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Editorial Advisory Board: Protecting the child, obeying the Constitution

Family court judges in Maryland follow the frequent practice of sua sponte adding a nondisparagement provision to divorce decrees, simply announcing that fact to the parties. While parties to a divorce can always enter into nondisparagement agreements voluntarily and have them enforced by courts, a decision by the Massachusetts Supreme Judicial Court rendered on May 7 places court ordered non-disparagement provisions under a serious cloud.  For good reason.

Ronnie and Masha Shak were married for little more than a year and had one child together, a son. When the son was 1 year old, the mother filed for divorce. Granting an emergency motion by the mother, a probate and family court judge ordered the father to vacate the family home and temporarily awarded the mother sole custody of the child, pending a hearing.

Before the hearing, the mother sought temporary orders prohibiting the father from posting disparaging remarks about her and the ongoing litigation on social media. After the hearing, the judge issued temporary orders that included the requested relief.

The mother thereafter filed a complaint for civil contempt, alleging that the father posted on social media information about the litigation and disparaging comments about her. The father denied timely notification of the order and alleged the judge had no authority “to issue [a] prior restraint on speech.”

A different judge conducted a hearing and ruled for the father because the order was an unconstitutional prior restraint of speech. The judge concluded, however, that a restraint on speech was permissible if the order was narrowly tailored and supported by a compelling state interest.

The judge crafted new orders that were, if anything, more sweeping in scope and lasted until their son turned 15: nothing to be posted on social media or otherwise on the internet communicating any disparagement “about the party’s morality, parenting of or ability to parent any minor children.” Nor could either parent communicate to anyone disparagement where the son, from age three to 14, “may be in a position to hear, read or see the disparagement.”

The court claimed justification based on protecting the best interests of the minor child, the same standard that applies in Maryland.

Taking the case on direct appellate review, the SJC reversed: “Nondisparagement orders are, by definition, a prior restraint on speech.”   prior restraint is an order “’forbidding certain communications in advance of the time that such communications are to occur.’”

The presumptive unconstitutionality of prior restraints has been settled First Amendment law since the 1931 Supreme Court case of Near v. Minnesota ex rel. Olson. Citing to Nebraska Press Ass’n v. Stuart, the SJC stated that a prior restraint is permissible “only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.”  A prior restraint is appropriate “only in exceptional cases.”  Further, procedural safeguards must be in place to protect against improper issuance of such an order.

This was, the SJC held, not an exceptional case: Merely reciting the compelling interest in protecting children from exposure to disparagement between parents “is not enough to satisfy the heavy burden of justifying a prior restraint.”  Perhaps it could “in some extreme circumstances, [but] those circumstances do not exist here.”

No effort was made linking communications by either parent “to any grave, imminent harm to the child.”  Potential harm arising from future discovery of disparagement ”is speculative and cannot justify a prior restraint.”

The SJC was careful to list various means by which courts and parties can respond to untoward speech after it happens: a harassment protection order, and seeking damages for intentional infliction of emotional harm or defamation. Also, judges “can make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.”  Here, though, “there was no showing an exceptional circumstance that would justify the imposition of a prior restraint . . ..”

The same First Amendment applies in Maryland. Family court judges cannot constitutionally sua sponte insert a nondisparagement provision in any decree absent exceptional circumstances and the virtual certainty of harm.  If a court does so, counsel should advise the client of the right to object on the ground of unconstitutionality.

While it is proper for a judge to state that any disparagement may have future consequences, the court cannot lawfully seek to avoid the constitutional bar by threatening that the failure to consent could harm the party’s current custody position.

The justice system has ample arrows in its quiver to protect the best interests of the child; it doesn’t need to trample the First Amendment to achieve that goal.

Editorial Advisory Board members James B. Astrachan, C. William Michaels, Ericka N. King and Angela W.  Russell did not participate in this opinion.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.