Free Speech

Congressional Candidate Ordered Not to Repeat Charges That Her Opponent Abused His Wife

A clear constitutional violation.

|The Volokh Conspiracy |

Derrick Reed and Nyanza Moore are running against each other and one other serious candidate in the Mar. 3 Democratic primary for a Houston-area House of Representatives seat. (Pierce Bush, President George H.W. Bush's grandson, is running on the Republican side, and the district is said to be competitive, though it used to be solidly Republican and had indeed been Ron Paul's old House district.)

Moore had apparently accused Reed of committing domestic violence, so Reed sued; as the Houston Chronicle (Jasper Scherer) reports,

In one post, Moore indicated that she possessed a protective order involving Reed and his ex-wife…. Reed denied the allegations and said no protective order "exists between he and his ex-wife or any other woman."

"Mr. Reed was with his ex-wife for approximately 20 years and has never beat or abused her," the filing reads. "The police have never been called out to any of their residences for domestic violence or any physical altercation."

In a statement, Reed's ex-wife … said, "The claim being made that my ex-husband, Derrick Reed, physically abused me during our marriage is false. This accusation is damaging and unfair to our young and impressionable children and is an untrue characterization of their father."

And last week, Brazoria County (Texas) District Court Judge Patrick Sebesta issued a temporary restraining order requiring Moore to stop making such allegations (at least until a hearing scheduled for Feb. 25), and issue a retraction:

The Court, having read and carefully examined the pleadings, testimony, and/or affidavits presented, this Court determines that Plainitiff has demonstrated that there is substantial likelihood that Defendants [Nyanza Moore and her campaign committee] have engaged in conduct and/or are continuing to engage in conduct, about to perform, or will be allowing the performance of acts related to the subject litigation that are unwarranted and in violation of the Plaintiff's rights and could render the judgment in this litigation ineffectual. It appears from Plaintiff's Verified Original Petition that if the commission of said acts on the part of Defendants is not immediately restrained, there is a substantial likelihood that Plaintiff will suffer immediate and irreparable damage to Plaintiff's business, integrity, and reputation, among other things. Further, Plaintiff has no adequate remedy at law and will suffer irreparable harm if the Temporary Restraining Order is not granted.

IT IS, THEREFORE, ORDERED that the Clerk of this Court issue a Temporary Restraining Order restraining and enjoining Defendants from … making any and all publication or republication of the Defamatory Statements or any defamatory statements regarding Mr. Reed allegedly committing any criminal act of domestic violence … [and] continuing their acts of defamation per se of Mr. Reed and falsely stating and inferring that Mr. Reed "beats women" or has committed an act of domestic violence; …

Defendants … are ordered to withdraw their published defamatory statements, including those that have published via video recording; and …

Defendants … are ordered to issue a public and express retraction of the statements in every social media and media method Defendants used to disseminate the defamatory statements.

Yet regardless of who's telling the truth as to the underlying allegations, the order is clearly unconstitutional:

[1.] The First Amendment may allow injunctions against repeating libels, issued after there has been a trial at which the statements were found to be false and defamatory. But it doesn't allow pretrial injunctions, based on a finding that there is merely a "substantial likelihood" that the statements are false (especially when, as seems to be the case here, the injunction was a temporary restraining order issued without the defendant even having a chance to defend herself). That's true in libel cases generally—and it's certainly true as to charges being made by candidates in a political campaign.

[2.] But beyond that, the Texas Supreme Court expressly held in Kinney v. Barnes (2014) that the Texas Constitution forbids injunctions against making or repeating libels (though it allows injunctions, entered after a trial, ordering the removal of specific web pages found libelous):

Accordingly, we hold that the Texas Constitution does not permit injunctions against future speech following an adjudication of defamation. Trial courts are simply not equipped to comport with the constitutional requirement not to chill protected speech in an attempt to effectively enjoin defamation. Instead, as discussed below, damages serve as the constitutionally permitted deterrent in defamation actions.

