Divorcing couples have a First Amendment right to disparage each other on social media even if probate judges are worried the bitterness will impact the mental health of children caught between their warring parents, the state’s highest court has ruled.
In a unanimous ruling, the Supreme Judicial Court said free speech rights were wrongly curtailed by a non-disparagement order forbidding the husband or wife from posting about the divorce on Facebook and other social media sites until their child turned 14. At the time the order was issued, the child was a toddler, the SJC said.
“We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech,” the SJC ruled. The 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…[but since] there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.”
The social media ban was crafted by two Norfolk Probate and Family Court judges arising from the divorce between Ronnie Shakand his former wife, Masha M. Shak, who had one son born in 2017 during their 15-month marriage, records show.
In 2018, Ronnie Shak made multiple Facebook postings accessed by members of the former couple’s synagogue, Masha Shak’s relatives, and a Facebook group with more than 700 members. The postings accused Masha Shak of wrongly blocking Ronnie Shak from seeing their son, leading Probate and Family Court Judge Virginia Ward to issue a two-paragraph order that banned both from posting “any comments, solicitations,solicitations, references or other information regarding this litigation on social media."
Misha Shak sought a contempt citation when Ronnie Shak posted on Facebook after Ward’s order. Judge George Phelan then took up the matter and issued an 11-page order banning social media postings until the couple’s son turned 14. Phelan also put the ban on hold so the SJC could review the constitutionality of his decision, which he said he believed was necessary but raised significant legal issues that the top state court must address.
In a 13-page ruling written by Justice Kimberly S. Budd, the SJC said government has very limited authority to stop someone from publicly expressing their views under the First Amendment and Article 16 of the state’s constitution. Prior restraint is acceptable when harm is immediate and cannot be prevented by any means other than suppressing the free speech rights, the court noted.
But there was no evidence in this case, the court said in the decision issued Thursday.
“The potential impact on a child’s mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child,” the court noted.
Budd added: “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."
The court noted that probate judges - and litigants - may be able to curtail social media postings under other laws, by reaching a mutually agreed upon non-disparagement order, or by civil lawsuits for emotional harm. Judges can also caution the parents their social media postings will impact custody decisions, the SJC said.
But none of the laws are even necessary, the court noted, if the parents recognize what’s most important during divorce litigation - their children.
"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,'' the SJC said.