Be Careful What You Post on Facebook

February 15, 2018

The Tennessee Court of Appeals has stated that it is entirely proper, under certain circumstances, to restrict a parent from making disparaging remarks about the other parent online. Gider v. Hubbell (Gider II), 2017 Tenn. App. LEXIS 265, at *13 (Tenn. Ct. App. Apr. 27, 2017).  This is because Tennessee courts have the power to control extrajudicial comments by the litigants, provided that those restrictions are consistent with constitutional standards. Gider v. Hubbell (Gider I), 2017 Tenn. App. LEXIS 211, at *33 (Tenn. Ct. App. Mar. 2017). Thus, while the First Amendment generally allows people to post on Facebook, Tennessee courts can still restrict parents from posting disparaging remarks about the other on social media.  In doing so, courts will balance the danger of physical or emotional harm to the child against the parent’s First Amendment Rights, thereby balancing “whether the activity restrained poses a clear and present danger or a serious and imminent threat to a protected competing interest.”  Id. (internal quotations and citations omitted).  For example, in Gider, a mother was ordered not to post anything on social media relating to her negative thoughts about the father, but she continued to post several negative and unsubstantiated claims about the father’s character.  Id.  The Tennessee Court of Appeals found that the restrictions placed on the mother did not “unduly burden constitutionally protected speech,” and found the mother to be in contempt of court for violating the lower court’s order that restricted the mother from that conduct.  Id.