast majority of pedophiles are people the child already knows well – usually a family member. Despite what Hollywood would have you believe, internet-based child predators are about as rare as confirmed voter fraud.

      However, I would agree that there is no shortage of people advocating for all sorts of irrational fearmongering and internet-based pedophiles are one of the more common tropes.

      1. Ross,
        Thoughtful and fact-based comment. What is it doing on the internet? 🙂

        1. LOL

      2. Anthony Weiner, Jeffery Epstein?

        1. Neither were pedophiles. Pedophilia is sexual attraction to prepubescent children. For girls, that typically means 10 or 11. For boys, 11 or 12. (Though for both, a developmental delay could extend it to 13 or so.) Weiner is reported to have had one minor victim and Epstein apparently had multiple but there are no reports that either had any approaching the threshold for pedophilia.

          In other words, posting your kids’ pictures on the internet did not make any difference to those two one way or the other. But even if you want to widen the definitions or find other examples, I did say non-family pedophiles were rare, not that they were non-existent.

  2. “the State has a compelling interest in protecting children from being exposed to disparagement between their parents.”

    Says who? That is utter BS.

    “The State” is NOT our nanny, except in the minds of the Left.

    1. It’s the logical extension of the slippery slope we’ve gone down with the Violence Against Women Act.

      First, you need to understand that the left considers speech to be a form of physical violence — that’s what’s behind all of the fascist speech restrictions on college campi. Second, you need to understand that all men are violent thugs who exist only to beat on helpless women and children. Once you understand these two things, all the rest of this makes sense.

      While it’s 20 years old now, Cathy Young’s _Ceasefire_ https://www.amazon.com/exec/obidos/ASIN/0684834421/reasonmagazinea-20/ is worth reading to understand the latter, with the former just being the logical progression from there.

      What’s unique here is that both parties were enjoined — usually it is only the man, with the woman free to do whatever she damn well pleases. Welcome to the Brave New People’s Republic of Massachusetts…

    2. Ultimately, the State is the nanny of children. Concluding otherwise implies that parents should be able to abuse or abandon their children with no repercussions. Of course we can debate the extent to which the State should be involved in child-rearing. But stubbornly insisting a policy of complete non-interference in child rearing surely does not place enough on the child’s rights and interests.

  3. I don’t see how the First Amendment can permit this type of speech restriction yet prohibit imprisonment as a punishment. If the First Amendment permits it, it permits the full range of penalties. The penalty is not the First Amendment’s business. It might be the business of some other constitutional provision, such as excessive fines or cruel and unusual punishment, but that’s a separate analysis.

    1. ReaderY: I take it that the court’s theory, right or wrong, as to “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,” is that the government is acting in a special role there (as child custody decisionmaker), and is allowed to consider particular kinds of speech in the process. An analogy might be that the government as employer can fire people for speech that’s otherwise constitutionally protected (Connick v. Myers, Garcetti v. Ceballos), or the government as K-12 educator can discipline students for such speech (Bethel School Dist. No. 403 v. Fraser, Morse v. Frederick), or the government as regulator of lawyers can discipline lawyers for such speech (Gentile v. State Bar)

      But I take it that we wouldn’t say that, just because the government can fire you or expel you or disbar you for certain speech, it can also imprison you for such speech, right? Likewise, even if the government can make child custody decisions based on parents’ speech, I don’t think it necessary follows that it can throw parents in jail based on such speech. Or am I misunderstanding your argument?

  4. Also, I think there’s a good argument to be made that in this situation, while the First Amendment may limit the state’s ability to punish parents, it doesn’t limit a judge’s ability to select which parent gets custody based on the child’s best interests.

    I have disagreed with Professor Volokh before on this. In my view, states are permitted to consider theories of the good, including moral theories and theories of appropriate conduct, in determining best interests. This means they get to judge parental behavior based on moral standards.

    1. See: http://masscases.com/cases/sjc/425/425mass153.html
      “Even though a 209A order against him was vacated, a husband could not have record of the order expunged from the domestic abuse registry.”

    2. I think you are right, and I think you are obviously right.

      Let’s say you have two parents. One is extremely dignified, calm, rarely gets into arguments or fights with anyone. The other one spends half of each day making racist and bigoted statements on Twitter, picking fights with people, and lobbing insults.

      The notion that it would violate any First Amendment freedoms for a court to say “the child is better off with parent 1” is just preposterous.

      1. Dilan: I appreciate your argument, and I tried to discuss it in considerable detail in my article. But here, let me just ask you this — let’s say we change your hypo to say,

        Let’s say you have to parents. Both are dignified and calm and don’t lob personal insults. But one [1] spends a lot of time making dignified, calm, [racist / extremely anti-police / pro-revolutionary / pro-jihadist] arguments, and the other [2] spends an equal amount of time making dignified, calm, [pro-equality / pro-law-abiding / pro-peaceful-change] arguments.

