South Carolina Disparagement Orders Upheld: Clark v. Clark 2025s

South Carolina Disparagement Orders Upheld: Clark v. Clark 2025 Clark v. Clark 2025 Analysis
A Critical Analysis of South Carolina’s Newest Opinion on Disparagement Provisions

On March 5, 2025, the South Carolina Court of Appeals issued a significant decision in Clark v. Clark, Op. 6103, addressing the intersection of First Amendment free speech rights and family court orders designed to protect children from parental disparagement. This case provides crucial guidance for family law practitioners and parents alike regarding the permissible scope of disparagement provisions in divorce orders.

The Facts
After a contentious divorce in 2015, the parties were awarded joint custody of their minor child with equal parenting time. The Final Divorce Order included what is commonly known as a ‘disparagement provision,’ which stated:

“All parties are restrained against the use of profanity or making any derogatory comments about or toward the other party, or allowing anyone else to do so in front of the child, in any manner whereby the child might learn of the same.”

In April 2019, four years after the divorce, the mother published a book depicting the circumstances of the parties’ marriage and divorce. The book’s cover featured a photograph of the mother with a black eye drawn with makeup, and the contents included detailed allegations of physical, mental, emotional, and sexual abuse at the hands of the father. The mother marketed the book nationally through major retailers, promoted it on her personal website (which also featured photographs of the minor child), and used the book in her work as an ambassador for a domestic abuse nonprofit.

The father filed a contempt complaint, alleging that the mother’s publication and promotion of the book violated the disparagement provision. At the contempt hearing, the mother admitted to writing that the father was ‘full of bullshit and lies,’ mentally ill, and a ‘narcissistic, irrational, manipulative liar.’ She also confirmed writing a poem entitled ‘Little Dick Mother’ that was ‘written out of anger’ and compared the father unfavorably. However, the mother testified she had taken precautions to ensure the child would not have access to the book.

The Family Court’s Decision
The family court found the mother in both criminal and civil contempt, holding that the book violated multiple provisions of the prior orders. The court ordered the mother to:
• Cease and desist from selling and disseminating the book in any manner whatsoever
• Serve a suspended jail sentence (contingent on removing the book from the market)
• Pay fines totaling $3,500
• Pay attorney’s fees and costs of $10,000

Significantly, the family court also amended the disparagement provision to create what might be termed a ‘privacy exception,’ revising the language to prohibit disparaging comments “except where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.”

The Court of Appeals’ Analysis
The Contempt Finding
The Court of Appeals affirmed the contempt finding, rejecting the mother’s argument that there was no evidence the minor child had actually been exposed to the book. The court held that the child’s actual knowledge of the book was not necessary to establish contempt. Instead, the court found ample evidence that the mother had violated the prohibition against ‘making derogatory comments about the other in any manner whereby the child might learn of same.’

The court cited several factors supporting the contempt finding:
• Both the mother and minor child were pictured on the mother’s website promoting their respective books
• The mother of the father’s older daughter had a copy of the book and spoke to the minor child regularly
• The public promotion and sale of the book online meant the sophisticated eleven-year-old child could easily find it by searching her own name on the Internet

The First Amendment Challenge
The mother raised a First Amendment defense, arguing that the disparagement provision was an unconstitutional prior restraint on her free speech that was not narrowly tailored to meet a compelling state interest. This constitutional challenge was raised for the first time at trial, years after the original divorce order was entered.

The Court of Appeals rejected this argument, holding that the best interests of the child constitute a sufficiently compelling state interest to warrant restricting parental speech. The court reasoned:

“We believe it would be inconsistent for the family court to find that parents have a First Amendment right to make disparaging comments about the other parent to the child, or in a manner in which the child might learn of same, when it would not be in the child’s best interest.”

The court emphasized that South Carolina Code Section 63-15-240(B) explicitly requires family courts to consider parental behavior, including speech, when determining custody. Specifically, subsection (8) mandates consideration of ‘any effort by one parent to disparage the other in front of the child’ as a factor in awarding custody.

Narrow Tailoring and the Privacy Exception
Addressing the narrow tailoring requirement, the Court of Appeals found the amended disparagement provision satisfied constitutional scrutiny. The key feature was the ‘privacy exception’ added by the family court, which allows parents to make disparaging comments ‘where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.’

