Mississippi Judge Orders Newspaper To Take Down Editorial Criticizing City Board for Secrecy
Free speech experts say the takedown order is a clear example of unconstitutional prior restraint under the First Amendment.
A Mississippi state judge ordered a newspaper to remove an editorial criticizing city officials from its website, a move that First Amendment experts say is unconstitutional prior restraint.
Mississippi Chancery Court Judge Crystal Wise Martin granted a request on Tuesday from the government of Clarksdale to issue a temporary restraining order against the Clarksdale Press Register. The order commands the newspaper to unpublish an editorial that criticized the Clarksdale Mayor and Board of Commissioners for failing to notify media of a special meeting, as required by state law.
That February 8 editorial, "Secrecy, deception erode public trust," has now been removed from the Press Register's website. (A reprint can be found here.) But, as is often the case, the attempt to censor the newspaper has only brought national attention to it.
Wyatt Emmerich, the president of Emmerich Newspapers, which owns the Press Register, told The New York Times he plans to challenge the order. "I've been in this business for five decades and I've never seen anything quite like this," Emmerich said.
The editorial took Clarksdale officials to task for neglecting to notify the media of a special meeting to approve a resolution supporting additional vice taxes, and it questioned the motives behind that resolution.
"Have commissioners or the mayor gotten kick-back from the community?" the editorial asked. "Until Tuesday we had not heard of any. Maybe they just want a few nights in Jackson to lobby for this idea—at public expense."
Clarksdale officials voted to sue the newspaper for defamation on February 13, claiming that their ability to lobby at the state capitol had been "chilled and hindered due to the libelous assertions and statements."
On Tuesday, Judge Martin agreed with the city and issued the temporary restraining order, finding that, "The injury in this case is defamation against public figures through actual malice in reckless disregard of the truth and interferes with their legitimate function to advocate for legislation they believe would help their municipality during this current legislative cycle."
The reason Emmerich has never encountered anything like this before is that such an order amounts to prior restraint—that is, government suppression of speech prior to publication or a trial on the merits—which is unconstitutional under the First Amendment except in extraordinary circumstances.
For example, in 2022, a Florida state attorney's office convinced a judge to issue a temporary injunction blocking a local newspaper from printing the names of Sarasota County sheriff's deputies who shot and killed a man during an eviction, but that order was quickly voided because it was prior restraint.
"The city of Clarksdale, Mississippi, thinks it knows better than the Founders," Adam Steinbaugh, a staff attorney at the Foundation for Individual Rights and Expression, said in a press release.
"In the United States, the government can't determine what opinions may be shared in the public square," Steinbaugh continued. "A free society does not permit governments to sue newspapers for publishing editorials."
Despite national blowback, Clarksdale officials are unrepentant.
"The only thing we're asking for in city government is to simply write the truth, good or bad," Clarksdale Mayor Chuck Espy told The New York Times. "And I'm very thankful that the judge agreed to impose a T.R.O. against a rogue newspaper that insisted on telling lies against the municipality."
However, the mayor and other Clarksdale officials (and apparently Judge Martin) misunderstand several core parts of defamation law. First, as a threshold matter, municipal governments cannot be libeled. You can say or print whatever you want about the legal entity of Clarksdale. I could write, for instance, that Clarksdale was founded by a syphilitic horse thief who married his cousin, and the city would have no standing to sue me.
As the Supreme Court wrote in its landmark libel ruling in New York Times Co. v. Sullivan, citing a previous case, "For good reason, 'no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.'"
Second, the editorial that so aggrieved Clarksdale's dedicated public servants is protected opinion under the First Amendment. The city doesn't contest the fact that it neglected to notify the Press Register of a public meeting; it merely claims it was an honest mistake. The editorial's suggestion that city officials may have had ulterior motives for this mistake is not a false statement of fact but opinionated rhetoric concerning the operations of government.
The fact that a judge not only entertained Clarksdale officials's retaliatory and legally deficient lawsuit but also granted the town's unconstitutional request to censor a newspaper is an embarrassment to the Mississippi bench and an affront to free speech.
