Free Speech

Rhode Island Court Issues Temporary Restraining Order Requiring Blogger to Take Down All Posts About a Person

According to the ACLU of Rhode Island, which is representing the blogger, the order was issued without any adversarial hearing at which the blogger could appear.

|The Volokh Conspiracy |

I came across this case (the plaintiff's lawyer, by the way, is a Rhode Island state legislator), and then saw that the ACLU of Rhode Island has a good summary of it already:

In a case raising important First Amendment issues for the Internet age, the ACLU of Rhode Island has taken on the defense of a Massachusetts blogger who was ordered by a Rhode Island Superior Court judge to "immediately remove" from his website "any and all posts, blogs, and comments" regarding a person who sued him for libel [warning: health-threatening overuse of large-and-small-caps -EV], without even hearing from the internet publisher.  Considering the court order a classic example of censorship, ACLU of Rhode Island cooperating attorney Lynette Labinger has removed the case to federal court for adjudication.

The injunction also bars the defendant from, among other things, "cyber stalking, cyber bullying, … annoying, … or otherwise interfering with plaintiff," which is unconstitutionally vague, I think, as well as unconstitutionally overbroad.

The ACLU goes on:

Aidan Kearney, whose business is based in Worcester, Massachusetts, runs a website and blog on www.turtleboysports.com. In February, he re-posted a video and numerous Facebook comments originally posted to the web by Hopkinton resident Kathryn Narcisi. He did so after Narcisi's Facebook postings requested media coverage of an incident at Kent County Hospital, where she claimed the hospital refused to treat her for autoimmune disease.

Kearney's reposts were accompanied by skeptical and mocking headlines, commentary and captions, including "American Idol Outtakes" Narcisi had posted of her singing. Kearney posted a blog titled, "Failure Swift Gets Kicked Out of Warwick's Kent Hospital for Faking Sickness, Posts Facebook Video Whining in Lobby, Tries to Get National News Attention Despite Long History of GoFundMes," which generated a number of posted comments, also often mocking Narcisi.

Last month, Narcisi filed a libel lawsuit claiming the blog post "defamed and discredited" her, and that it led to her receiving unwanted messages "from followers of the defendant's website." At a court hearing held before Kearney was ever notified, RI Superior Court Judge Susan McGuirl issued a temporary restraining order requiring the removal of any and all references to Narcisi from Kearney's website and all other "associated" sites.

After learning about the order and that it was scheduled for another hearing to consider whether it should be extended indefinitely, Kearney contacted the ACLU, which agreed to provide legal assistance to address these significant First Amendment issues.  ACLU of RI cooperating attorney Lynette Labinger removed the case to federal court on Tuesday, and will be filing a formal motion to dismiss the lawsuit next week.

Kearney describes his website as dealing with "investigative journalism, news, and exposing inappropriate public behavior in the most entertaining way possible." In a blog he posted after the suit was filed, Kearney wrote: "What planet am I on right now? The State of Rhode Island is allowing this woman to go forward with a lawsuit against me for damages  due to 'injury to her feelings,' because people not associated with Turtleboy contacted her without us asking them to do so. Madness."

Kearney said today: "A judge has no right to tell an independent media outlet to remove factually based content and commentary from a website, particularly since this website is my livelihood. As a former history teacher, I understand why the Founding Fathers insisted that free speech be protected in the Bill of Rights, particularly speech that some may find offensive. Protecting agreeable speech is easy, but our freedoms are put to the test when some find it to be controversial."

ACLU of RI cooperating attorney Labinger stated: "The internet can be full of intemperate and uncomfortable discussions.  When they are about you, the natural reaction is to want to make them go away.  But we must never lose sight of the important First Amendment rights of free speech and free press that will be lost if we or our courts give in to those reactions.  To quote a 50-year old U.S. Supreme Court decision: 'It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'"

ACLU executive director Steven Brown added: "The court's order requiring the removal of items from a website is a classic prior restraint that the First Amendment simply does not countenance. In order to avoid a chilling effect on Internet speech, we are hopeful that this suit will be dismissed promptly."

In this case, I agree entirely with the ACLU. Though I think that injunctions against material proved at trial to be libelous can be constitutionally permissible, temporary restraining orders, entered before any such trial on the merits—and, in this case, apparently entered without even a preliminary adversary hearing—are unconstitutional. And an order that requires the removal of all mentions of a plaintiff, rather than just libelous statements, is even more clearly unconstitutional.

