Free Speech

Divorcing Spouses Forbidden from "Disparaging" Each Other to Their Employers

A clear First Amendment violation, I think -- but it's the law in Tennessee.

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Under Tennessee law, when a divorce is begun (and until the proceedings are over), a court must issue

[a]n injunction restraining both parties from harassing, threatening, assaulting or abusing the other and from making disparaging remarks about the other to or in the presence of any children of the parties or to either party's employer;

And such speech could therefore be a crime (since violating an injunction constitutes criminal contempt of court). Similar rules apply whenever a child custody petition is filed, even if the parties are unmarried and there's thus no divorce.

Thus, if two coworkers are married, and the wife files for divorce, claiming that her husband had beaten her, she can't mention this to their joint employer, since that would presumably be "disparaging." And the injunction isn't limited to banning false and defamatory remarks; even true statements and expressions of opinion would violate the injunction.

Or say a woman is married to a police officer. She files for divorce, claiming that he had abused her, and then finds evidence that the husband had gotten his coworkers not to investigate the abuse. She can't then write to the police chief or the mayor to complain, since that too would presumably involve "disparaging remarks" said to the husband's employer. Indeed, she might be violating the law simply by filing a complaint with the police about her husband's supposed abuse.

Indeed, I will blog shortly about a case in which such an injunction was issued against a divorcing wife of a police officer, and the court concluded the injunction was violated by the wife's letter complaining to the mayor. The court went even further, ordering the wife to take down her Facebook posts about her allegations against her husband and the police department.

But in this post, I just wanted to flag the broad statutory restriction. If anyone knows of cases in which this statute (or an order issued under the statute) is being challenged, or might be challenged, please let me know.

NEXT: Congratulations to James Phillips, who will begin at Chapman University School of Law in the Fall

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  1. Given the propensity for divorces to turn nasty and that at times truth is a casualty it seems a reasonable rule. Adding determining the truth or falsity of any disparagement would add enormously to the Courts work load. However suspect the constitutionality is.

    I wonder if there is a mechanism within the law to work around this, for example informing the Judge in the case and having them contact the authorities or even issue an order to them?

    1. Forbidding speech without any finding as to truth or falsity is the easy way, and the wrong way. Striving to maintain a false civility at the expense of truth sounds more like pre-crime prevention than justice.

      If either spouse lies about the other, let that be handled as the separate case it is, or let it be reflected in the divorce proceedings.

      If this were the right way to bring peace to a community, why limit it to divorce proceedings? Why not extend it to after the divorce too — I am sure the bitterness does not stop magically once divorced. Then extend it to prior to the divorce too — make it part of the marriage vows. Heck, make it part of the engagement — no point in letting bitterness break up a pending marriage. And then, gosh, let’s extend it to everybody at all times — make sure people only see the good side of each other, never hear a single disparaging word. Think of how polite people will be!

    2. I have mixed feelings about this. My dad practiced law for over 60 years and part of it was divorce cases. These were the cases that convinced me that I didn’t want to be a lawyer. The anger that surfaces is just too much.

      On one hand when the gavel bangs you want it to be over. It should be over, other than acting on the decision. Many people will not be able to defend themselves against a crazy-but-convincing ex badmouthing them.

      On the other hand the abused party is often weaker and it doesn’t seem fair to stifle them like that after possibly years of being oppressed.

      1. Can it be right to suppress speech because it might be “crazy-but-convincing” or otherwise false, and because “determining the truth or falsity” would be too much work for courts? It seems to me that the general rule is the opposite — even allegedly false speech is generally protected unless it is actually found to be false and defamatory at trial, no?

        1. I understand the issue of free speech.

          But given the sufficiently volatile aggressor, by the time you prove the allegations are false, you prove the defendant knew the allegations are false, you convince the court the defendant’s intent (nearly impossible) and then extract a court order the damage will have been done.

          You will have spent upwards of $30K in legal fees. Not only as a plaintiff but maybe as a defendant when the police believe their story sufficiently to arrest you. You might have lost a job or maybe a deserved promotion. And so on. So even if you win the case you have still lost.

          Granted that seems to be an extreme case. But just google up “psychotic ex stories” and you can spend weeks reading them all.

          So all I am suggesting is that the issue of free-speech vs. the rights of someone who just wants to stop their losses isn’t always that clear cut.

          1. All crimes have that problem. Most exes are not psychotic. Even most criminals aren’t psychotic. Why single out exes for pre-crime special dispensation?

            1. There have been too many cases of divorce where false allegations against the spouse were made to create a narrative whereby the accuser becomes the primary custodian for their children. Usually these allegations are made so the accuser receives a TRO against the accused; which is then used in court as “evidence;” especially when there are custody of children issues. This tactic has been used by both men and women for decades.

              It appears that this law places a TRO on both parties which does not restrict them on making their complaint(s) directly to the judge instead of the court of public opinion.

              1. FlameCCT: But isn’t the freedom of speech the right to make your views known, not just to government officials (that’s the Petition Clause) but to the public? Now this doesn’t include the right to make knowingly false allegations — but the law isn’t limited to knowingly false allegations (nor is it limited to allegations related to children).

                Do we generally prevent falsehoods by suppressing a broad category of speech without regard to whether it’s actually true or false?

                And if the worry is that the accuser will wrongly receive a TRO from a judge, how is that worry alleviated by allowing speech to the judge but forbidding speech to the public?

        2. In the interests of expediently resolving the divorce and limiting damage to the children it may well be better for both spouses to keep their mouths shut until the divorce is final. Then they can say whatever they want to. As for reporting criminal activity by one of the parties or where one party is posing a threat to the other that is a different case.

          1. It may be better for people to keep their mouths shut about all sorts of things. The question is whether the government may order them to keep their mouths shut.

  2. The existence of a permanent professional legislative class not only gives rise to problems associated with “when all you have is a hammer,” but also the ones associated with there being absolutely no correlation between the sociopathy required to win and keep a seat, and any competence whatsoever at writing legislation with minimal unintended consequences.

  3. California courts routinely (but not automatically) issue a “no disparaging/derogatory remarks about the other parent in the presence of the minor child(ren)” order in custody cases, and there’s no requirement that there be any evidence that either party has previously done so for such an order to be made. Such an order is enforceable, in theory at least, through the contempt process.
    I’ve been puzzled, for a long time, as to exactly what the boundaries of impermissible “derogatory” speech are: “Your mom’s converted to Wicca, and as a good Christian, I believe pagans are going to Hell”? “Your Mom’s gay?” “I am having some problem paying our expenses, because your father hasn’t paid his support payment in six months”? NO reported appellate cases, as afr as I know.

    1. Good examples, and I think they illustrate how even a “clear” order is actually not clear at all. How can making a factual statement (eg, mom is gay, dad has not paid child support in 6 months, etc) be considered defamatory? What if a child asks about why mommy is living with another woman? What if that child asks mom why they can no longer afford to eat at McDonald’s every Wednesday? Is the ‘other’ parent supposed to lie, to protect the at-issue parent? Should the parent say to his/her child, “Sorry, the court has ordered me not to tell you the truth.”? This seems odd to me. (I totally get the rationale behind a court trying to get both parents to not “unfairly” disparage the other, but man; this seems really unmanageable…and that’s without even considering the First Amendment issue.)

      1. IIUC it appears to be similar, if not exactly, as a TRO for both parties until the divorce or custody hearing is finalized.

        It is sad but there are too many vindictive men and women that look at children as property to be used as a club against the other.

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