One does not normally associate the First Amendment freedom of speech with divorce cases. But one key free-speech issue that can arise in divorces concerns non-disparagement clauses – provisions in a marital-dissolution agreement or divorce decree that limit what the parties to the marriage can say about each other.
The Indiana Court of Appeals held that such a clause can go too far in its recent decision in Israel v. Israel, a divorce case between husband Jamie Israel and wife Yaima Israel.
The parties’ final divorce decree included a non-disparagement clause prohibiting the parties from making negative remarks about each other in the presence of their child or of “friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone.” The clause applied whether or not such comments were made in the presence of the parties’ child.
Jamie Israel objected to this clause, contending that it amounted to an unconstitutional prior restraint on his speech. A prior restraint on speech refers to any law, policy, or provision that imposes significant pre-publication hurdles on speech.
Non-disparagement clauses serve the interest of protecting children from having to hear their parents denigrate each other. The Indiana Court of Appeals agreed with this proposition, writing: “To the extent the non-disparagement clause at issue in this case prohibits each parent from disparaging the other in Child’s presence, the order furthers the compelling State interest in protecting the best interests of Child and does not violate the First Amendment.”
However, in its May 16, 2022, decision in Israel v. Israel, the court agreed that this non-disparagement clause exceeded the state’s interest in protecting the best interests of the child.
The appeals court explained: “However, we agree with Father that the non-disparagement clause in this case goes far beyond furthering that compelling interest to the extent it prohibits the parents from ‘making disparaging comments’ about the other in the presence of ‘anyone’ even when Child is not present.”
The appeals court concluded: “Thus, the following portion of the first sentence of the non-disparagement clause is an unconstitutional prior restraint and must be stricken: ‘… friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone.’”
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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).