I expect the federal court, to which the case has been removed (because the plaintiff and defendant are citizens of different states), to promptly vacate the injunction; as I wrote in my forthcoming Penn article on anti-libel injunctions,

Such … preliminary injunctions have been sharply condemned by most appellate courts that have seriously considered them—even by courts that authorize … permanent injunctions—because those injunctions suppress speech without a finding on the merits that the speech is unprotected. In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,

"In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. '… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted….'"

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

"[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values."

The Nebraska Supreme Court took the same view:

"A jury has yet to determine whether Sullivan's allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan's speech, constitute unconstitutional prior restraints in derogation of Sullivan's right to speak."

Or in the words of the Alaska Supreme Court, "Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected." And while the court went on to say that, "A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected," the injunction that it was authorizing this way isn't really so preliminary.[1] The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.[2]

More generally, the Supreme Court likewise held in Vance v. Universal Amusements, Inc.[3] that alleged obscenity cannot be enjoined simply based on a pretrial showing that the speech was likely to be obscene—at least absent the procedural protections offered by Freedman v. Maryland—even though it could be enjoined after a finding of obscenity on the merits. Likewise, in Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, the Court upheld an injunction against an illegal advertisement only "because no interim relief was granted," so that "the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected."

The problem with [such a] preliminary injunction, then, is that it doesn't just lead to punishment of speech that a jury has found libelous beyond a reasonable doubt (or even by a preponderance of the evidence). It leads to punishment of speech that a judge has found will likely be shown to be libelous, and this finding may have been based on a highly abbreviated (and sometimes even ex parte) adjudicative process.

[1] See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued "after only the most preliminary of determinations by the trial court"); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted "before an adequate determination that it is unprotected by the First Amendment"); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) ("We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although 'it has never been held that all injunctions against publication are impermissible,' such an injunction has been upheld only when it 'was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'"); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) ("[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected."); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) ("A preliminary injunction is a prior restraint."); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not "'entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'" (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only "after a final adjudication on the merits that the speech is unprotected").

[2] But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and "[t]he First Amendment does not protect fraud"); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of "primarily private concern").

[3] 445 U.S. 308 (1980); see also Blount v. Rizzi, 400 U.S. 410, 420 (1971) (holding that a determination by a judge of "probable cause" that speech is obscene is insufficient to justify a restriction); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 240 (1990) (reaffirming this principle as to "prior restraint[s] in advance of a final judicial determination on the merits"); State v. Book-Cellar, Inc., 679 P.2d 548, 553-55 (Ariz. Ct. App. 1984) (upholding a statute that authorized preliminary injunctions against the distribution of obscenity by requiring "that a final judicial determination [be] made by the end of 60 days from the issuance of a preliminary injunction," a safeguard compelled by Freedman v. Maryland, 380 U.S. 51 (1965)); City of Cadillac v. Cadillac News & Video, Inc., 562 N.W.2d 267, 270 (Mich. Ct. App. 1996) (overturning down a preliminary injunction of obscenity on the grounds that the injunction would permit "removal of allegedly obscene materials from circulation before a judicial determination whether the material is obscene, with none of the safeguards" established in Freedman v. Maryland, 380 U.S. 51, 59 (1965)).

Finally, note that the First Circuit has held that even permanent anti-libel injunctions barring the repetition of statements found to be libelous at trial are unconstitutional (see Sindi v. El-Moslimany).

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  1. How cool is that? If you know the right people you can run roughshod over everyone. But just in Rhode Island of course. It couldn’t happen anywhere else in America, right.

    1. Half of the people involved in legal actions in Rhode Island are represented by a state legislator.

  2. On this occasion I likewise agree with the ACLU and, thus, with Prof. Volokh. The ease of entry into the public realm of debate has fooled many into thinking that they’re immune from criticism once there, and defamation law ought never be used to suppress it through prior restraints.

    @ Mr. Jwpvysig, Jr., who wrote:

    It couldn’t happen anywhere else in America, right.

    Your tongue is firmly visible in cheek, but taking your question at face value: I’m only licensed in Texas, but to the best of my knowledge, every state offers some sort of procedure for seeking, ex parte, emergency injunctive relief, at least in those situations in which the giving of notice of the hearing can be demonstrated to increase the imminent risk of irreparable injury (e.g., because the defendant is particularly likely to misbehave by resorting to physical violence or destruction of evidence). The paradigmatic example is the battered woman seeking ex parte relief prohibiting her husband from returning home or approaching her until a full hearing, with notice to both sides, can be held.