This privacy exception creates protected forums for disparaging comments, such as private therapy sessions, attorney-client communications, or conversations with close friends in truly private settings. The court held this exception made the provision the ‘least restrictive means’ to protect the child’s best interests.

Distinguishing Other Jurisdictions
The court distinguished the Massachusetts case of Shak v. Shak, 144 N.E.3d 274 (Mass. 2020), where the Massachusetts Supreme Judicial Court struck down an order preventing a parent from posting about his child on social media. The South Carolina court noted that the child in Shak was a toddler ‘too young to be able either to read or to access social media,’ while the child in Clark was a ‘sophisticated eleven-year-old’ who could easily access the Internet and Google her own name.

The court also cited the Kentucky case Wedding v. Harmon, 492 S.W.3d 150 (Ky. Ct. App. 2016), which upheld restrictions on a father’s mass emails to the community about the parties’ dissolution and co-parenting disputes. The Court of Appeals found, like the Kentucky court, that the contents of the book were ‘solely aimed at disparaging, annoying, and ruining the reputation of Father.’

Practical Implications for Family Law Practitioners
This decision provides important guidance for South Carolina family law practitioners in several key areas:

1. Drafting Disparagement Provisions
The Court of Appeals has endorsed disparagement provisions that prohibit derogatory comments ‘in any manner whereby the child might learn of same,’ with a privacy exception. Practitioners should consider including language such as: ‘except where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.’ This privacy exception may help the provision withstand constitutional scrutiny while still protecting the child’s emotional wellbeing.

2. The ‘Might Learn Of’ Standard
The court made clear that actual exposure to disparaging content is not required for a contempt finding. Instead, the focus is on whether the child ‘might learn of’ the disparaging statements. In the Internet age, with children having increasing access to online content and the ability to search for information about their parents, this standard is expansive. Publicly available content, such as books, social media posts, or websites, will likely be found to meet this standard, particularly for school-age children.

3. Constitutional Challenges and Timing
The court noted that the mother never appealed the constitutionality of the disparagement provision when it was first entered in 2015, and only raised the First Amendment defense at the contempt hearing in 2021 after violating the provision. This suggests that parties who wish to challenge such provisions on constitutional grounds should do so promptly through the appropriate appellate process, rather than waiting until a contempt proceeding. The court also noted that the mother did not attempt to defend her actions by arguing she was unaware of the provision or that she had a legitimate reason to violate it; instead, she simply raised a constitutional defense against the provision as a whole only after willfully violating it.

4. The Best Interests Standard as Compelling Interest
The Court of Appeals firmly established that the best interests of the child constitute a compelling state interest sufficient to justify content-based restrictions on parental speech. This holding aligns South Carolina with other jurisdictions that have recognized the state’s parens patriae interest in protecting children from parental conflict. Practitioners can rely on this precedent when defending disparagement provisions against constitutional challenges.

5. Books, Publications, and Public Platforms
This case makes clear that publishing a book or other written work about one’s divorce and ex-spouse can constitute a violation of a disparagement provision, even if the author claims to have taken steps to prevent the child from accessing it. The public nature of the publication, combined with the ease of Internet searching and the availability of the content through major retailers, makes it virtually impossible to ensure a child will not learn of the disparaging content.

6. Domestic Violence Claims and Truthfulness
It is noteworthy that although the mother testified the allegations in her book were truthful and accurate descriptions of abuse, the family court in the original divorce proceeding had found that neither party met the burden of proof for a fault-based divorce on the ground of physical abuse. This raises an important consideration: disparagement provisions may restrict even truthful statements if such statements are made in a manner whereby the child might learn of them. The restriction is based on protecting the child’s emotional wellbeing, not on determining the truth or falsity of the underlying allegations.

7. Attorney’s Fees and Costs
The Court of Appeals affirmed the award of substantial attorney’s fees to the father, including $10,000 in the initial contempt order and an additional $7,433.75 for briefing the constitutional issue and defending the motion to reconsider. Practitioners should advise clients that violating disparagement provisions can result in significant financial consequences beyond fines and potential jail time.