The court had in a 1983 case made clear that pretrial injunctions are unconstitutional as well, and reaffirmed that in Kinney, rejecting any "distinction Kinney emphasizes between permanent injunctions on speech adjudicated defamatory and pretrial temporary injunctions on allegedly defamatory speech." But it appears that the trial judge was unaware of this.

NEXT: Right to Removal of "Inaccurate, Irrelevant, Inadequate, or Excessive" Information About People ...

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  1. This one involves Democrats, so the “free speech champions” of the Volokh Conspiracy are all over it.

    John M. Mulvaney of South Carolina continues to breathe easily, however, knowing the Ted Cruz-class, self-described libertarians have his back.

    #ConservativeCourage

    1. “John M. Mulvaney of South Carolina continues to breathe easily”

      You still haven’t gotten that cleared up, eh? I knew you weren’t a lawyer.

      1. I’m a lawyer. You’re a bigot.

        I won’t call you a “sl#ck-j@w,” though, because this is a “libertarian” blog. Just ask the Volokh Conspiracy’s Board of Censors.

        1. “Bigot”= person who disagree with, or pisses off, the Rev.

          1. Will no one rid me of this turbulent reverend?

            I swear, reading his “wisdom” makes everyone’s IQ drop 10 points.

            1. The bias here is in fact even worse: if there was something wrong with this restraining order, then there would also be something wrong, for example, with the order imposed, some ten years ago, by a criminal court on the unsavory “parodist” that we had to deal with here at NYU around that time, ordering him not to participate pseudonymously in any online discussions of certain delicate topics that we deal with here, for very particular reasons, only in closed seminars attended by certain esteemed colleagues whose attendance we deem appropriate. But there was nothing wrong with that order of the criminal court at all, as Eugene knows very well. See the documentation of our nation’s leading criminal “satire” case at:

              https://raphaelgolbtrial.wordpress.com/

        2. “I’m a lawyer…”

          Prove it. Go get the Mulvaney case unsealed. You keep whining about it.

          If you can’t get this simple little thing done, and have to constantly beg Prof. V to go do it instead, that proves that you are not a lawyer.

          1. I’m not begging Prof. Volokh to do it. I’m observing that his championship of free speech has plainly partisan limits, including a propensity for (1) engaging in viewpoint-based censorship and (2) providing passes in cases involving right-wingers on campus, in the courts, etc.

            1. ” I’m observing that his championship of free speech has plainly partisan limits…”

              And I am observing that you are not a lawyer. You say that if Prof. Volokh were not partisan, he would have unsealed the Mulvaney case. I say that if you were a lawyer, you would have unsealed it. You clearly think it should be unsealed.

              Falsely claiming to be a lawyer on a legal blog. That’s just sad.

          2. I am a lawyer. You are a ready-for-replacement bigot. Your yapping does nothing to change either point.

        3. I see Mr. Kirkland’s regular bigotry gets excused, I wonder how the Conspiracy feels about these anti-semetic remarks.

          1. Register a complaint with the Volokh Conspiracy Board of Censors or quit whining, clinger.

  2. “When did you stop beating your wife” just crossed over from hypothetical into reality.

    Now all we need is a swinger candidate to realize “Take my wife . . . please.”

    1. ‘Take my wife?’ That calls for a tune.

  3. most Texas judges are elected…pretty sure knowledge of the Constitution and various rulings and precedents are the last thing on most voters minds when

  4. Accusing a political opponent of abusing his wife shortly before a primary election is clearly defamation per-se and dirty politics at its lowest. I do not know what the proper action is under the law. However, at the very least, we need this to be handled immediately. We cannot re-run the election if it’s found that Moore lied.

    Since all parties involved deny this occurred (which would be absurd if there actually was a restraining order), I can say that this passes the bar for actual malice.

    I don’t care if we need an injunction or to clear the courtroom as soon as possible. We have lawbreaking interfering with our elections.

    1. It is defamation per se only if it is false. In this case, the truth of the matter has yet to be determined.

  5. I wonder what procedure should be in place to (constitutionally) address out-and-out libel in a timely fashion. I think we all agree that being able to just issue horrible lies about someone, win an election, and only then be brought to task for your lies, is not a reasonable solution.

