Judicial Non-Disparagement Orders Encounter a Constitutional Speed Bump

In Nevada and in other states across the U.S., courts have with increasing frequency attempted to counteract the emotionally charged and often abusive interactions between divorce litigants who share the custody of minor children, by imposing so-called “non-disparagement” orders. Non-disparagement orders are often issued during contentious divorce or child custody proceedings as a means of protecting the children’s best interest. Theoretically, the objective of such orders is to shield the psychological well-being of the parties’ minor children from the breakdown in the personal relationship between their parents. That breakdown can often be exhibited in defamatory, vitriolic, and sometimes vulgar statements directed at one parent by another.
In a May 2020 Massachusetts high court decision, Shak v. Shak, the state’s Supreme Judicial Court invalidated a lower court’s issuance of a non-disparagement order in a divorce action, concluding that it violated the United States Constitution as an impermissible “prior restraint” on speech. The term “prior restraint” is used to describe an administrative or judicial order forbidding certain communications when the order issued in advance of the time that such communications are to occur.
The Shak case concerned divorcing parents who had been married for 15 months and had a one-year-old child. The mother filed for divorce and alleged aggressive physical behavior and temperamental and threatening outbursts by the father. The mother also requested that the judge prohibit the father from posting disparaging remarks about her and the ongoing divorce litigation on social media. The judge ultimately ordered that neither party was to disparage the other – nor permit any third party to do so – especially when within hearing range of their child. The judge also ordered that neither party was to post any comments, solicitations, references or other information regarding the divorce action on social media.
The mother thereafter sought to hold the father in contempt of the court’s order, claiming that the father violated the court’s order by publishing numerous social media posts and commentary disparaging her and detailing the specifics of the divorce litigation on social media platforms. Wife also alleged that the father had shared those posts with members of her religious community, including her rabbi and assistant rabbi, as well as with her business clients. The father opposed the contempt application by asserting that he had not been timely notified of the Court’s order, and he also argued that the judge lacked the authority to issue a prior restraint on constitutionally protected speech.
After a hearing, the presiding judge declined to find the father in contempt of the court’s order, and agreed with the father’s argument that the order constituted an unlawful prior restraint of speech in violation of the father’s federal and state constitutional rights. The judge, however, concluded that orders restraining speech are permissible if they are narrowly tailored and supported by a compelling state interest. The judge then attempted to cure the deficiencies in the original order by adding more detail to the non-disparagement provisions.
On appeal, the Massachusetts Supreme Judicial Court noted that the First Amendment to the United States Constitution provides that “Congress shall make no law…abridging the freedom of speech.” Further, “as a general matter, the First Amendment means that a government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Non-disparagement orders are, by definition, a prior restraint on speech. Because a prior restraint of speech or publication carries with it an immediate and irreversible effect, it is the most serious and least tolerable infringement on First Amendment rights. In illustrating the point, the appellate court quoted a 1975 decision of the U.S. Supreme Court which observed: “A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand.”
The appellate court agreed that in order for a prior restraint to be potentially permissible, the harm from the unrestrained speech had to be truly exceptional. Essentially, that projected harm has to be almost certain, and a showing had to be made that there were no alternative, less restrictive means to mitigate the harm. In other words, the bar for a permissible prior restraint is extremely high.
The traditional forum where prior restraints of speech are litigated is American print media. But the concept also has relevance and potential applicability in the context of protecting children in divorce proceedings. In Shak, the appellate court turned to the non-disparagement order in question, and it noted that the state has a compelling interest in protecting the physical and psychological well-being of children, and in shielding them from disparagement between their parents. But the court said that as important as it is to protect children 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 public policy is not sufficient to satisfy the heavy burden of justifying a prior restraint.
The appellate court pointed out that no showing had been made in Shak that linked communications of either parent to any grave, imminent harm to the child. The mother presented no evidence that the child had been exposed to, or would even understand, the speech that led to the underlying motion to hold the father in contempt. As a toddler, the child is too young to be able to read or access social media. The concern that potential harm could occur if the child were to discover the speech in the future was speculative and could not justify a prior restraint. Harm to a child cannot be assumed or surmised simply by virtue of speech, but it must be demonstrated in detail.
Of note to the Massachusetts Supreme Judicial Court’s ruling in Shak is that measures short of prior restraint are available to litigants and judges in which abusive and disparaging speech is a concern. For example, parties to divorce proceedings may enter into non-disparagement agreements voluntarily, as distinct from those sought by motion to a court. Alternatively, a parent who is the target of disparaging speech that is sufficiently severe may also have the option of seeking a protective or harassment prevention order under applicable law.
While the Shak decision only has direct legal applicability in Massachusetts, the case has precedential value and may well have consequences for the availability and judicial use of non-disparagement orders in Nevada. The finding of judicial overreach in Shak is very reminiscent of the Nevada Supreme Court’s 2008 order in Johnson v. Eighth Judicial District Court, which invalidated a Nevada family division order for manifest abuse of discretion.
In Johnson, a district court ordered an entire post-divorce case file sealed, and broadly prohibited all communication related to the case by way of a gag order. On a review of the order, the Nevada Supreme Court first determined that Nevada’s “public inspection” statute, NRS 125.110, did not permit the unfettered sealing of an entire divorce case file beyond the precise and narrow terms of the statute. The court also found that the district court’s gag order violated the free speech guarantees of the First Amendment to the United States Constitution because the order’s limits and requirements were unascertainable. The court also concluded that the gag order in Johnson prevented the case participants from making extra-judicial statements about their own case, and it amounted to a prior restraint on speech that was impermissible under the First Amendment. In view of Johnson, it seems quite possible that the thrust of the Shak holding on judicial non-disparagement orders may be viewed favorably in Nevada.