    Which is to say: Yes, this could happen anywhere, and in most places — Prof. Volokh probably has an indexed list — it already has, at least once, but often with dismaying frequency.

  3. The most common explanation, I think, is a judge who’s not sufficiently familiar with First Amendment and defamation law, who’s misled as to the facts, or often the nature and scope of his authority, by the one lawyer who’s present. Notice and adversary representation are the tonic for this.

    1. The most common explanation is that the one party’s lawyer who showed up hands the judge an order to sign, that happens to include their client’s entire wishlist of conditions.

      1. So, is the Judge incompetent, corrupt, or both?

        1. And is extreme incompetence because you’re a surrogate for the elected official, posted to you’re office specifically because you’re their toady, corrupt in itself?

        2. This is Rhode Island we’re talking about.

        3. “is the Judge incompetent, corrupt, or both?”

          Neither, just overworked. They have like an hour a day to entertain all the motions for all the trials that are coming up. So, normally they rule, then the lawyers decide who’s going to draft the order, and then the judge signs it. If you didn’t show up to the hearing, then the other guy’s lawyer does the drafting, with nobody looking over his shoulder.
          It’s a really, really bad idea not to show up for the hearing(s).

          1. Sorry, but they have a job to do (administer justice?) and whining about how overworked they are doesn’t impress this taxpayer…especially when they trample on peoples civil rights (kind of the most important part of that justice?).

            1. They have a job to do, and insufficient time or resources.
              Again, it’s a really, really bad idea not to show up for hearings. More specifically, it’s a really, really bad idea not to show up for hearings that may affect your civil rights.

              1. In this case there was no notice provided of the hearing:

                At a court hearing held before Kearney was ever notified

                so I’m not sure how he could have shown up

              2. Kinda hard to show up for a hearing when you have never been notified as occurred in this case.

                1. “Kinda hard to show up for a hearing when you have never been notified as occurred in this case.”

                  As one of the parties alleges occurred in this case.

                  1. The complaint was filed on May 13. The hearing was held on the same day. There isn’t even a full case number on the order signed by the judge.
                    I believe the ACLU when they say that no notice was given by the plaintiff in advance of the hearing.

              3. Yeah, I’m not buying the “overworked” or “insufficient time” excuses, either. The judge wouldn’t buy that excuse if you or I tried it for not doing something we’re legally supposed to. If the judge thinks his/her job is too hard, go find another line of work.

    2. What do the judicial conduct standards say? Is there any definable limit to how may judges can rule ignoring The Constitution?

      Can it ever be contempt if a judge ignores higher court rulings?

      1. I don’t think it’s contempt, but it is an impeachable offense.

  4. What we need is for the Court of Appeals to issue an injunction [nationwide? why not?] against any local court below the top two levels in each state from issuing such preliminary injunctions. After all, this is a constitutional question involving possibly irrevocable harm to the enjoined party, and that party will most likely prevail on appeal.

    Federalism? The Fourteenth certainly incorporates the First against the States.

    1. Well, this particular injunction was issued by a court within the top two levels in the state of Rhode Island: Rhode Island is one of the handful of small states that lacks an intermediate appellate court, so the Superior Court (the trial court of general jurisdiction) is the second highest court in the state.

      1. Whoops. That – among a multitude of other reasons – is why you’re a professor and I am not.

  5. There are an increasing set of issues in which the law is clear cut, and yet only those few rich enough to afford appellate lawyers, able to attract the attention of an interest group, or with enough skill and time on their hands to appeal pro se can actually access it.

    Cities and towns have run courts for small fines and such in grossly unjust manners, and yet since it’s not worth it to anyone to fashion for years, the situation has gone on systematically for years, uncorrected or perhaps corrected in the occasional individual case.

    This may become similar. Media companies have far fewer resources than they used to. And appealing an injunction is outside the capacity and resources of nearly all ordinary bloggers.

    Possession of legal resources is increasingly becoming a de facto ability to do what one wants. What the law theoretically is (and still is for the few who have resources), and what it actually is for most people, is becoming increasingly divergent.

    It’a an issue, separate from the First Amendment one, that may well be worth Professor Volokh’s attention.

  6. How nasty are the actual posts if both the blogger AND the blogger’s lawyer concede that they’re offensive in their public statements?

