A recent Massachusetts Supreme Judicial Court case discusses an important issue at the intersection of family law and the First Amendment — a nondisparagement order. In custody cases, can a court issue an order that compels the parents not to disparage each other?


What is a Nondisparagement Order?

Generally, a court may issue a nondisparagement order in a contested custody case. This is particularly true if there is a complete breakdown in communication between the parents. Essentially, these orders prohibit the parents from saying anything derogatory about the other parent to the child. A court orders them in cases where it is in the best interest of the child to have one in place.

After the case of Shak v. Shak, however, a nondisparagement order may be much more difficult to obtain in Massachusetts custody cases. This issue is of such importance that both the Boston Globe and the New York Times covered this landmark case.


The Case: Shak v. Shak

Trial Court

In the case, Shak v. Shak, the parties were married for fifteen months. They had one child. During their divorce proceedings, the wife filed a motion for temporary orders. In her motion, she requested that the judge prohibit the father from posting disparaging remarks about her and the ongoing litigation on social media. Accordingly, the judge issued an order prohibiting either party from disparaging the other, especially within hearing range of the child. The order also prohibited either parent from publishing certain posts. These posts included any comments, solicitations, references or other information regarding the litigation on social media.

Later, the wife alleged the husband violated that order by posting about the litigation. The wife further alleged the husband disparaged her in his social media posts. She also said that her ex-husband had shared these posts with members of her religious community and her business clients. The husband’s answer to the wife’s motion argued that the judge had no authority to issue a nondisparagement order. The husband reasoned that the order amounted to a prior restraint on speech.

A different judge held a new hearing. The new judge declined to find contempt on the ground that the first order, as issued, constituted an unlawful prior restraint of speech in violation of the husband’s constitutional rights. Nonetheless, the new judge also concluded that orders restraining speech are permissible if narrowly tailored and supported by a compelling state interest.


Supreme Judicial Court

The Supreme Judicial Court granted direct review of this important constitutional issue.

The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.” As the Supreme Judicial Court explained, nondisparagement orders are, by definition, a prior restraint on speech. And, because these carry with them an “immediate and irreversible sanction” without the benefit of the “protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted,” prior restraints are the “most serious and the least tolerable infringement on First Amendment rights.”

“Turning to the order in question, the judge properly noted that ‘the State has a compelling interest in protecting children from being exposed to disparagement between their parents[,]’” the high court held. “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 some cases may satisfy this heavy burden, such was certainly not true in this case, the high court said. “No showing was made linking communications by either parent to any grave, imminent harm to the child,” the court explained. “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.”


Not All Nondisparagement Orders are Unconstitutional

The Supreme Judicial Court clarified that this decision does not mean all nondisparagement orders are unconstitutional. For example, the court noted, the decision does not affect cases where the parties enter a nondisparagement order voluntarily. The high court noted parties who feel disparaged have options. For one, the disparaged party can seek a harassment prevention order. Alternatively, the disparaged party can file a claim of infliction of emotional distress.


Contact Us

If you are looking for a highly qualified divorce and family law attorney, or have questions about nondisparagement orders, contact us. You may schedule a free consultation online with our experienced attorneys at Turco Legal. If you’d prefer to schedule a consultation by phone, call (866) 995-6663.