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Free Speech

No Preliminary Injunctions Against Libel

Tempers run hot among trumpeters.

|The Volokh Conspiracy |

From a report and recommendation by Magistrate Judge Debra C. Poplin (E.D. Tenn. Oct. 30) in Saidak v. Schmidt, just adopted Friday by Judge Jon P. McCalla.

The Complaint states that Plaintiff [Derek Saidak] formed a business venture in 2012 under the name "Legends Brass," designing mouthpieces for trumpets and other brass wind instruments. Plaintiff entered into a manufacturing agreement with Pickett Brass to manufacture the mouthpieces that Plaintiff designed.

The Complaint states that Plaintiff later met Defendant [Michael Schmidt], an avid trumpet player, who became interested in Legends Brass's products.  Defendant expressed an interest in a custom mouthpiece, which Plaintiff designed and produced through Pickett Brass.  As homage to Defendant, Plaintiff labeled the mouthpiece the "Outlaw."  [Apparently Schmidt had been known as the Outlaw Trumpet Player. -EV]

In addition, as further homage to Defendant, Plaintiff mentioned Defendant on Legends Brass's website.  The Complaint states, however, that Defendant did not design the Outlaw mouthpiece, or any other mouthpieces that were sold by Legends Brass and manufactured by Pickett Brass.

The Complaint states that Defendant became embroiled in a series of social media controversies involving third parties not related to Plaintiff or Legends Brass.  As a result, however, Plaintiff dropped all references to Defendant on the Legends Brass website and on all promotional advertising for Legends Brass.  The Complaint alleges that Defendant became upset at his omission on the Legends Brass website and its promotional advertising.

The Complaint avers that Defendant began a calculated campaign to defame, slander, and libel Plaintiff and Legends Brass…..

Plaintiff sued for libel, alleging that the defendant had called plaintiff "a crook, a thief and a dishonest Christian," and seeking (among other remedies) a preliminary injunction—but the court said no:

While recognizing that a "modern rule" has developed carving out "a narrow and limited injunction" as an exception to the long-standing, traditional rule that "equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages," the Court finds that such modern rule does not apply in this instance. Plaintiff's reliance on Lothschuetz v. Carpenter (6th Cir. 1990) and Loden v. Schmidt (Tenn. Ct. App. 2015) in support of his request for a preliminary injunction is misplaced, because neither Lothschuetz nor Loden addressed the issue of whether a preliminary injunction should issue, but rather whether a permanent injunction should issue after false speech had been determined….

It is clear that where this "modern rule" has been followed, there has been an adjudication of the merits before a permanent injunction has issued, and the judge or jury has made a final determination that the statements to be enjoined are false and libelous. See, e.g., Williams v. Rigg (S.D. W. Va. 2020) ("Thus, the majority rule first requires a finding on the merits that such speech is unprotected before an injunction can be issued enjoining further speech. Otherwise, the injunction runs afoul of the First Amendment and constitutes a prior restraint on what might otherwise be lawful speech."); Goodson v. Republican State Leadership Comm. – Judicial Fairness Initiative (E.D. Ark. Nov. 1, 2018) ("It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder.").

"In essence, Plaintiff seeks to bar further speech before a final adjudication on the merits concludes that the speech is unprotected." In Williams, the Southern District of West Virginia addressed an analogous motion for a preliminary injunction brought by a military veteran (Williams), who had received a Congressional Medal of Honor, against the author (Rigg) with whom he allegedly collaborated with to write his biography, seeking to enjoin the defendant from selling the book. Although the plaintiff in Williams was a public figure, thus necessitating a different standard for defamation, the Southern District of West Virginia stated that "ruling on this preliminary injunction request would require this Court to pass judgment on the falsity of Rigg's speech and the potential damage this speech may cause to Williams' reputation," and found that the "requested relief constitutes a direct encroachment upon the rights and guarantees embodies in the First Amendment of the United States Constitution."

Here, … there has not been a final determination that any statements made by Defendant are false and defamatory, and the Court declines to make such a finding at this time. See Am. Univ. of Antigua Coll. of Med. v. Woodward (E.D. Mich. 2010) ("Where this 'modern rule' has been followed, there has been a full adjudication of the merits before an injunction has issued and the judge or jury has made a final determination that the statements to be enjoined are false and libelous.")….

[Also], even if this Court later determines after such adjudication that an injunction is appropriate, Plaintiffs' requested relief is overly broad, extending well beyond the allegedly defamatory statements posted by Defendant. Plaintiff seeks to prohibit Defendant, as well as any third-parties acting on Defendant's behalf, from making any public statements regarding Plaintiff, his employer, the Church, or Legends Brass. Any injunction that may issue would have to be limited in scope to the statements found to be false and libelous. Renoir-Large v. Lane (S.D. Ohio 20, 2011). Accordingly, even assuming that Plaintiff could demonstrate a likelihood of success with respect to his claims and that the other applicable factors favor Plaintiff, the issuance of an injunction—at least prior to a full adjudication of the merits—is not an appropriate form of relief at this juncture….

Here, Plaintiff sets out three allegedly defamatory statements made by Defendant, i.e., calling Plaintiff a crook, a thief and a dishonest Christian. In order to be actionable, Defendant's statements "must involve fact and not a matter of simple opinion." "[S]tatements of pure opinion, hyperbole, or rhetorical exaggeration will receive First Amendment protection." The Sixth Circuit has fashioned a framework for ascertaining whether a defamatory meaning can be gleaned from allegedly defamatory statements using a multi-factor test:

"(1) The common usage or meaning of the allegedly defamatory words themselves, whether they are commonly understood to be loose, figurative, or hyperbolic words;

"(2) The degree to which the statements are verifiable, whether the statement is objectively capable of proof or disproof;

"(3) The immediate context in which the statement occurs; and

"(4) The broader social context into which the statement fits."

It will be up to the trier of fact to weigh these factors together and determine whether to attribute a defamatory meaning to Defendant's statements. While Plaintiff could ultimately prevail on his claims, on the record currently before the Court, Plaintiff has not satisfied the first prong of the preliminary injunction test in making a clear showing that he is likely to succeed at trial.