Advising Clients
For clients going through divorce or custody proceedings, this case underscores several important points:
• Disparagement provisions are enforceable and have real consequences. Publishing a book, creating a website, posting on social media, or otherwise making public statements about your ex-spouse can result in contempt findings, jail time, fines, and attorney’s fee awards.
• You do not need to prove your child actually saw or read the disparaging content. The standard is whether the child ‘might learn of’ the statements, which is easily met for any publicly available content.
• The privacy exception allows you to discuss your feelings and experiences in truly private settings, such as therapy, with your attorney, or with close friends where there is a reasonable expectation your child will not learn of the conversation.
• If you believe a disparagement provision in your case is unconstitutional, you should challenge it through the proper appellate process immediately, not by violating it and raising a constitutional defense in a contempt proceeding.
• Working with domestic violence advocacy organizations or writing about your experiences may be important to you, but you must ensure such work does not violate existing court orders. Consult with your attorney before publishing any content related to your divorce or your ex-spouse.

Conclusion
Clark v. Clark represents a significant development in South Carolina family law, clearly establishing that disparagement provisions with properly crafted privacy exceptions can withstand First Amendment challenges. The decision balances parents’ free speech rights with the compelling state interest in protecting children from exposure to parental conflict and disparagement. For practitioners, the case provides valuable guidance on drafting enforceable disparagement provisions and counseling clients about the serious consequences of violating such provisions in the digital age.

The opinion makes clear that while parents may have strong feelings about their former spouses and may wish to share their stories, once a family court has entered an order designed to protect a child’s emotional wellbeing, those speech interests must yield to the child’s best interests. The privacy exception ensures parents retain forums for necessary communications while preventing public disparagement that could harm the child.

Full case citation: Clark v. Clark, Op. 6103 (S.C. Ct. App. March 5, 2025), Appellate Case No. 2021-001169

This blog post is for informational purposes only and does not constitute legal advice. The rules and procedures described may be subject to interpretation by individual courts and judges. Always consult with a qualified attorney regarding your specific situation.
Klok Law Firm LLC
Serving clients throughout South Carolina in family law matters

By Suzanne Klok|2025-11-12T16:43:30+00:00April 5th, 2025|Family Law, Rule to Show Cause|Comments Off on South Carolina Disparagement Orders Upheld: Clark v. Clark 2025s

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South Carolina Disparagement Orders Upheld: Clark v. Clark 2025 Clark v. Clark 2025 Analysis
A Critical Analysis of South Carolina’s Newest Opinion on Disparagement Provisions

On March 5, 2025, the South Carolina Court of Appeals issued a significant decision in Clark v. Clark, Op. 6103, addressing the intersection of First Amendment free speech rights and family court orders designed to protect children from parental disparagement. This case provides crucial guidance for family law practitioners and parents alike regarding the permissible scope of disparagement provisions in divorce orders.

The Facts
After a contentious divorce in 2015, the parties were awarded joint custody of their minor child with equal parenting time. The Final Divorce Order included what is commonly known as a ‘disparagement provision,’ which stated:

“All parties are restrained against the use of profanity or making any derogatory comments about or toward the other party, or allowing anyone else to do so in front of the child, in any manner whereby the child might learn of the same.”

In April 2019, four years after the divorce, the mother published a book depicting the circumstances of the parties’ marriage and divorce. The book’s cover featured a photograph of the mother with a black eye drawn with makeup, and the contents included detailed allegations of physical, mental, emotional, and sexual abuse at the hands of the father. The mother marketed the book nationally through major retailers, promoted it on her personal website (which also featured photographs of the minor child), and used the book in her work as an ambassador for a domestic abuse nonprofit.

The father filed a contempt complaint, alleging that the mother’s publication and promotion of the book violated the disparagement provision. At the contempt hearing, the mother admitted to writing that the father was ‘full of bullshit and lies,’ mentally ill, and a ‘narcissistic, irrational, manipulative liar.’ She also confirmed writing a poem entitled ‘Little Dick Mother’ that was ‘written out of anger’ and compared the father unfavorably. However, the mother testified she had taken precautions to ensure the child would not have access to the book.

