Disparagement Clauses

Brien Roche

Disparagement clauses or what may more often be called “non-disparagement clauses” are common in many settlement agreements.  In particular they may become part of divorce settlements.  They are either agreed to by the parties or imposed by the court.  These types of clauses can be very broad.  The thrust of these clauses is to prevent one party from badmouthing the other. 

That badmouthing may be limited to the internet or it may be broader.

Disparagement Clauses- Massachusetts

In the case of Shak v. Shak in Massachusetts, a court ordered no badmouthing.  

Mr. Shak chose to disregard that.  He was a frequent contributor to social media saying bad things about his ex-wife.

The issue eventually got to the Supreme Court of Massachusetts.  At that level the court said that these types of bans are not allowed.  They are an undue restriction on free speech.  Therefore they cannot be ordered by the court.

This ruling is limited to the state of Massachusetts.  

The logic of these clauses in divorce cases is that badmouthing may impact a child’s perception of the other parent.  

In other civil cases, the logic of these types of clauses is that you want the  parties to be able to move on and simply not say bad things about the other.

The ruling of the Massachusetts Supreme Court is not only limited to Massachusetts but it’s limited to domestic cases.  

If the parties were to agree to these terms, that may be another matter.  However there may still be issues as to the validity of these types of agreements because the fact is they do restrict free speech.  If the court gets involved in restricting free speech then that may be a violation of the Constitution.  That is, the Constitution prohibits governmental action to restrict certain rights.  The government, through the court system, in enforcing restrictions on speech may be violating the Constitution.  There is less likely to be such an issue if there is an agreement.

Disparagement Clauses-Ethical Issues

Another issue that may arise is an ethical one.  Attorneys are expected to encourage clients to exercise constitutional rights.  Restricting the constitutional right of free speech is contrary to that.    

In any event, these types of clauses should be looked at.  They may be subject to challenge in non-domestic civil cases.

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