Free Speech

Oklahoma Court Bars Defendant "From Making Any Posts or Comments on Any Social Media" About Plaintiff

|The Volokh Conspiracy |

Smith is apparently involved with Jennings' ex-wife, who is in a bitter custody battle with Jennings. Jennings, Smith alleged, had written posts falsely stating that Smith was a "pedophile" and a "known predator" (see the application for the TRO for more), so Smith sued Jennings for libel.

So far so good: Smith might have a valid libel claim. But instead of just getting damages, or even an injunctions against future libels, the court issued this pretrial restraining order (Smith v. Jennings (Okla. Dist. Ct.), dated Wednesday):

That can't be constitutional, it seems to me.

But beyond that, Oklahoma is one of the several states that still forbids injunctions in libel cases, even narrow injunctions that ban repeating statements found to be libelous after a trial on the merits. See House of Sight & Sound, Inc. v. Faulkner, 912 P.2d 357, 361 (Okla. Civ. App. 1995); First Am. Bank & Trust Co. v. Sawyer, 865 P.2d 347, 352 (Okla. Civ. App. 1993). There is a narrow exception for "conspiracy, intimidation, or coercion," but it is narrow indeed, and First Am. Bank & Trust Co. made clear that the "coercion" element is not satisfied simply by speech being aimed at pressuring a business to give the speaker a refund or similar benefit.

And I've seen plenty of other cases that issue such clearly unconstitutionally overbroad injunctions. Just a reminder, I think, that things happen in trial courts that are hard to reconcile with the appellate precedents—and if the losing party doesn't have the money, energy, or time to fight the case on appeal, the trial judge's decision stands.

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  1. molestation and pedo accusations (usually women smearing men) are to custody proceedings like candles are to birthdays. Its practically a tradition.

    1. Sadly, yes. And welcome to the real world of ‘men bad, women good.”

      Heck, the VAWA-funded “counselors” openly encourage the women to commit purjury, at least in Massachusetts. One young lady, *way* to overwhelmed to process this, asked me for help.

      I told her to tell “the truth, the whole truth, and nothing but the truth” — and not to fabricate stuff as the advocates were suggesting.

      And that is when the AIDWTBO got added to the IANAL.

      1. Even more offensively risible than your underlying claim is your suggestion that you advocate people telling the truth.

        1. It wouldn’t be a right-wing blog without misogyny, incels, and yearning for illusory good old days.

  2. Yes, it’s obviously unconstitutional. Plaintiff’s lawyer asks for it — what has (s)he got to lose? And if the judge doesn’t bother to look at it carefully and the defendant is unrepresented or incompetently represented, it just goes out. Of course, defendant is hardly an admirable character — false accusations that one’s ex-spouse is a pedophile are not to be encouraged — but we all got that stuff about prior restraints our first year in law school. I guess the judge has forgotten. Not good; an embarrassment for the Oklahoma judiciary.

  3. Forgive my ignorance here; I’m not an attorney. I’m curious though – This is a judicial order placing a prior restraint on defendant’s speech.

    What is it called when a police officer presents the same “cease & desist” demand to a person? (If you’re tempted to say that this scenario wouldn’t happen, please suspend your reality for the moment and assume this happens regularly as a custom or policy in some cities.) Would the recipient here have no more recourse than the person who received the judicial order?

  4. Tovarisch,

    You hit the nail on the head. Trial courts ability to shred the Constitution, ‘eff over the little people is directly related to the peasant’s inability to mount an appeal. The essence of American jurisprudence, abuse, crush, destroy the little guy in the trial court. Expensive trip to appellate court upholds tyranny in the lower courts. Judges know it, cops know it, lawyers know it…..all a racket which profits the ruling elite… shut up and get in the boxcar, while your appeal is pending!!!!!

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