The explicable, but almost certainly unconstitutional, restraint on parents and spouses posting to social media

Posted Friday, August 21st, 2020 by Gregory Forman
Filed under Child Custody, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, Of Interest to General Public

A few months ago, the New York Times posted a story, Divorcing Parents Have a Right to Post Their Stories Online, Court Says, discussing a Massachusetts Supreme Court decision that decided exactly what the headline indicates. I didn’t write about it at the time because I’d yet to encounter South Carolina Family Courts issuing such restraints. I had the court issue one today. It’s almost certainly unconstitutional.

In Shak v. Shak, 484 Mass. 658 (2020), the Massachusetts Supreme Court addressed restraints issued by the family court that prevented father/husband from posting to social media information about the domestic litigation or disparaging the mother/wife. These restraints were intended to protect the best interests of the parties’ child from acrimony between his parents. Still, the Massachusetts Supreme Court did not believe these restraints were tailored narrowly enough to justify prior restraints on a party’s right to free speech, holding:

However, 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.

Assuming for the sake of discussion that the Commonwealth’s interest in protecting a child from such harm is sufficiently weighty to justify a prior restraint in some extreme circumstances, those circumstances do not exist here. No showing was made linking communications by either parent to any grave, imminent harm to the child. The mother presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt. As a toddler, the child is too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

Given that this Massachusetts cites numerous United States Supreme Court opinions on free speech and prior restraint in reaching this decision, it is likely every state Supreme Court would address the issue similarly. Such prior restraints on speech may be intended to help litigants lower the tension level but they are almost certainly unconstitutional.

Further, a restraint against discussing the litigation on social media is particularly problematic. Speech regarding government is entitled to heightened protection as it is one of the core functions of the First Amendment. The courts are government agencies. Telling folks they cannot criticize/discuss the work of government agencies is typical of authoritarian countries–not democracies.

Any South Carolina family court attorney itching for a fight can probably successfully fight these restraints.

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