    One thing I’m interested in, procedurally, is how come the blogger didn’t even know he was being served when he got the takedown order. Isn’t service required when the lawsuit is filed? Did he “not get a chance to participate” in the TRO hearing because he didn’t show up for the TRO hearing?

    1. Well, it does say the injunction was granted at a preliminary court hearing before he was notified of the lawsuit. Which actually IS legitimate in some limited circumstances, but basically never in THESE circumstances.

      Following up one of the above links, I find that one of the statements of fact in the injunction was, “THAT PLAINTIFF HAS NEVER COMMUNICATED WITH DEFENDANT IN REGARDS To
      THIS DEFAMATORY POST;”

      This certainly makes the claim that the injunction was granted without bothering to let the defendant know seem plausible.

      Every once in a while you just get a judge who doesn’t seem to grasp that you can’t treat speech and publishing this way.

      1. “Well, it does say the injunction was granted at a preliminary court hearing before he was notified of the lawsuit. ”

        Yeah. How do you GET a preliminary hearing about a case before the case is started? In the one state whose procedure I have even passing familiarity with, to FILE a lawsuit you have to include proof that the other party was served with a true copy of the complaint. In other words, the defendant knows about the suit before the court does.

        1. Mr. Pollock wrote,

          In the one state whose procedure I have even passing familiarity with, to FILE a lawsuit you have to include proof that the other party was served with a true copy of the complaint. In other words, the defendant knows about the suit before the court does.

          Which state is that? Does it have exceptions for (using my paradigmatic example above) battered wives seeking protection from abusive husbands?

          What you describe is the opposite of what my experience has been in every state in which I’ve been involved in litigation. And what you describe is certainly not the practice in any federal court.

          1. Oregon. (I’m not a lawyer, but I did go through a divorce here).

            But ORCP 9A says unless an exception applies, you serve the other party first, then file with the court clerk. What the exceptions might be, I don’t know, nor do I feel like reading the ORCP to find out.

            1. ORCP 9A does not require the original petition to be served prior to filing. And you can have an ex parte TRO on evidence of immediate and irreparable injury, etc. See ORCP 79B(1).

              1. Fine. Tell the clerk of the court that they’re doing it wrong.

  7. In New York, what is called a temporary restraining order is issued without any hearing. (Hence, at least in New York, Prof. Volokh’s reference to a TRO issued without any hearing is redundant.) It’s entirely appropriate that such orders be issued in certain emergency circumstances. If the construction company bulldozing next door is undermining your building, putting it in imminent danger of collapse, a TRO would be in order. Give the bulldozer operator a court order, and track down the owner of the site and the general contractor later.
    An injunction issued after a hearing, but before a final determination on the merits, is called a preliminary injunction.

  8. How do such injunctions get issued in the first place?Are state judges really so ignorant of federal law that they don’t know that such an injunction is unconstitutional? Do they know but issue them anyway in order to please someone?

    1. It’s always to please someone. The question that’s trickier is: are they pleasing the person in front of them because they’re lapdogs, or pleasing their governmental masters because they’re toadys?

      1. Mr. Beckman, I think you are using too broad a brush. In 40 years of practice I’ve seen all kinds, including cash-in-a-briefcase corrupt judges and judges who seem to be badly brain damaged while on the bench. I don’t, and couldn’t, deny that your description would be accurate as to some of the judges I’ve met, but the vast majority take their obligations more seriously.

    2. Are state judges really so ignorant of federal law that they don’t know that such an injunction is unconstitutional?

      The short answer is yes. Local trial court judges are often not exactly the best and brightest of the legal profession to begin with, and they likely never deal with constitutional claims in their daily professional lives.

      1. And when they’re magistrates, they sometimes don’t even have to have a law degree or be licensed to practice law.

  9. In Texas civil practice, the difference between a temporary restraining order (“TRO”) and a Temporary Injunction (“TI”)(equivalent to a preliminary injunction in federal practice) is in what the judge may consider. The whole point of the TRO is simply to preserve the status quo long enough to ensure that the defendant does indeed have fair notice and opportunity to respond before the vastly more consequential TI hearing; the judge may consider only the affidavit evidence and exhibits submitted with the petition; and he or she may not hear live testimony or make credibility determinations. The judge is supposed to consider probability of success on the merits, along with irreparable injury, the inadequacy of any remedy at law (money damages), and public policy.