    Maybe, in a case like this (ie, where a judge hears sufficient initial evidence to convince her that one political party is libeling another), the judge can say, “I’m setting a one-day trial for 3 days from today. On that one issue…any other issues in this matter can be heard by me at the usual judicial pace.”? I guess local rules might have to be modified, to allow for such an expedited process. But at long as there is an official trial, with all sides given a full opportunity to present evidence, this might avoid the constitutional concerns…while also protecting the victim’s right to engage in a fair election. Or would even this be legally impermissible?

  6. The injunction order seems constitutional to me. As Associate Justice Joseph Story wrote in his Commentaries:

    “That this [the First] amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man. … It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his rights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends.”

    But then again, I’m a principled Originalist, so whether I like it or not, I have to abide by the original understanding of the Amendment. While I might like for there to be a broad “living” interpretation of the First Amendment, I’m confined by its original meaning. Fortunately, Blackman has a nice article on how lower court judges can side-step precedent and reassert the Constitution’s original meaning. A case such as this might be a good place to start.

    1. QuantumBoxCat: My post was indeed focused on established modern precedents, not on originalist arguments. But if you are making an originalist argument, why are you sure that injunctions (as opposed to civil liability and criminal punishment), issued without a jury — and in this case, without a full trial on the merits and apparently even without notice to the other side — would be considered acceptable under Framing-era understandings of freedom of the press?

      1. I didn’t end up going to law school, so I am, unfortunately, not “sure” of anything. With that said, your framing of the question is confusing since it seems to blend together elements of law and equity, which would have been more distinctly separated during the Framing-era. I’m not sure why a jury would be involved if the Framing-era plaintiff is seeking an injunction in a court of equity (or sitting as a court of equity). So, the notion that injunctive relief (broadly speaking) would be granted without a jury would seem to have been the norm, rather then the exception.

        The proper question (if looking at the Framing-era) would probably be more akin to: can equity restrain the publication of a libel? I don’t actually know what the rules of Originalism are for discovering that one objectively correct answer (what time period do you start and stop; what sources are permitted and forbidden; who can be quoted and who cannot be; how many contemporaneous sources must be consulted to permit an inference from those few to “the public”). So, you’ll have to forgive my clearly fallible efforts here. A cursory search does indicate that this question is not novel, and was explicitly addressed by Lord Eldon in Gee v. Pritchard (1818). From there, and again based on only a cursory search, it looks like state courts grappled with the same question, particularly with relation to property rights and patents (although also in the context of reputation and criminal law). I see there are also a number of 19th century federal cases addressing the question as well. The early 20th century looks to be an interesting point of departure on the question, and would clearly warrant greater attention to understand how the practice has become what it is today. Perhaps technological innovations in media necessitated a different understanding of the law (which of course is a no-no).

        Based on my brief skimming, maybe you should be an Originalist on this question, as it looks to comport with your preferred position and is quite trendy these days. Next time you post on this subject just toss in a quote from Lord Eldon. Your audience will love it (maybe make sure the contemporary case has clear partisan or ideological implications).

        1. 1. The conventional wisdom is that the Framers viewed injunctions against speech as a quintessential “prior restraint” and thus a violation of the liberty of the press. The Framers were much more open to criminal and civil liability for libels than modern law is (though there’s some uncertainty about their exact understanding on this score). But, in Blackstone’s words, that extended only to the power “to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency” — which referred to the constraints imposed by law, and not any equitable remedies.

          2. In particular (and again I speak of the conventional wisdom) it appears that the Framers viewed juries as a necessary protection: That is one reason why civil liability and criminal punishment, which had to go through juries, were viewed as permissible, but judicial orders were viewed as impermissible.

          3. The earliest American case on the subject is some time after the Framing, though around the same time as Story’s treatise — it’s Brandreth v. Lance (N.Y. Ct. Ch. 1839). It rejects injunctions in libel cases, and limits Gee v. Pritchard to what today would be called intellectual property cases (and criticizes Gee a bit in the process).

