Custody orders often include nondisparagement provisions which prohibit parties from speaking negatively about each other in front of their children. The question of whether these provisions should be viewed as necessary to protect the children's best interests or as an infringement on one's right to free speech under the U.S. Constitution was recently addressed in Massachusetts. In the case, Shak v. Shak, the Massachusetts Supreme Judicial Court (SJC), found that a nondisparagement provision included in a custody order is an impermissible restraint under the First Amendment right to freedom of speech. The outcome of this case was surprising to many family law practitioners, because logic dictates, that courts should have the ability to control the behavior of parties in custody matters to protect children from the psychological and emotional harm that could result from the disparagement of one parent by the other. One common means of preventing this harm, preemptively, is through the use of non-disparagement provisions in court orders. Given the outcome of the Shak case, there is a question as to whether litigants in Pennsylvania and other states will now challenge these provisions as being unconstitutional.

The order entered by the trial court in Shak initially provided, in pertinent part that:

  • Neither party shall disparage the other—nor permit any third party to do so—especially when within hearing range of the child.
  • Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media."

Mrs. Shak filed for contempt of this order, arguing that Mr. Shak's social media posts disparaged her and disclosed details of their litigation. Mr. Shak challenged the order, arguing that the judge did not have the authority to enter an order which contained a prior restraint on his speech. In response, the judge issued a subsequent order containing more specific restrictions in an attempt to make the prohibitions narrowly tailored. The new order provided clear time frames for the social media restraint (i.e., until the parties had no common children under fourteen years old), limited the restriction to only prohibit posts "on any social media or other Internet medium," narrowed the prohibited disparagement to comments "about the party's morality, parenting of or ability to parent any minor children," and listed specific examples of expletive words that were prohibited. When the parties had any children between the ages of 3 and 14, the new custody order further prohibited disparaging comments if the children are within a certain range of the party or could see, read or hear the disparagement. The Massachusetts SJC granted Mrs. Shak's application for direct appellate review of the order.

After review of the additional detail added to the non-disparagement provisions of the new order, the Massachusetts SJC found in favor of Mr. Shak and vacated these provisions. The SJC made it clear that nondisparagement orders "are, by definition, a prior restraint on speech." The SJC explained that such restraints are only permissible "where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm." While the Massachusetts SJC acknowledged that a compelling interest exists to protect children from being exposed to disparagement between their parents, the court noted that "merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint." The SJC, thus, concluded that there was "no showing that any harm from the disparaging speech is either grave or certain," and these provisions of the Order were vacated.