How Legal Is It to Badmouth Your Ex Online During a Divorce?
Divorce often brings out the worst in people.
Even the most even-keeled of spouses can lose it emotionally when the marital final curtain comes down. Suddenly, their partner's bad habits, weird sexual tics, and tawdry indiscretions become fair game to share with the world.
It's time to air some dirty laundry.
This impulse has probably been around since marriage first existed. But since the Internet gained popular use 20 years ago, the nuclear option of airing dirty laundry online has been irresistible for many warring spouses.
The Dampening Effect of Non-Disparagement Orders
Fortunately for everyone concerned, judges tend to have cooler heads in dealing with these battles and can usually be relied upon to issue "non-disparagement orders" to muzzle the angry combatants. These orders, which are common, are designed to prevent the parties from criticizing each other in public, in front of their children, and to third parties.
But do they impinge on constitutional free speech?
For the most part, at least, courts have said no. In one heavily publicized divorce involving NBA basketball star Steve Nash and his ex, for instance, the issue of whether post-divorce online dirty laundry is free speech attracted widespread attention. In that case, the couple's joint custody agreement contained the standard non-disparagement order requiring them to be respectful of each other regarding their three children. Nash's ex, however, began tweeting bad things about him, Nash went back to court seeking a halt to her activity, and the court agreed.
She fought back, however, contending that the order didn't cover her online activity, which was free speech. The Arizona Court of Appeals disagreed, upholding the lower court's ruling that the non-disparagement clause covered online comments.
Landmark Decision in Massachusetts
On May 7, however, one state's top court drew a radically different conclusion about divorce-related online speech. The Massachusetts Supreme Judicial Court ruled that a non-disparagement clause that specifically prohibited online discussion of the divorce was unconstitutional.
In that case, the fight was between Ronnie and Masha Shak and involved their one-year-old son. According to the New York Times, Ronnie Shak offered running commentary on the divorce proceedings, sharing it with the couple's rabbi, assistant rabbi, and members of their synagogue.
He also created a GoFundMe page entitled "Help Me KEEP MY SON," and called his ex an "evil liar."
A family court judge granted Ms. Shak's motion to halt her ex's online activities, but also put it on hold for review by the Supreme Judicial Court. On May 7, that court ruled that non-disparagement orders are unconstitutional.
"(A)s 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," Justice Kimberly S. Budd wrote, "merely reciting that interest is not enough to satisfy the heavy burden" of restricting speech.
The ruling did note that an ex who is the target of online badmouthing does have recourse: They can sue for defamation.
But, at least in Massachusetts, it's apparently legal now to go online and air as much divorce-related dirty laundry as you want.
- Find a Divorce Attorney in Your Area (FindLaw's Lawyer Directory)
- Are Non-Disparagement Clauses Legal? (FindLaw's Free Enterprise)
- Is a Social Media 'Non-Disparagement' Clause a Good Idea? (FindLaw's Free Enterprise)
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