        I think many of us would say the child is better of with parent 2 than with parent 1 (assume 50-50 split physical custody is impossible). One test is: If you’re dying and have to leave a child to two equally close relatives, you’d likely prefer parent 2 to parent 1, right (and not just because you agree with parent 2’s views). But does it follow that a court may and should consider the parents’ views in awarding custody?

        1. By the way, I’m not saying our two hypotheticals are identical — I’m just trying to probe the exact scope of your position, since you mentioned both the parent’s viewpoint (“racist” and “bigoted”) and the parent’s style of argument (“picking fights,” “lobbing insults”).

          One more follow-up: You mention “bigoted” as well as “racist” — what if the parent wasn’t racially bigoted, but was a militant atheist who routinely insulted religious people as fools, bigots, hypocrites, untrustworthy, etc.?

          1. One more follow-up: You mention “bigoted” as well as “racist” — what if the parent wasn’t racially bigoted, but was a militant atheist who routinely insulted religious people as fools, bigots, hypocrites, untrustworthy, etc.?

            Yeah, no — BOTH of those people are equally bigots, just against different things

            1. It’s not that they are equally bigots, but it may not matter.

              My answer to Prof. Volokh is that the limiting principle may be viewpoint neutrality. I don’t think merely being an extremist is enough to infringe parental rights. But someone who constantly gets into fights and disputes which may rebound and cause harm against the child, that can be counted. And yes, if a militant atheist constantly picks fights and belittles religious believers, sure, that could be considered.

      2. Did you read the _Vaccaro_ case I cited above? This part?

        “On September 27, 1993, Donalda Vaccaro (Donalda), who was separated from her husband, George, applied in the District Court (with the assistance of the police) for an emergency temporary protective order against him, pursuant to G. L. c. 209A, s. 5. The following day, based on the representations set forth by Donalda in her affidavit, a judge in the District Court entered the requested temporary protective order pursuant to G. L. c. 209A, s. 4, and George was served with the order.

        A hearing on the continuance of the temporary protective order was held on October 15, 1993, at which both parties appeared. As might be expected, conflicting testimony was presented to the judge as to what had occurred during the marriage and when George had entered the marital home. Donalda testified to incidents of verbal and physical abuse during the marriage and her ongoing fear that George would harm her. George denied having committed any acts of abuse and explained that he had entered the marital home to retrieve his tax return and personal belongings. At the conclusion of the hearing, the judge expressed his belief that Donalda was genuinely fearful, but ruled that he could not objectively conclude that she had been placed in fear of “imminent serious physical harm,” justifying the continuation of the protective order. The judge then vacated the order.[emphasis added]

        She goes crying to the cops, who have no choice but to give her the emergency 209A, and the first time he gets to tell his side of the story, the judge tosses it out. Yet he is still listed in the domestic violence registry, and hence she’s considered the better parent.

        What you fail to understand here is for a Massachusetts judge to toss a 209A on initial hearing means that the man is as pure as driven snow.

  5. As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

    That, right there, is a lesson in what can happen when people fail to understand that publishing is different than speech. Whatever disparagement one parent publishes against the other may not only be discovered years later by the child, but also discovered in a context that makes it unmistakable that the disparagement is public knowledge, and perhaps even notorious. The value of protecting, for instance, a 9-year-old from the harm such a discovery might inflict is neither trivial not speculative.

    Whatever satisfaction creating that situation may give to the publisher parent, it creates notable, unavoidable burdens for both the child and the targeted spouse. For what public gain? Why, and to what extent, does the public interest require liberty to publish invective between private parties? The court does not say. It merely intones, “cannot justify a prior restraint,” as if that were a magic formula.

    If there are arguments in favor of making this judge’s interpretation the correct one, they must lie in citing slippery slopes leading to cases based on different facts which might be applicable in different circumstances. You simply cannot make a case that there is any weighty public interest to defend in enabling publication of private invective between non-public figures.

    How can we be sure? Because for most of the life of this nation, prior to the internet, there was little-to-no practical way to accomplish such a publication, and indeed, during all that long interval, such publications were all but unheard of. No one felt that was a problem, or a missing capability creating a pressing need to correct it. That missing feature of public life went unnoticed and uncommented upon.

    So what weighty considerations does this judge suppose are newly salient? Probably, the judge has not spent even a moment considering that this kind of case is new. That happens because too few lawyers have yet noticed that publishing and speech are different, and that the internet revolutionized publishing.

    1. OK. Circa 1970, he hand-writes a letter to his parents in which he uses all the banned words to describe his ex wife. And his mother tucks it into a book that she’s saving for her granddaughter when she’s older. And for her 9th birthday, the girl gets said book, with the old letter still inside it. (Stranger things have happened.)

