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The Facebook posting dilemma

by | May 14, 2020 | Custody & Visitation, Divorce, Firm News

The Massachusetts Supreme Judicial Court issued a troubling decision last week, in which it ruled that an order preventing a parent from posting about his children on social media violated the father’s constitutional right to freedom of speech. Even if the court entered the order in question to protect the child, this decision will no doubt reverberate throughout the country, and be the subject of similar cases in which parents in the midst of nasty custody battles seek to wage their wars publicly. In the case in question (Shak v. Shak), the court entered an order, which is common in any custody matter, which prohibited the father from posting disparaging remarks about the mother and the ongoing litigation on social media. After a second court hearing, the Court further refined the order to more narrowly define what was not allowed. The court included that social media postings could not contain comments about the mother’s morality or parenting ability of any minor children. Also, the Court prohibited the posting of a litany of curse words.

These types of orders are commonplace in family law matters.  In California which is quite liberal in protecting the children by any means might have come down differently than Massachusetts. However, this ruling definitely opens the flood gates for parents to write how they feel about the other parent without any restrictions or thought about how it might hurt the other parent and the child in the long run.

The Family law court already stands in the place of a parent.  They are forced to make parental decisions that the biological parent cannot make on their own.  Thus the creation of the family law court. Question remains what is the balance of the authority of the Court as a representative as the good parent and the parents right to destroy the other parent through social media or other means.  The real life dilemma is very constant in the court setting.  the animosity and vitriol between the parties is thick and dirty.  How does a Judge who has no relation to the parents effectively place boundaries on parents who are essentially acting like children.  and bad ones at that.

The balancing test is really the key to a good Judge v a not so good Judge in my book.  Often Judges don’t do enough and thus you have the quote “he’s the best Judge” just because he or she let you get away with an attack at the other party.  Thus is Freedom of Speech that important in the family law setting whereby restrictions are needed on Facebook or Instagram.  I think they are warranted and Massachusetts got it wrong.  Courts need to step in and stop the chaos before its too late and children grow up to mimic their parents bad behavior.

The Massachusetts court did note that there can be instances in which an order like this can be entered by the Court, but it has to be in situations in which the harm expected from unrestrained speech is grave, and the likelihood that the harm would occur without the prior restraint in place is all but certain. There also must be no alternative, less restrictive means to lessen the harm. Some attorneys have called this ruling a game-changer in Massachusetts.