June 30, 2020 by Robert Franklin, JD, Member, National Board of Directors
The Supreme Judicial Court of Massachusetts has ruled that family court’s order restricting a father’s derogatory remarks on Facebook about his ex-wife violated the First Amendment’s protection of free speech (New York Times, 5/9/20). Good for it.
I wrote here, here, here and here about the many ways in which family courts routinely violate constitutional guarantees with their orders. Prior restrictions on speech, travel, association and others are par for the course in family court and yet, curiously, they’re rarely challenged.
Jennifer M. Lamanna, a lawyer who represented Mr. Shak in the appeal, called the ruling a “game-changer” because family and probate judges in the state frequently give such orders, and treat violations as contempt of court, carrying severe penalties.
“There are thousands of these out there, which is why this is, for Massachusetts purposes, a landmark ruling,” she said. “People ask for them routinely and they are just handed out.”
Needless to say, I’m no fan of parents badmouthing each other, particularly when their children are there to hear. But we can surely find a way to get parents to behave better without violating one of the most precious documents we have – the Bill of Rights.
Plus, I want to know what parents have to say and I think judges should too. After all, most states have some version of a requirement that each parent promote the parent-child relationship of the other parent. So if one parent posts vile statements about the other on Facebook or elsewhere, that’s easy-to-access evidence that the poster isn’t complying with the law. If I were a judge, I’d want to know that, not have it hidden away.
Masha and Ronnie Shak were in the middle of a divorce.
As the proceedings unfolded, Mr. Shak offered a running commentary on social media, shared with the couple’s rabbi, assistant rabbi and members of their synagogue, court documents show.
He created a GoFundMe page entitled “Help me KEEP MY SON.” He called his ex-wife an “evil liar.” He illustrated the posts with a video of their one-year-old son, and told their friends to unfriend her.
Apparently he also posed their one-year-old son with a cigarette in his mouth.
The point being that, as far as divorces often go, those behaviors by Ronnie aren’t particularly outlandish or even hurtful to either Masha or their son. They’re the unfortunate and intemperate words of angry divorcing spouses. They’re certainly nothing to violate constitutional rights about, but that’s what the trial court did. Family courts often seem to try to make up the law as they see fit and rarely does anyone seem to recall to them the constitutional restrictions on their power.
“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, Justice Kimberly S. Budd wrote in a 13-page ruling.
Exactly. Courts need to find other ways of disciplining abusive or recalcitrant parents than removing their hard-won rights.