For a spouse going through a contentious divorce, venting about one’s soon-to-be ex to family and friends is a common, often cathartic exercise. For some, however, close confidants may not represent a large enough audience. Enter social media: an efficient way to air all of your partner’s dirty laundry to friends, family, coworkers, and people you haven’t spoken to in high school in one concise post. For the spouse on the receiving end of such a post, the natural inclination may be to run into court to ask a judge to put a stop to the social media campaign, creating an interesting intersection between family law and the first amendment. As the Massachusetts supreme court recently held, while such posts are certainly unwise, they are, perhaps regrettably, legal.
After fifteen months of presumably blissful marriage, Masha Shak filed for divorce from her husband, Ronnie Shak, who then took to social media to share, with Masha’s friends, clients, and even her rabbis, all of his opinions about his soon to be former wife. Masha successfully sought and obtained a restraining order which prohibited both parties from using social media to call the other names or comment about his or her morality or parenting ability, and further restricting them from saying anything negative about the other while within 100 feet of their one year-old child. Ronnie appealed.
Echoing the immortal words of Walter Sobchak, that “the Supreme Court has roundly rejected prior restraint,” the Massachusetts supreme court reversed, concluding that the divorce court violated Ronnie’s First Amendment rights by prohibiting him from speaking his mind. In the absence of any suggestion that Ronnie’s actions were harmful to the parties’ child, the court concluded that Masha failed to carry her heavy burden of justifying a prior restraint on Ronnie’s speech.
While Illinois courts have yet to address this issue, the result here would likely be the same as in the Shak case. So what is a disparaged party to do?
First, while the law likely prohibits court orders restraining parties’ speech, it does not prevent divorcing parties from agreeing not to disparage each other. A mutual non-disparagement agreement, entered early in a case, represents a lawful and effective means of ensuring both parties keep their private issues private. Such an agreement, if violated, can expose the disparaging spouse to sanctions and other penalties.
Second, the First Amendment does not protect all speech. For example, while a court cannot punish a husband who accuses his wife of being a bad parent (i.e. a statement of opinion), it can punish a wife who falsely accuses her husband of being a pedophile or of carrying a venereal disease (i.e. a statement of fact). Such statements, if false, can expose the speaker to civil liability for defamation.
Third, as Shak suggests, the law may provide more protection for disparaged parties with older children who may be able to view their parent’s social media posts. Courts tasked with protective the best interests of minor children may be able to curtail their parents’ speech to the extent that speech is harmful to a child’s mental or emotional well being.
Finally, even if bad-mouthing a spouse on social media is technically legal, that doesn’t make it wise. Nothing prohibits a judge from considering one parent’s vitriolic behavior (online or otherwise) when determining how to allocate parenting time and decision-making responsibilities. To paraphrase Cops, anything you say online, can and will be used against you in a court of law.
Matthew D. Elster, Divorce and Family Law Partner