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Are Non-Disparagement Orders Constitutional?

The Massachusetts Supreme Court recently ruled that non-disparagement orders in family court cases are a violation of a parent's free speech rights guaranteed under the First Amendment. A non-disparagement clause in divorce and custody orders prohibits one parent from speaking negatively about the other parent in the presence of children or on social media. Although the Massachusetts Court noted the importance of protecting a child from the emotional and psychological harm that could result from one parent's use of vulgar or disparaging words about the other, it held that merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint on speech. In addition, concern about potential harm that could occur if the child were to discover the speech in the future was speculative.

The issue of whether such court-imposed orders violate a parent's constitutional right to free speech has not yet been tested in Connecticut. After hearing evidence of parents insulting and disparaging each other in the presence of their children or over social media, Connecticut family courts often make orders prohibiting parents, and sometimes extended family members, from speaking negatively about the other parent. A typical non-disparagement clause might read, for example, "Neither party shall disparage the other, or allow any third party to do so in the presence of the children or on social media or other media to which the children may have access now or in the future."

Until such time as the constitutionality of non-disparagement orders is challenged in Connecticut, trial courts will continue to use these clauses as tools to change bad parental behavior. Parents involved in contentious divorce and custody proceedings, however, would best be served by controlling their impulses to bad mouth their ex. Absent an exceptional circumstance that would justify the imposition of a prior restraint on speech, the best solution is for parents to exercise self-restraint and refrain from maligning their co-parent in the presence of their children or on social media. It is much better to vent to a friend or therapist. Warring parents who choose to disparage their co-parent to the detriment of their children run the risk that their bad behavior may be factored into future custody determinations. These parents could lose parenting time or worse, custody. Of course, those parents who do not trust that the other parent can show self-restraint are welcome to voluntarily enter into their own non-disparagement agreements. Such agreements are common and when entered in family court, are enforceable. There would be no constitutional objection to something on which both parents agree.

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