Opening Statements

NBA star’s divorce becomes an unexpected First Amendment contest

Los Angeles Lakers point guard Steve Nash has faced many on-court battles in his more than 17 seasons in the NBA. But when the two-time MVP filed for divorce in 2010, it’s unlikely that he expected the off-court battle would end up testing the bounds of the First Amendment.

According to a July opinion of the Arizona Court of Appeals, the couple’s joint custody agreement included a standard nondisparage clause requiring each other’s communications to be respectful and nondisparaging of the other in regard to their three children. Nash’s former wife was alleged to have made disparaging tweets, prompting the NBA star to ask the court to intervene. A Maricopa County Superior Court judge later issued an order barring the two from also making disparaging comments on social media, noting that “distribution of social media postings cannot be effectively controlled or contained.”

Nash’s ex-wife cried foul, claiming the order violated her First Amendment rights. The Arizona appellate court disagreed, explaining that because Nash “has a highly visible profile as a professional athlete,” such negative comments could “make their way to the children.” The appeals court concluded that the lower court “did not abuse its discretion in entering the order barring both parties from disparaging the other by way of social media.”

This article originally appeared in the December 2013 issue of the ABA Journal with this headline: “Can’t Tweet That: NBA star’s divorce becomes an unexpected First Amendment contest.”

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