Ex-Wife May Not Distribute Memoir in Which She Accuses Ex-Husband of Abuse, Because That May Harm Child

From Clark v. Clark, decided Mar. 5 by South Carolina Court of Appeals Judge Paula Thomas, joined by Judges Blake Hewitt and Jerry Vinson:

Mother published a book (The Book) depicting the circumstances surrounding the parties' marriage and divorce, as well as other aspects of Mother's life; and it has been published, marketed, and sold by national book retailers. The cover of The Book contains a photograph of Mother, made up of puzzle pieces, with a black eye drawn with makeup. Included in The Book are allegations by Mother claiming physical, mental, emotional, and sexual abuse at the hands of Father. [The book appears to be "Soul Pieces," subtitled "memoirs of self-discovery after domestic violence and divorce." -EV]

In addition to national book retailers, Mother promotes The Book on her personal website. Mother also testified she was an ambassador at a private 501(c)(3) non-profit that offers services to survivors of domestic abuse. Mother promotes her book through the non-profit and local speaking engagements. Mother and Minor Child are pictured on Mother's website, along with promotions for The Book and a book authored by Minor Child published on December 19, 2019. {Minor Child's book is marketed and sold on Mother's website. The website contains a tab labeled "About [Minor Child]" which provides a brief biography and photograph of Minor Child.} The "About" tab on Mother's website reads, in part, "As a mother of a young daughter, Amika wants to change the narrative and cycle for her daughter and give a voice to personal, internal thoughts." …

Mother testified the contents of The Book were truthful and accurate descriptions of the emotional, physical, and mental abuse she suffered at the hands of Father. She admitted to writing Father was "full of bullshit and lies" during the marriage. Mother further admitted that she accused Father of being mentally ill. Mother was asked about a portion of The Book in which she discusses an affidavit she wrote for an expedited hearing. Father's counsel asked Mother to confirm she wrote: "My shield became impossible when her father screamed expletives and belligerent names at me during story time which she witnessed her father follow me from room to room berating me no matter how much I tried to remove myself from the situation. Mother's bond is unwaveable [sic]…. She hears her dad yelling and screaming at me, she comes to what she calls 'mommy's rescue.'"

Mother also testified to a poem she wrote entitled "Little Dick Mother" which was "a poem written out of anger … givin' an analogy to someone being lower than a snake's belly … and it is comparing them to … their inability to satisfy me sexually … it's basically saying … that I'm tired and I'm movin' on." Mother also admitted to writing in The Book that Father is a "narcissistic, irrational, manipulative liar." When asked if she was aware she was prohibited from making disparaging comments about Father, Mother responded, "I haven't made disparaging comments to where [Minor Child] would know about it." Despite the admitted testimony, Mother further testified she had taken precautions so that Minor Child would not have access to The Book.

{Both parties cited physical abuse during the divorce proceedings. However, in the Final Divorce Order, after considering witness testimony and the existence of 9-1-1 call logs, the family court noted "[Mother] called the police to the residence numerous times during the marriage; however, [Father] was never charged with a crime. [Father] called the police to the residence in March of 2014 which resulted in [Mother] being charged with criminal domestic violence. That charge remains pending." …}

The family court concluded that publication of the book violated the court's past orders, "including provisions against making derogatory comments about the other in any manner whereby Minor Child might learn of same, failing to keep Minor Child in a moral and safe environment, conduct detrimental to Minor Child, and allowing Minor Child access to age inappropriate material, and held Mother in criminal and civil contempt."

The family court ordered Mother to cease and desist from selling and disseminating The Book in any manner whatsoever and placed other restrictions on Mother's use and handling of the material associated with The Book. The family court sanctioned Mother by sentencing her to jail, suspended upon her removal of The Book from the open market among other requirements, ordering her to pay fines totaling $3,500.00, and ordering her to pay attorney's fees and costs of $10,000.00 within ninety days of the order….

The family court later amended the parties' prior disparagement provision to read:

All parties are restrained against the use of profanity or making any derogatory comments about or toward the other party or allowing anyone to do so in front of the child/children, or in any manner whereby the child might learn of the same, except where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same….

Mother argues the family court violated her First Amendment right to free speech by finding her in contempt. We disagree….