      Maybe she’s *given* the letter intentionally….

      The number of copies have increased, but if you hand wrote something and sent it to another, you were “publishing” it, weren’t you?

      1. Dr. Ed, no. You were not publishing it.

        1. Dr. Ed, no. You were not publishing it.

          In defamation law, “publishing” means “communicating to a third party.” It does not mean “disseminating it widely.”

    2. Whatever satisfaction creating that situation may give to the publisher parent, it creates notable, unavoidable burdens for both the child and the targeted spouse. For what public gain? Why, and to what extent, does the public interest require liberty to publish invective between private parties? The court does not say. It merely intones, “cannot justify a prior restraint,” as if that were a magic formula.

      As the Supreme Court noted 8-1 in Stevens, the first amendment does not propose a balancing test. It does not say, (as e.g., the fourth amendment does) that no unreasonable abridgment of the freedom of speech and the press is allowed.

      “The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Brief for United States 8; see also id., at 12.

      As a free-floating test for First Amendment coverage, that sentence is startling and dangerous. The First Amendment ’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison , 1 Cranch 137, 178 (1803).”

      How can we be sure? Because for most of the life of this nation, prior to the internet, there was little-to-no practical way to accomplish such a publication, and indeed, during all that long interval, such publications were all but unheard of. No one felt that was a problem, or a missing capability creating a pressing need to correct it. That missing feature of public life went unnoticed and uncommented upon.

      This argument, besides generally being silly and not a legal argument at all, proves too much. One could just as easily say, “As soon as this manner of publication¹ became available, people started availing themselves of it. So therefore they obviously did feel it was a missing capability.”

      ¹You keep using this term, but it is not a 1A term. It’s a copyright term. It’s a defamation term that means something different than you mean by it. It is not a 1A term. The 1A speaks of “freedom of the press,” not “publishing.” You like the latter term because in your view it empowers professionals at the expense of the public.

      1. DN, this is at least as much a historical question as it is a legal one. The founders used the 1A to protect two kinds of communication, and the choice of two separately enumerated protections pointed on purpose to a need to distinguish them. I cannot imagine how you could argue otherwise. I challenge you to try.

        By usage, at the time of the founding, freedom of speech meant private communication, or verbal utterance. Freedom of the press meant what we mean today when we say, “publishing.” At the founding, the printing press was the only means to accomplish publishing, at least in that historical sense, as distinguished from your narrower legal one. (I suggest you might understand me better if you ceased supposing that I even intend my own words to be interpreted in any specialized legal context. Presumably, becoming a lawyer has not made ordinary usage inaccessible to you?)

        After the subsequent invention of other publishing means, referring to “the press,” became inclusive of all means of publication, but that usage left a residue of ambiguity. When you want to make a point today about the founders’ distinction between speech and publishing, you put the case more comprehensibly, and more historically accurately, by referring to “publishing,” instead of to, “the press.” But the terms continue to be used interchangeably.

        Nothing I argue, “empowers professionals at the expense of the public.” My arguments are in favor of maximum public benefit. On the contrary, what you argue comes at public expense. Our disagreement is apparently centered on questioning whether protecting an institutional press affords a public benefit.

        Specifically protected freedom of the press is not merely a benefit to publishers, or to other publishing professionals. It benefits the nation, including every citizen, whether a publisher or not. And of course every person is always free to avail himself of press freedom directly, or through the agency of publishing professionals (as at the time of the founding). Thus, maximizing the scope for publishing freedom, including customary and legal protections for an institutional press, assures maximum national benefit. Persons who lack the means to practice information gathering and information dissemination of the sort customarily practiced by institutional media, nevertheless get benefit when it happens.

        Fettering press freedom, and curtailing that benefit, is what much of the right-wing advocacy on this blog is about. Right wingers do not like so-called “establishment media,” and want to see their power to investigate constrained—and especially to see their power to investigate a right wing government constrained. A currently popular way to make that ambition for constraint look to be its opposite—to frame government constraint as liberality—is to demand that the professional press should get no more legal protection than Joe Keyboard, even as he publishes frauds and defamations, using a pseudonym, via social media.

        Whether or not that kind of advocacy succeeds in knocking down every legal protection customarily and constitutionally afforded an institutional press, it does succeed in degrading the usefulness of truthful publishing. To the extent that the public—on account of a perverse (and a-historical) insistence on bogus equivalence—begins in confusion to lose ability to draw a distinction between accurate information and swill, the usefulness of accurate information declines. Thereafter, its availability declines proportionately. That process is too far along already.

        None of that may matter to you. I take it that you are not a doctrinaire right winger, however much you may be a committed libertarian. But whatever you are, I insist, based on your own arguments, that you have grievously underestimated the nation’s reliance on, and need for, a separately protected institutional press. I suspect that, like most Americans, you also underestimate your own reliance on it.

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