    Most good judges in Texas, state and federal, will therefore demand a really good reason if the plaintiff has not attempted to give emergency notice to the defendant directly or, if the plaintiff can reasonably determine who regularly represents the defendant, to his likely lawyers. Sometimes the judge will pick up the phone him or herself: I’ve had calls from a judge who has said, “Mr. Dyer, I see you’ve represented ___ before; they’re the defendant in a new case and the plaintiff is asking me for a TRO; do you want to come and be heard?” (Of course one says “Yes” to this question.)

    But the rules don’t require this, and not all judges are scrupulous, alas. I never run this risk when I’m asking for a TRO; I always do my best, and leave a paper trail to show, that I’ve given notice of the TRO hearing if possible.

    If a TRO is granted, the TI hearing must be held at the earliest practicable date, ahead of everything else on the court’s docket. And the TRO expires of its own accord, unless converted into a TI, within 15 days, subjection only to one possible 15-day extension (unless the defendant consents, which happens sometimes).

    No TI hearing can ever go forward without showing of formal and successful service on the defendant. The TI hearing is a bench mini-trial, and may last several days, often with full opening and closing statements, live direct & cross-examinations, and even expert witnesses. Courts sometimes grant emergency discovery to help the parties prepare for one, but often they’re hipshot circuses, with no discovery at all — trials by ambush (which are terribly challenging and wonderfully fun). Both sides have subpoena power, though. The judge’s resulting findings & conclusions will typically offer a penetrating insight into his considered reactions to the case, so win or lose, TI hearings often prompt settlements as one side or the other re-assesses. If the TI is granted, it’s immediately appealable, but they’re reviewed under an abuse of discretion standard, which favors the plaintiff who’s gotten the TI.

    1. *subject only to one possible extension, I meant to write.

  10. A lot of comments speculating about the judge and the judge’s motivations. Sounds to me like turning a magnifying glass on the judge to find out what’s going on there, might be in order.
    I’d love to read what’s going on there, backing up the mindset that apparently has no clue what 1A is about.

    1. I’d be interested in Prof. Volokh’s first- and second-hand experience on this, since he’s been in this position so often, but my own impression, from the relatively few times I’ve seen or heard of this happening in Texas, defense counsel have a very high success rate when they finally have a chance to show up and be heard, and many trial judges, with the benefit of someone actually arguing the First Amendment — I know, that shouldn’t be needed, but many judges rarely handle defamation or other litigation involving First Amendment issues and haven’t studied it since law school — many trial judges reverse themselves. As Professor Volohk has also noted many times, appellate courts are often quick to correct, sometimes quite emphatically, trial courts that have wandered, or been led, into First Amendment error.

      1. I don’t know the Latin term, but there’s a saying that “you can beat the rap but you can’t beat the ride.”

  11. Separate from the prior restraint issue, the underlying lawsuit appears a potentially legitimate one. The plaintiff alleges that the defendant falsely accused her of faking an illness and then lying about it to get media coverage.

    If plaintiff’s claims are true, this would seem a straightforward example of libel on which the plaintiff could get damaged and an injunction after a trial.

    So while I agree the temporary restraining order is an unconstitutional prior restraint, and over broad in addition, that ought to be quickly dissolved as soon as the federal court takes jurisdiction, I don’t see a reason to dismiss the underlying lawsuit. The plaintiff appears to have alleged a genuine libel justifying relief if proven. If she wins, an appropriately narrowed, post-trial version of the restraining order might well become appropriate.

  12. […] Waiting until the facts are in is a good rule of thumb just about anywhere, but especially in this case where a judge handed out a preliminary injunction after having seen nothing more than a super-vague complaint. The defendant — accused of libel per se and various forms of secondhand harassment — now has the ACLU on his side. (via The Volokh Conspiracy) […]

  13. […] Waiting until the facts are in is a good rule of thumb just about anywhere, but especially in this case where a judge handed out a preliminary injunction after having seen nothing more than a super-vague complaint. The defendant — accused of libel per se and various forms of secondhand harassment — now has the ACLU on his side. (via The Volokh Conspiracy) […]

  14. Over time I have become concerned about some of the positions taken by the ACLU.

    Not here.

    And it is not a good idea to reduce the trial courts to injunction mills, whether for alleged defamation or for harrassment. although in the latte case the risk of physical harm makes the successful ex parte entry of no contact orders (which are injunctions) more reasonable than the prohibition of publication or the demand for removal of published material on one person’s word.

  15. […] story has caught on quick in legal circles and has been written about on Reason Magazine and Tech Crunch since the ACLU came on board. The more I think about this, and read what these […]

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