[T]he government may regulate the content of constitutionally protected speech in order to promote a compelling interest as long as it chooses the least restrictive means to further that interest. In this case, we agree with the family court that the best interests of Minor Child are a sufficient compelling interest to warrant restricting Mother's speech; thus, there was no violation of Mother's rights under the First Amendment….

We believe it would be inconsistent for the family court to find that parents have a First Amendment right to make disparaging comments about the other parent to the child, or in a manner in which the child might learn of same, when it would not be in the child's best interest.

Mother raised, for the first time at trial, that the disparagement provision is a content and viewpoint based prior restraint on her free speech that is not narrowly tailored to meet a compelling state interest and is therefore unconstitutional. Specifically, she claims the disparagement provision "prohibits 'making any derogatory comments about or toward the other party' but does not prohibit the same character of comments about or toward any other person, including the child, or praise concerning any party or the child." Because the disparagement provision only applies to speech deemed to be derogatory, Mother argues it is a content-based restriction that may only withstand challenge to its constitutionality based upon a showing that the restriction is "necessitated" by a compelling government interest that is narrowly tailored to serve that interest….

The family court … allowed for specific instances of disparaging comments to be made by Mother so long as she had a reasonable expectation of privacy at the time. According to the rewritten disparagement provision, Mother has available forums for disparaging Father.

While South Carolina courts have not ruled on the issue of the constitutionality of prior restrictions on parental speech, courts in some jurisdictions have held that the state's interest in protecting the best interests of a child is a compelling interest that can justify limiting a parent's constitutional right to free speech. See, e.g., Borra v. Borra (N.J. Super. 2000) (finding an injunction against a father's efforts to contest a mother's application for country club membership was proper in light of the state's parens patriae interest in the welfare of the children, which was threatened by the parents' conflict over the membership; although the father had a First Amendment right to speak his mind freely, "New Jersey courts have consistently recognized that the 'best interests' of the children can be made paramount to other fundamental rights").

The Massachusetts Supreme Judicial Court recently addressed the issue of parental speech and prior restraints in Shak v. Shak (Mass. 2020). In that case, there was an order prohibiting both parents from posting disparaging remarks about each other and the ongoing litigation on social media. The Massachusetts court ruled that an order preventing a parent from posting about his child on social media violated the father's constitutional right to freedom of speech. The court in Shak held the State had a compelling interest in protecting children from exposure to disparaging remarks from the parents but that more was required to justify such a significant burden on free speech. We find Shak is distinguishable.

First, the child in Shak was a toddler, while Minor Child is a sophisticated eleven-year-old who has written and published a book of her own. The court in Shak noted, "[a]s a toddler, the child is too young to be able either to read or to access social media." Here, Minor Child is capable of accessing the Internet and is able to Google her own name, which inevitably leads to Mother's website promoting The Book.

The family court further found Minor Child's mental, physical, and emotional wellbeing is unstable as evidenced by Mother taking her to counseling. The court reasoned this makes Minor Child even more vulnerable to the grave harm she would experience as a result of reading The Book.

The Kentucky Court of Appeals addressed prior restraints on parental speech in Wedding v. Harmon (Ky. App. 2016). There, the father appealed an order of the Jefferson Family Court granting the mother's motion to prohibit the father from harassing her by copying and forwarding routine co-parenting emails to individuals within the parties' local community and from sending mass emails to the parties' friends, family and other members of their community regarding the parties' dissolution, custody proceedings and co-parenting. The father's sole contention on appeal was that the order was an unconstitutional infringement on his speech. The Kentucky court affirmed the order of the family court because: (1) the father's emails were constitutionally unprotected conduct intended to harass, annoy or alarm the mother; (2) the injunction was narrowly drawn to proscribe the father's unprotected conduct; and (3) the best interests of the children were supported by the family court's limitation on the father's speech. Like the court in Wedding, we find the contents of The Book are solely aimed at disparaging, annoying, and ruining the reputation of Father.

We conclude the disparagement provision was narrowly tailored and the least restrictive means to protect the best interests of Minor Child…. The record evidences years of contention and attempts at parental alienation by both parties. The amended disparagement provision properly restricts the parties' unprotected speech so as to protect the best interests of Minor Child….

This strikes me as unconstitutional; however important the interest in protecting children's emotional well-being might be, it can't justify such a sharp restriction on parents' speech about their lives. But in any event, I thought this decision was worth noting.

Gwendolynn Wamble Barrett (Barrett Mackenzie, LLC) represents the father.