Shak v. Shak, ____ Mass. _____, SJC-12748 (2020).
Nondisparagement clauses are ubiquitous in custody agreements and orders. Generally, they are a blanket prohibition on a parent from “talking bad” about the other parent in a form that the minor child(ren) will understand (whether in their presence or on social media, etc.). These clauses are commonly included so that the child will grow up in a less tumultuous environment, free from psychological harm that stems from hurtful exchanges of words. In fact, our own courts have guidelines that are commonly incorporated into custody orders. However, the Massachusetts Supreme Court recently reviewed these clauses under a constitutional lens, and the result is quite interesting.
1. Facts: The Mother filed an emergency motion to remove the Father from the marital home based on the Father’s aggressive behavior, temper, threats, and substance abuse. A judge issued the order to vacate and granted Mother sole custody. In a temporary order, the judge included provisions that “[n]either party shall disparage the other – nor permit any third party to do so – especially when within hearing range of the child[,] and “[n]either party shall post any comments, solicitations, references or other information regarding this litigation on social media.” Once Father made such posts on social media platforms and shared them with mutual friends, Mother filed for civil contempt. Father then raised free speech issues. The judge failed to find contempt and ruled that the temporary order was indeed an unlawful prior restraint on speech. The judge then sought to cure the previous language by narrowly tailoring the provisions that borrowed thematically from time, place, and manner restrictions on speech. The judge then submitted those provisions, along with the constitutional question to the state supreme court for review.
2. Issue: Are the nondisparagement provisions in the order an unconstitutional prior restraint on speech?
3. Holding: Yes.
4. Rationale: The Shak Court found that administrative and judicial orders prohibiting speech when they are issued in advance of any conduct can amount to a prior restraint. Further, prior restraints are the least tolerable of infringements on the First Amendment because the consequences are immediate, and the impact is prior to judicial relief. The Court next reasoned that, in Massachusetts, prior restraints pass constitutional muster if they serve a compelling state interest, and if they are “no greater than is necessary” to protect said interest. While the state certainly has a compelling interest in protecting minor children from exposure to arguments and crude language that stem from an acrimonious divorce, simply citing the interest does not satisfy the test. Rather, the Court found that there was no interest in this case because there was no evidence that the minor child could even access, read, or understand any potential social media posts. Moreover, the Court found that any potential harm from reading disparaging speech in the future was “too speculative;” there were no showings that this particular child’s physical, mental, or emotional state would make him vulnerable to harm at any point if he were exposed to the disparaging words from one parent to another (emphasis added). Therefore, the Court vacated the order. Afterwards, the Shak Court then enumerated alternative avenues for ways to discourage potential disparaging speech that would not run afoul the First Amendment: voluntary nondisparagement agreements, harassment prevention orders, intentional infliction of emotional distress, defamation, and instructions to parents that behavior would be a factor in subsequent custody actions.
5. Lessons and Observations:
a. First, we should consider whether nondisparagement clauses were ruled to be on-their-face unconstitutional or as applied to the order in Shak. The discussion makes it seem that this is an as-applied case, where the Mother failed to show why the disparaging remarks would harm her child, and how the prior restraint would serve the state interest.
b. The Shak Court seemed to understand that their ruling could lead to the challenging of many custody orders and agreements and therefore tried to dial back the impact by providing the laundry list of alternate means of discouraging disparaging speech.
c. What now must be required for a nondisparagement clause in a custody order or agreement to pass constitutional muster? Should it be in the construction of the clause itself? The Shak Court did not seem to consider that, but rather based it on what could be shown by the party alleging contempt after the fact. Yet they ruled that the order in Shak, even the revised one, was invalid. Going forward, does that mean that attorneys should include in their nondisparagement clauses a factual basis of why it will serve the compelling state interest of preventing physical/mental/emotional harm? Or can that wait to be shown at contempt hearings?