The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.)
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.