The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.