The Family Court’s Decision
The family court found the mother in both criminal and civil contempt, holding that the book violated multiple provisions of the prior orders. The court ordered the mother to:
• Cease and desist from selling and disseminating the book in any manner whatsoever
• Serve a suspended jail sentence (contingent on removing the book from the market)
• Pay fines totaling $3,500
• Pay attorney’s fees and costs of $10,000

Significantly, the family court also amended the disparagement provision to create what might be termed a ‘privacy exception,’ revising the language to prohibit disparaging comments “except where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.”

The Court of Appeals’ Analysis
The Contempt Finding
The Court of Appeals affirmed the contempt finding, rejecting the mother’s argument that there was no evidence the minor child had actually been exposed to the book. The court held that the child’s actual knowledge of the book was not necessary to establish contempt. Instead, the court found ample evidence that the mother had violated the prohibition against ‘making derogatory comments about the other in any manner whereby the child might learn of same.’

The court cited several factors supporting the contempt finding:
• Both the mother and minor child were pictured on the mother’s website promoting their respective books
• The mother of the father’s older daughter had a copy of the book and spoke to the minor child regularly
• The public promotion and sale of the book online meant the sophisticated eleven-year-old child could easily find it by searching her own name on the Internet

The First Amendment Challenge
The mother raised a First Amendment defense, arguing that the disparagement provision was an unconstitutional prior restraint on her free speech that was not narrowly tailored to meet a compelling state interest. This constitutional challenge was raised for the first time at trial, years after the original divorce order was entered.

The Court of Appeals rejected this argument, holding that the best interests of the child constitute a sufficiently compelling state interest to warrant restricting parental speech. The court reasoned:

“We believe it would be inconsistent for the family court to find that parents have a First Amendment right to make disparaging comments about the other parent to the child, or in a manner in which the child might learn of same, when it would not be in the child’s best interest.”

The court emphasized that South Carolina Code Section 63-15-240(B) explicitly requires family courts to consider parental behavior, including speech, when determining custody. Specifically, subsection (8) mandates consideration of ‘any effort by one parent to disparage the other in front of the child’ as a factor in awarding custody.

Narrow Tailoring and the Privacy Exception
Addressing the narrow tailoring requirement, the Court of Appeals found the amended disparagement provision satisfied constitutional scrutiny. The key feature was the ‘privacy exception’ added by the family court, which allows parents to make disparaging comments ‘where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.’

This privacy exception creates protected forums for disparaging comments, such as private therapy sessions, attorney-client communications, or conversations with close friends in truly private settings. The court held this exception made the provision the ‘least restrictive means’ to protect the child’s best interests.

Distinguishing Other Jurisdictions
The court distinguished the Massachusetts case of Shak v. Shak, 144 N.E.3d 274 (Mass. 2020), where the Massachusetts Supreme Judicial Court struck down an order preventing a parent from posting about his child on social media. The South Carolina court noted that the child in Shak was a toddler ‘too young to be able either to read or to access social media,’ while the child in Clark was a ‘sophisticated eleven-year-old’ who could easily access the Internet and Google her own name.

The court also cited the Kentucky case Wedding v. Harmon, 492 S.W.3d 150 (Ky. Ct. App. 2016), which upheld restrictions on a father’s mass emails to the community about the parties’ dissolution and co-parenting disputes. The Court of Appeals found, like the Kentucky court, that the contents of the book were ‘solely aimed at disparaging, annoying, and ruining the reputation of Father.’

Practical Implications for Family Law Practitioners
This decision provides important guidance for South Carolina family law practitioners in several key areas:

1. Drafting Disparagement Provisions
The Court of Appeals has endorsed disparagement provisions that prohibit derogatory comments ‘in any manner whereby the child might learn of same,’ with a privacy exception. Practitioners should consider including language such as: ‘except where there exists a reasonable expectation of privacy whereby the child reasonably would not, could not, or should not learn of the same.’ This privacy exception may help the provision withstand constitutional scrutiny while still protecting the child’s emotional wellbeing.

2. The ‘Might Learn Of’ Standard
The court made clear that actual exposure to disparaging content is not required for a contempt finding. Instead, the focus is on whether the child ‘might learn of’ the disparaging statements. In the Internet age, with children having increasing access to online content and the ability to search for information about their parents, this standard is expansive. Publicly available content, such as books, social media posts, or websites, will likely be found to meet this standard, particularly for school-age children.

