Nondisparagement orders in a divorce case were an unconstitutional prior restraint on free speech, according to a recent ruling by the Massachusetts Supreme Judicial Court.
The court vacated the nondisparagement orders because they were not supported by evidence of “grave, imminent harm” to the toddler child of the divorcing parents, which is necessary to justify an order restraining parents from posting comments on social media.
“[A]s 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 wrote.
In the underlying divorce case, the mother pursued a contempt action against the father for posts he made on Facebook about the proceeding.
Richard Novitch, counsel for the mother, told the New York Times that while the decision is “constitutionally sound … common sense would suggest that children should be insulated from the combat between parents. It will give license to a lot of bad actors to say what they want, regardless of where and when and the circumstances.”
The opinion in Shak v. Shak noted that voluntary nondisparagement orders are constitutional.
Mr. Novitch observed that “people with common sense [will] reach an accord in which each agrees not to disparage the other. It will be based on the agreement of the parties, not on judicial fiat.”
Mr. Novitch represents clients in all aspects of domestic relations law, including complex matrimonial matters, and has extensive experience handling complex cases and issues on appeal, including matters before the Massachusetts Supreme Judicial Court and Massachusetts Appeals Court.
Gary O. Todd and Julianna Zane worked with Mr. Novitch on the appeal to the SJC.