Cincinnati Family Law & Divorce Blog: May a court restrict one person from speaking negatively on social media about their spouse?

Many people presently use social media to share significant moments of their lives with family and friends. People may also use social media as a platform to vent about difficulties they are facing. Occasionally, this leads to public complaints and personal attacks against spouses or other family members. Not only can such social media posts damage personal and professional reputations, but they can impact a person’s overall well- being. The question is whether the court has any authority to prevent an individual from making hurtful or embarrassing public statements about a family member in light of the First Amendment right to free speech.

Ultimately, there are very few instances in which a court can restrict someone’s right to free speech in the context of custody or divorce. However, a court may be able to punish or prevent a spouse from posting derogatory comments about the other online if it can identify a compelling interest to do so. If the posts fall within an unprotected category of speech such as defamation, obscenity, or speech integral to criminal conduct, a court may intervene. Moreover, courts recognize a compelling interest to protect the physical and psychological well- being of a minor child. Therefore, if a child has access to derogatory posts made by a parent online, then a court may inhibit such posts. The court would likely consider the child’s age and maturity in addition to the severity of the post in determining whether such posts cause significant harm to the child.

Even if a court cannot punish or prevent the derogatory speech from occurring, a parent’s behavior is always studied when custody is contested. The Ohio custody statute lists among many considerations to be used by a court “the ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent.” If one parent continues to make negative comments about the other, a court would likely be skeptical of that parent’s ability to satisfy this objective. Thus, a custody determination in favor of that parent could become less likely.

Unfortunately, harmful statements exchanged during divorce or custody proceedings are not uncommon. However, if the statements are particularly embarrassing or severe, they may justify court intervention. It is important to remember that all cases require their own analysis due to the unique circumstances of each situation.