3. Constitutional Challenges and Timing
The court noted that the mother never appealed the constitutionality of the disparagement provision when it was first entered in 2015, and only raised the First Amendment defense at the contempt hearing in 2021 after violating the provision. This suggests that parties who wish to challenge such provisions on constitutional grounds should do so promptly through the appropriate appellate process, rather than waiting until a contempt proceeding. The court also noted that the mother did not attempt to defend her actions by arguing she was unaware of the provision or that she had a legitimate reason to violate it; instead, she simply raised a constitutional defense against the provision as a whole only after willfully violating it.

4. The Best Interests Standard as Compelling Interest
The Court of Appeals firmly established that the best interests of the child constitute a compelling state interest sufficient to justify content-based restrictions on parental speech. This holding aligns South Carolina with other jurisdictions that have recognized the state’s parens patriae interest in protecting children from parental conflict. Practitioners can rely on this precedent when defending disparagement provisions against constitutional challenges.

5. Books, Publications, and Public Platforms
This case makes clear that publishing a book or other written work about one’s divorce and ex-spouse can constitute a violation of a disparagement provision, even if the author claims to have taken steps to prevent the child from accessing it. The public nature of the publication, combined with the ease of Internet searching and the availability of the content through major retailers, makes it virtually impossible to ensure a child will not learn of the disparaging content.

6. Domestic Violence Claims and Truthfulness
It is noteworthy that although the mother testified the allegations in her book were truthful and accurate descriptions of abuse, the family court in the original divorce proceeding had found that neither party met the burden of proof for a fault-based divorce on the ground of physical abuse. This raises an important consideration: disparagement provisions may restrict even truthful statements if such statements are made in a manner whereby the child might learn of them. The restriction is based on protecting the child’s emotional wellbeing, not on determining the truth or falsity of the underlying allegations.

7. Attorney’s Fees and Costs
The Court of Appeals affirmed the award of substantial attorney’s fees to the father, including $10,000 in the initial contempt order and an additional $7,433.75 for briefing the constitutional issue and defending the motion to reconsider. Practitioners should advise clients that violating disparagement provisions can result in significant financial consequences beyond fines and potential jail time.

Advising Clients
For clients going through divorce or custody proceedings, this case underscores several important points:
• Disparagement provisions are enforceable and have real consequences. Publishing a book, creating a website, posting on social media, or otherwise making public statements about your ex-spouse can result in contempt findings, jail time, fines, and attorney’s fee awards.
• You do not need to prove your child actually saw or read the disparaging content. The standard is whether the child ‘might learn of’ the statements, which is easily met for any publicly available content.
• The privacy exception allows you to discuss your feelings and experiences in truly private settings, such as therapy, with your attorney, or with close friends where there is a reasonable expectation your child will not learn of the conversation.
• If you believe a disparagement provision in your case is unconstitutional, you should challenge it through the proper appellate process immediately, not by violating it and raising a constitutional defense in a contempt proceeding.
• Working with domestic violence advocacy organizations or writing about your experiences may be important to you, but you must ensure such work does not violate existing court orders. Consult with your attorney before publishing any content related to your divorce or your ex-spouse.

Conclusion
Clark v. Clark represents a significant development in South Carolina family law, clearly establishing that disparagement provisions with properly crafted privacy exceptions can withstand First Amendment challenges. The decision balances parents’ free speech rights with the compelling state interest in protecting children from exposure to parental conflict and disparagement. For practitioners, the case provides valuable guidance on drafting enforceable disparagement provisions and counseling clients about the serious consequences of violating such provisions in the digital age.

The opinion makes clear that while parents may have strong feelings about their former spouses and may wish to share their stories, once a family court has entered an order designed to protect a child’s emotional wellbeing, those speech interests must yield to the child’s best interests. The privacy exception ensures parents retain forums for necessary communications while preventing public disparagement that could harm the child.

Full case citation: Clark v. Clark, Op. 6103 (S.C. Ct. App. March 5, 2025), Appellate Case No. 2021-001169

This blog post is for informational purposes only and does not constitute legal advice. The rules and procedures described may be subject to interpretation by individual courts and judges. Always consult with a qualified attorney regarding your specific situation.
Klok Law Firm LLC
Serving clients throughout South Carolina in family law matters