The Safe Harbor

For Your Legal Needs

Written By: Robert L. Buzzendore, Esquire

Social media provides people with the ability to maintain contact with family, friends and others. Social media also provides a forum for people to publish their personal dislikes about a former significant other or spouse, and it allows one to try his or her case in the court of public opinion.

Attorneys routinely caution clients to refrain from posting comments on social media which the other party could use in court.  Some people post a derogatory, inflammatory or unproductive comment without engaging in serious thought about the post until after it is posted.  Even if the post is deleted, friends may have ‘shared’ it to others, or it may have been re-tweeted or screen captured.  This inappropriate post may find its way into a hearing where it can severely harm a party in his or her court case.

A person’s desire to try or re-try a case in social media may result in a gag order in a custody case when the child may be identified.  In S.B. v. S.S., the Superior Court ruled the trial court was correct in its decision to issue a gag order preventing mother and her attorneys from discussing information that would tend to identify the child.

Mother continually alleged Father had sexually abused their child.  Mother used protection from abuse petitions claiming father sexually abused the child which eventually resulted in the court prohibiting father from seeing the child.  However, after a 23-day custody trial, the court awarded father sole legal and sole physical custody.

Mother disliked the court’s decision, and she and her attorneys announced a press conference which was posted on YouTube and which contained links to enable one to obtain information about the case.  Father filed a petition with the court to have the posts removed. The trial court issued an order directing mother remove the posts and not to post information on social media which would tend to identify the child.

Mother appealed the case to the Pennsylvania Superior Court claiming the first amendment allowed her to post such items.  The Superior Court held the trial court’s decision was correct, and she could not post information that would tend to identify the child.  The Superior Court noted the case “implicates grave issues, not the least of which is Mother’s unsubstantiated but unwavering allegation of sex abuse by Father” and that the child “has suffered emotional trauma because of the strife between the parents.”

The Superior Court noted the “perpetuation and magnification of that strife in the media – particularly the internet – would exacerbate the harm to Child and constitute an egregious invasion of Child’s privacy. The aim of the gag order is, as noted, to promote the best interests of Child by protecting his privacy and concealing his identity.”

This case highlights the need to seriously consider the content of a post before posting it.  It is easy to post in the passion of the moment or to think the social media court of public opinion may assist your case, but it could not only harm your case, it could harm your child and others as well.  It may even result in a gag order in a custody case.  If you have questions about your case or how social media may affect it, please contact Hoffmeyer & Semmelman.