Court Rules Involuntary Non-disparaging Clauses Unconstitutional


The Massachusetts Supreme Judicial Court (SJC), on a case of direct appellate review, recently ruled (May 7, 2020) that involuntary nondisparaging clauses are an “impermissible restraint on speech.” Shak v. Shak, SJC-2748. These types of clauses are frequently used to prevent spouses from discussing their cases on social media. The Court held: “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 restricting speech.” This is a landmark ruling as it potentially effects thousands of cases in the Probate & Family Court system. The ruling does not apply to voluntary non-disparagement agreements. The SJC did uphold the notion that “the State has a compelling interest in protecting children from being exposed to disparagement between their parents.” The SJC in Shak held that that there must a showing of extreme circumstances linking the communications of the other parent to grave or imminent harm to the child in order to justify such an Order. The mere fact that a young child might discover the disparaging posts on social media in the future was deemed to speculative to justify an order preventing a party from posting disparaging comments about the other parent on social media. The Court also found that there are measures available to the parties short of involuntary disparagement clauses such as voluntary agreements to refrain from social media postings which would be permissible or civil litigation for defamation or intentional infliction of emotional distress. The decision also pointed out that Judges can continue to make clear to the Parties that their behavior, including any disparaging language about the other parent, can and will be factored into any subsequent custody or parenting determinations. The Court did leave open the possibility that there are exceptional circumstances that will justify the imposition of a prior restraint (impingement on free speech is called a prior restraint) such as an involuntary disparagement clause. If you are having difficulty with a former spouse or significant other who disparages you on social media or to the child, Berid & Schutzbank can explain your rights and options in light of this game changing decision.

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