The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Bartholomew-Woods v. Wilson, decided Friday, Nov. 4:
Thomas M. Wilson and the Campaign for Justice PAC (collectively, "appellants") challenge the issuance of a temporary restraining order ("TRO"), without bond, by Judge Paulette Irons … in favor of Judge Regina Bartholomew-Woods … at 11:00 p.m. on November 3, 2016, "restraining, enjoining, and prohibiting … [PAC] and all persons, firms or companies acting or claiming to act on their behalf, or in concert with them, from publishing, broadcasting, speaking, writing or making any other types of declarations or interest posts, public or private, indicating in any way that Regina Bartholomew Woods or her campaign was 'caught lying' or 'ordered by a judge to stop lying.'" The order set no date for hearing of any preliminary writ of injunction, but did say that the TRO would expire on its own terms November 13, 2016. We take judicial notice that the election at issue is set for November 8, 2016, so, without a hearing date set, the TRO by its own terms operates as a quasi-final judgment.
The appellants base their challenge on the fact that [Louisiana law] specifically prohibits the issuance of a TRO without first providing notice and an opportunity to be heard by the adverse party, and that the petition for TRO was not randomly allotted to a division of court. Because the appellants were not given an opportunity to oppose the entry of the TRO, we vacate the TRO. …
Judge Woods's petition contains a purported certificate of service indicating that a copy of the petition was served on November 3, 2016 on "all known counsel" and/or all know parties by facsimile, electronic mail and/or mailing the same by United States mail," but does not identify who was served, when service was attempted, and/or offers any indication that the request for the TRO would be presented to a judge at any particular time of day or place, or in this case, late at night. …
[O]ur Supreme Court has [also] made clear on multiple occasions that a TRO does not lie to enjoin speech and other forms of communications associated with an election, regardless of the content of that speech. That is to say, La. Const. Art. I, § 7 ["No law shall curtail or restrain the freedom of speech or press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom."] grants a complete safeguard against any prior restraint on protected speech in a campaign.
Thus, as a matter of law, the TRO was improperly requested by Judge Woods, and improperly entered by the trial court not only because inadequate notice to the appellants to give the appellants an opportunity to oppose the entry of the TRO, but also because the trial court did not order the posting of a bond and granted Judge Woods relief in a matter for which she states no cause of action for injunctive relief. Judge Woods's cause of action is solely for defamation as an ordinary, not summary, action and then after service, citation, and answer by the defendant, and trial on the merits.
In sum, the appeal of the appellants is converted to an application for a writ application for supervisory review, the application for writ is granted, and judgment is rendered herein vacating, setting aside and nullifying the TRO entered in this case on November 3, 2016 in favor of Judge Woods and against the appellants.
I think the appellate court was quite right to set aside the injunction, the judge who issued it (Judge Paulette Irons) was quite wrong to issue it, and Judge Regina Bartholomew-Woods was wrong to seek it, given its clear illegality (both substantive and procedural). Some states have indeed allowed injunctions against specific libelous statements, after a full trial on the merits in which the statements have been found libelous. But an injunction against speech that's entered not just before trial but without opportunity for the speaker to be heard—and on top of that, in the midst of an election campaign—is clearly impermissible.