Free Speech

Nevada S. Ct. Vacates Preliminary Injunction Against "False or Defamatory" Speech

The injunction, the court held, is an unconstitutional prior restraint.

|

From yesterday's decision of the Nevada Supreme Court in Weller v. Eighth Judicial Dist. Ct., granting a writ of mandamus and setting aside the trial court order:

Real party in interest Amanda Riley sued petitioner Joanna Sarah Weller for defamation and intentional infliction of emotional distress based on social media posts and other communications Weller made that allegedly disparaged Riley. After the district court granted Riley's request for a temporary restraining order limiting Weller's communications about Riley, Riley sought a preliminary injunction to prevent Weller from making what Riley described as false and defamatory statements regarding her.

Weller argued that the requested relief would impose an unconstitutional prior restraint on her First Amendment freedom-of-speech rights. The district court granted the motion and entered an order prohibiting Weller from communicating "any form of … false or defamatory communication" regarding Riley or her counsel while the case is pending. The order further prohibits Weller from sending "false or defamatory communications to any other third persons" or Riley's business contacts while the case is pending….

The First Amendment "afford[s] special protections against orders that prohibit the publication or broadcast of particular information or commentary-orders that impose a 'previous' or 'prior' restraint on speech." Indeed, "prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights," and are presumptively unconstitutional,. The district court's preliminary injunction clearly amounts to a prior restraint as it freezes Weller's ability to exercise her freedom-of-speech rights….

A prior restraint on speech may be imposed only when "(1) the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn, and (3) less restrictive alternatives are not available." None of those requirements were met in this case…. [T]he district court here did not appear to consider whether there was a "serious and imminent threat to a protected competing interest." Although Riley asserts a competing privacy interest in response to the writ petition, she provides no legal authority supporting her argument. Regardless, the United States Supreme Court has rejected such an interest as an adequate reason to impose a prior restraint. And any claimed privacy interest has greatly diminished considering Weller already published the information Riley complains of.

Finally, neither Riley nor her counsel attempted to assert a competing interest that would justify a prior restraint of Weller's speech regarding Riley's counsel. Riley therefore did not meet her burden of justifying a prior restraint….

The prior restraint also was not narrowly drawn. Under this prong of the standard, a prior restraint "is unconstitutionally vague if it fails to give clear guidance regarding the types of speech for which an individual may be punished." Enjoining Weller from making "false or defamatory" communications regarding Riley and her counsel, without more, meets this vagueness standard. Indeed, the language is sweeping in scope and does not offer clear guidance on what speech may violate the order. Weller and Riley's disagreements below regarding whether the challenged statements were actually false or defamatory only add to the order's vagueness.

Finally, the district court did not "make any findings as to whether the [prior restraint] was the least restrictive means to protect against the perceived threats to the purported interest at stake." …

{We recognize that this court approved the use of a preliminary injunction in a defamation case in Guion v. Terra Marheting of Nevada, Inc. (Nev. 1974), but that case did not address the constitutional concerns Weller raises in her petition and therefore is not controlling.}

The court didn't consider whether the analysis might be different for a permanent injunction barring the repetition of specific statements that had been found to be libelous at trial. For more on the general legal question, both as to permanent injunctions and preliminary injunctions, see my 2019 Penn. L. Rev. Anti-Libel Injunctions article. Thanks to the Media Law Resource Center MediaLawDaily newsletter for the pointer to the Nevada case.