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Trashing Your Ex on Twitter: Harassment or Free Speech?

Free Speech

Railing about an ex to a trusted friend might be therapeutic during divorce, but think twice before blasting your former love online. As our East Brunswick divorce lawyers can explain, doing so might generate more bad blood with your ex and family law courts frown on it – especially when kids are involved.

Over the last several years in cases across the country, questions have arisen about whether online rants about your ex are protected free speech or actionable violations of anti-disparagement orders or even criminal harassment laws.

Many child custody/parenting time orders contain non-disparagement clauses that prohibit parents from trash-talking each other within earshot of the kids. Doing so – even online – can be considered a form of custodial interference. There have even been cases where the person posting was charged with contempt of court or criminal harassment. Defendants have argued – with mixed results – that such orders are unconstitutional and violate free speech laws.

Recently a California judge tossed a criminal charge against a woman who allegedly violated a divorce court order restraining her from publishing disparaging comments about her husband online. She has alleged he committed domestic violence. The Mercury News reported that the woman’s attorney argued in criminal court that the underlying divorce court restraining order failed to draw the distinction between harassing speech directed at someone and constitutionally-protected speech made about someone. Publicly critical speech is protected, and recourse can include a defamation lawsuit – but not a criminal charge, her attorney argued. The judge agreed the divorce court order was unconstitutional.

In another recent case, the Massachusetts Supreme Judicial Court issued a landmark ruling finding non-disparagement orders unconstitutional. The case stemmed from an earlier order barring an ex-husband from posting on social media about his “evil liar” ex-wife. As one justice wrote

, “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.

Examples of cases like this go back to at least 2008, when social media and blogging were really starting to take off. That year, as The New York Times reported, a family court in Vermont considered a case wherein a family court ordered a man to stop blogging about his crumbing marriage. His ex-wife called the posts inaccurate, derogatory, defamatory, inappropriate and constituting as harassment. The court agreed.

In another older case, the ex-wife of former wife of NBA player Steve Nash was accused of making disparaging remarks about him on Twitter. Nash sought the court’s intervention, but his ex said her statements were protected by the First Amendment. The judge sided with Nash, barring parties from disparaging the other on their respective social media accounts. This ruling, later affirmed by the Arizona Court of Appeals, reportedly took into account that Nash was a public figure and therefore comments made on one’s social media were likely to make it back to their children. Earlier this year, in an extension of that order, Nash himself was admonished to stop disparaging his ex on social media.

In 2017, the New Jersey Supreme Court examined the limits of the state’s broad harassment law, N.J.S.A. 2C:33-4(c) and its exception to the First Amendment. The law explains harassment as engaging in a course of alarming conduct or of repeatedly committing acts with the purpose to alarm or seriously annoy someone else, putting them in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. The court held that the law is often interpreted and applied in ways that infringe upon the free speech protections outlined in both the federal and state Constitutions. The court held that it was not the intent of the law to shield against common stresses, shocks and insults resulting from exposure to remarks that are crude, offensive, teasing or rumors.

That doesn’t necessarily mean you have free reign to malign your ex online.

As New Jersey divorce attorneys, we find it’s generally the best policy to avoid negatively posting about your ex, custody agreements, child support, divorce or any pending legal matter. Understand that online forums like social media are inherently public, even when strict privacy controls are in place. Beyond being accused of defamation

Not only will it be a source of tension that can make ongoing negotiations more difficult, online forums like social media are inherently public, even when they are set with strict privacy controls.

These concerns should be discussed with an experienced divorce lawyer.

Contact us at (732) 810-0034 or email us through our website.