It’s Complicated: GA Court Rejects Divorcing Couple’s Facebook Battle

Monday, April 8, 2013, by Lauren Powers
A Georgia Court of Appeals has upheld a Monroe County Superior Court judge’s prohibition of a divorcing couple’s aggressive verbal attacks on each other over Facebook.  The husband, James Lacy, claims that this prohibition violates his First Amendment right of free speech, particularly because he has made serious accusations regarding potential ex parte discussions between his wife and a judge.  Specifically, Lacy is distraught over his wife’s statement regarding personal ties between the judge and her father, which appears to be a valid concern given that judge in question has been investigated and has since resigned for using his office for personal gain.

Though Judge McFadden’s opinion in this case will certainly affect many divorcing couples given the current widespread use of social networking sites like Facebook, more importantly it indicates that judges are beginning to take steps to incorporate popular new technologies into the approaches they take to the cases before them.

While this legal situation appears petty and relatively unimportant, Judge Christopher J. McFadden’s opinion actually provides significant guidance on how divorcing couples should handle themselves in this new age of technology.  In fact, Judge McFadden upheld the trial court’s ruling that greatly restricted the use of social networking sites like Facebook in the proceedings, particularly in heated situations involving divorce and child custody.  Judge McFadden based his opinion on a Georgia Supreme Court ruling that “a trial court can require the parties in a divorce proceeding ‘to refrain from making derogatory remarks about the other before the children.'”  Furthermore, Judge McFadden noted that in the past parties have been held in contempt for communicating with each other over the phone or at the workplace after a restriction to the contrary.  Therefore, this reasoning easily applies to situations involving Facebook communications.
Though Judge McFadden’s opinion in this case will certainly affect many divorcing couples given the current widespread use of social networking sites like Facebook, more importantly it indicates that judges are beginning to take steps to incorporate popular new technologies into the approaches they take to the cases before them.  Judges have increasingly been required to learn about emerging technologies outside of patent cases in order to effectively make their decisions, particularly in criminal cases in which the police utilize advanced technologies to make arrests.
This divorce proceeding, however, reminds both attorneys and judges of the pervasiveness of technology in everyday life and of the importance of maintaining a working knowledge of these relevant technologies, particularly for the older members of the profession.  As technologies become increasingly pervasive in the courts, younger attorneys will gradually force older attorneys out of their positions because many, but not all, younger attorneys will find it much easier to quickly adapt to the application of new technologies in the legal system.  Similarly, it follows that the next generation of judges will likely originate from a younger candidate pool.  Younger candidates for judicial office in the future will likely be selected based on their technological aptitude, thereby boxing out older judicial candidates who may have been working their entire careers for a judicial appointment.  Therefore, Judge McFadden’s consideration of Facebook’s involvement in a divorce is encouraging in that it indicates that judges are learning about emerging technologies and incorporating them into their opinions rather than shying away from them, and other judges who fear being forced out of their positions by younger, tech savvy individuals need only embrace the technology to maintain the status quo of the judicial appointment system.