Protecting Children From a Former Spouse Who Disparages You Over Social Media Requires Exceptional Circumstances
An unfortunate reality clients can face after divorcing a spouse, especially one who is prone to substance abuse or has a serious emotional condition, is disparaging posts on social media. In Shak v. Shak, SJC-12748 (2020), the Supreme Judicial Court of Massachusetts considered a situation involving a child of young age whose Father and non-custodial parent posted derogatory comments about the child's Mother on social media. The Mother had previously obtained a Temporary Order that prohibited the Father from disparagement and posting comments regarding the divorce proceedings on social media. She filed a Complaint for Contempt after the Father posted derogatory remarks on social media thereafter and allegedly shared the posts with members of the Mother's religious community and her business clients. The Father opposed the Contempt by invoking his First Amendment right to Freedom of Speech and the disfavored doctrine of Prior Restraint. Prior Restraint occurs when government action prohibits speech or other expression before the speech happens and is viewed as a serious threat to the rights of free speech.
The Family and Probate Court declined to issue the requested relief but sought the guidance of the Supreme Judicial Court. After pointing out that it had never upheld a Prior Restraint, the SJC held that the Mother in the case at bar failed to meet the very high standard for obtaining such an order and denied her relief. A primary consideration for the SJC was the child's young age. It opined that a toddler could not read or access social media, could not even understand the speech involved, and that the child in question was not shown to have a physical, mental or emotional state that would make him especially vulnerable to the type of direct and substantial harm that might justify the imposition of a Prior Restraint.
The SJC did not completely rule out the possibility that a prior restraint could be justified in a case involving the well being of a child, but made it clear that a heavy burden would apply. A party seeking a prior restraint will have to demonstrate grave, imminent harm to their child and that imposing a prior restraint is the only means to protect the child from emotional and psychological harm. It pointed out other potential recourses against disparaging speech that do not implicate a defendant's constitutional rights such as harassment prevention orders and the torts of intentional infliction of emotional distress and defamation. In the end, the Court encouraged parents to "...rise above any acrimonious feelings.... and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another."
The SJC's reasoning and conclusion upholding the First Amendment right of freedom of speech is not surprising even though the behavior alleged was eggregious and unjustified. However, as every litigant who is up against a cantankerous, mentally ill or substance addicted adversary will attest, it is hard to consider hatred-infused speech worthy of First Amendment protection. The Mother in the Shak case is bound to find herself in court often as Complaints for Contempt for statements already published appear to be her only available remedy.
Kathryn O'Leary has more than thirty years of experience representing clients before Massachusetts civil courts including Probate and Family Law Courts. You can reach her at
KATHRYN A. O'LEARY, ESQ.
1049 Main Street
Unit 30831
Worcester, MA 01603
(508)-251-9668
KathrynOlearyEsq@gmail.com