In a unanimous ruling, the Supreme Judicial Court in Massachusetts (that’s like the state Supreme Court in a normal state) held that free speech rights were wrongly infringed upon by a lower court’s non-disparagement order forbidding the husband or wife from posting about their divorce on Facebook and other social media sites until their child turned 14. The child at issue was a toddler when the ruling was handed down.
It is disturbing to me that judges lack sufficiently Americanized ethics alarms to squelch the temptation to issue rulings like the one overturned. Sure, kids are harmed by their parents saying terrible things about each other, but there is nothing special about such communications on social media. Parents harm their kids by screaming at each other in the kitchen. That’s life.
“We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech,” the Supreme Judicial Court ruled. Though the judge “put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself… there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.”
Two Norfolk Probate and Family Court judges issued the original bans when the ugly divorce between Ronnie Shak and his former wife, Masha Shak, who shared one son born in 2017, spread to social media.
Ronnie Shak posted on a Facebook page frequented by members of the former couple’s synagogue, Masha’s relatives, and a Facebook group with more than 700 members. Some of his comments accused Masha of blocking him from seeing their son, so a judge issued a two-paragraph order that banned either Shak from posting “any comments, solicitations,solicitations, references or other information regarding this litigation on social media.”
Nonetheless, Ronnie Shak posted anti-Masha content on Facebook anyway. A second judge then issued an order banning social media postings until the couple’s son turned 14.
The SJC said government has very limited authority to stop someone from publicly expressing their views. Prior restraint, which is clearly what the lower court judges had ordered, is only acceptable in rare cases when harm is immediate and cannot be prevented by any means other than suppressing the free speech rights. “The potential impact on a child’s mental health at some point in the future does not meet that high legal threshold, especially in this case where the child cannot on his own access social media and when no information has been produced showing a current link between Facebook postings and proof of an emotional harm to the child,” the court wrote, adding,
“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.”
Restrictions on speech shouldn’t be necessary, the opinion pointed out, if the parents recognize what’s most important during divorce litigation: their children.
“The best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another.”
Yes, I think we can agree that this is a better solution than creating a precedent that endorses government interference with freedom of speech and expression.