It is always a good idea to keep an eye on other jurisdictions for how they deal with novel or emerging issues. One issue recently considered was the use of non-disparagement orders to prevent parties from criticizing each other in public, in front of their children, and to third parties. It is a fairly common tool for the courts to try to force a de-escalation of rhetoric and antagonism between parties without imposing fines or sanctions on them. These restrictions are not uncommon as a form of relief in Pennsylvania and have been found in the “rules of conduct” some courts append to their orders, though such “rules of conduct” have not always been easy to enforce and some courts have discarded them in favor of other language in their orders.
Recently, this issues was addressed by the Supreme Court of Massachusetts which deemed a non-disparagement order entered in a custody case as unconstitutional. The ruling was fundamentally rooted in the concept of whether the non-disparagement order unconstitutionally restricted a party’s First Amendment rights to express their opinion. Even if those opinions are disparaging comments about their estranged spouse. In this case, the father was a voracious social media poster who made accusations against mother and provided updates and commentary on the custody case. Mother sought and secured a non-disparagement order to prevent father from litigating their case in the court of Facebook friend opinion. In overturning the order, the Court found that there was not a sufficient basis in the protection of the child from Father’s discourse on the case to justify preventing him from making public comments about it. There is also the consideration that mother has an avenue for relief available through a defamation action.
There are plenty of good, rational reasons for these orders ranging from preventing unnecessarily antagonistic behavior between the parties, to ensuring that when a child does an internet search of their parents at some point, they do not discover Facebook posts or a blog devoted their parents’ custody battle. Whether those rational reasons justifying a restriction is someone’s speech survives the scrutiny of a constitutional challenge is a different consideration altogether.
If this form of relief falls out of favor or is found to be unconstitutional in Pennsylvania, aside from increased antagonism in family law cases, there would like be an increase in defamation actions seeking financial damages. Those types of actions can have real economic consequences on parties since they may be subject to a judge or jury’s determination of what, if any, damages should be levied against the offender.
It is worth noting, however, that this case only deals with a judicially issued non-disparagement order. Provisions in agreements and stipulations will be enforceable, particularly in Pennsylvania which applies a strong contract interpretation to family law agreements.
The ruling in Massachusetts is interesting. It will be worth seeing whether a legislative answer is created for the Massachusetts family law code that can survive a constitutional challenge.
Aaron Weems is a partner in Fox Rothschild’s Blue Bell, Montgomery County, Pennsylvania office and practices throughout the greater Philadelphia region. Aaron can be reached at 610-397-7989; firstname.lastname@example.org and found on Twitter @AaronWeemsAtty.