Are Non-Disparagement Clauses Constitutional?

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Unfortunately, the emotionally charged circumstances of divorce and custody cases can create very difficult conditions for the parties and their children. On occasion, one or both parties will engage in disparaging behavior - calling the other party names in public and to third parties, making insulting comments on social media, and spreading disinformation within the community about the case and the other party.

This tendency can be quite damaging, especially when there are children involved. The children, sadly, are often caught up in the whirlwind of invective. In recognition of the deleterious effects that such exposure can have on children, courts have frequently relied on non-disparagement orders in an attempt to protecting the children by restricting the parents from engaging in this harmful behavior.

The Supreme Judicial Court has now found that such orders are unconstitutional. In the Shak matter, the SJC ruled that non-disparagement orders issued by a court are in violation of the first amendment rights of the parties, as they constitute an impermissible prior restraint on speech.

The SJC recognized that the first amendment right to free speech is not absolute, and that in limited circumstances there may be cause to create a prior restraint on speech. However, the SJC noted that prior restraint is an "extraordinary remedy" and that there is a heavy presumption against its constitutional validity. In order to determine if a prior restraint is valid, a court must find that it is justified by a compelling state interest to protect against a serious threat of harm.

In the context of non-disparagement orders, the SJC found that, although there is a compelling state interest in protecting children from being exposed to disparagement between the parties, "merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint." The SJC noted that there was no evidence that the child in the case had been exposed to the disparaging behavior or would understand it, and that the speculative nature of any harm is not sufficient to outweigh first amendment rights.

It is a curious decision. Based on the decision's account of the prior proceedings, it is unclear whether either party even had the opportunity to present evidence that the child would be harmed by being exposed to the disparagement. Moreover, this case involved a toddler - it is very unclear that the SJC's rationale would apply to children who are even a little bit older than that.

Although the SJC does mention that parties are not prohibited from entering into non-disparagement agreements, the suggestions that the SJC makes as alternatives to non-disparagement orders would probably create further litigation. Harassment Prevention Orders, civil suits for Defamation or Intentional Infliction of Emotional Distress, or "factoring in" the disparaging conduct to a custody determination are all likely to create more conflict and escalate costs. Further, even if the decision is read narrowly to apply only to a very narrow set of circumstances, the implicit invitation to present evidence of harm would create an intrusive process that will drag the children into the litigation and expose them further to GALs or probation officers.

It remains to be seen how this decision will impact high-conflict divorce or custody matters, and of course there must be a balancing of free speech interests, but the preliminary indications are that this will unfortunately invite more conflict.

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