          4. I keep stressing that this is conventional wisdom — perhaps it’s mistaken. But I’m inclined to trust it on this, until I see some evidence that injunctions against libel were indeed understood as consistent with “liberty of the press.”

          1. See, had I gone to law school I would be much more sure of these things like you are. Although I’m not sure how your question went from “Framing-era understandings” to “conventional wisdom” about what “the Framers” thought. But, in only a couple of sentences you properly educated me on the nuance of everything from Blackstone to the Framers to all the case law! It appears you’ve covered all of the evidence, so I’m not sure what new evidence could possibly emerge that might change anything.

            Sadly, I have yet to read everything by everyone on this topic during that period, so I’m left knowing only how little I know 🙁

    2. Why must Justice Story’s opinion represent “the original understanding of the amendment?” Because you agree with it, I guess, that’s usually how “principled Originalism” works. The actual people who framed and ratified the constitution began squabbling over meaning and interpretation almost immediately, for instance whether the general welfare clause was a meant as a grant of congressional power or a limit on the taxing power. And that was long before Justice Story was on the court.

  7. Assuming no domestic violence occurred, the facts seem shocking. Some commenters wonder what possible solution there could be.

    Here is a hint, before the internet, this kind of thing hardly ever happened. Why? Because ink-on-paper publishers were held liable for defamation along with their contributors. And that made the publishers extra-alert during the run-ups to elections. They were on the lookout for would-be contributors who wanted to influence election results, and then disappear. Many newspapers used a policy of not publishing any factual derogatory material about candidates during established pre-election intervals—regardless of truth or falsity.

    Once again, internet publishing has blown up previous norms on which society relied, without being particularly aware that those norms were even in place. Once again, society will have to contend with that damage, or adjust the laws, to make them do the work which the now-obsolete norms no longer can do. And once again, a big part of the problem is Section 230—the foolish act of congress which enabled internet publishers to escape liability for defamations authored by contributors. As long as Section 230 remains in place, there will be constant pressure to make outright government censorship do the work private publishing used to do without anyone noticing, and usually without involving the courts or the law at all.

    1. Why? Because ink-on-paper publishers were held liable for defamation along with their contributors.

      Sigh. Online publishers are also held liable for defamation.

      Many newspapers used a policy of not publishing any factual derogatory material about candidates during established pre-election intervals—regardless of truth or falsity.

      Well, that seems pretty horrifying if true, and would be a good argument for changing the legal and technical regime to eliminate that sort of information suppression.

      1. Well, that seems pretty horrifying if true, and would be a good argument for changing the legal and technical regime to eliminate that sort of information suppression.

        That was approximately my response, when as a budding newspaper publisher I became acquainted with the custom. (It did not make me more receptive that it was an aging politician who schooled me on it.)

        But experience contradicted my first impression. Experience taught me that in the two weeks or so prior to elections, so many wanton falsehoods typically got offered for publication, that it was simply a misnomer to refer to them as “information.” And hence, not publishing them became the opposite of “information suppression.”

        By the way, politically-minded touts with derogatory information to peddle were typically acquainted with the custom. They took care to get whatever reliably-sourced slurs they might have promptly into the hands of editors—always leaving enough time to vet them before election day. In that way, even the efforts of scoundrels were harnessed on behalf of truth-telling.

        Note: re-reading, I see that my original comment may have been unclear. Where I said, “any factual derogatory material about candidates,” I might better have said, “any factual-seeming derogatory material about candidates.”

  8. This injunction constitutes what is known as a “prior restraint.” It is hornbook law that such injunctions are unconstitutional except in cases involving national security (for instance, in instances where retired C.I.A. employees seek to publish a book). This judge’s action will be reversed, probably very soon — even in Texas with its anomalies (such as the “Unwritten Law” respecting husbands who murder their wives in flagrante delicto).

  9. Prejudice and bigotry are personal values ‘crimes’, always accused, never proved.

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