Free Speech

Do Critics of Police Have the First Amendment Procedural Protections That Nazis Get?

The Ohio S. Ct. will take up the question, in the Cincinnati prior restraint case in which we filed an amicus brief.

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The Ohio Supreme Court just granted review in M.R. v. Niesen, on the question whether "when a lower court imposes a prior restraint on expression, immediate appellate review is required." (The underlying case involves a Cincinnati policeman who sued for libel over a post that accused him "of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the 'ok' sign at a City Council meeting … held to address concerns by those in the Black Lives Matter Movement." The judge responded by issuing a preliminary injunction ordering the defendants not to "publiciz[e], through social media or other channels, Plaintiff's personal identifying information," which apparently includes the policeman's name.)

I think the answer is yes, given the National Socialist Party of Am. v. Village of Skokie case. With the indispensable help of our excellent pro bono counsel Jeffrey M. Nye (Stagnaro, Saba & Patterson), the UCLA First Amendment Clinic had filed an amicus brief supporting that position and arguing that the court should hear the case, on behalf of Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O'Neill, Margaret Christine Tarkington, Aaron H. Caplan; the National Writers Union, the Society of Professional Journalists, the NewsGuild-CWA, Euclid Media Group; and me. Here's the heart of our argument (which I expect we'll also resubmit as a merits-stage brief to the court, now that it has agreed to consider the merits):

{The plaintiff, a police officer, sued the defendants, Ohio citizens who criticized his on-duty conduct providing security at a City Council meeting at Cincinnati City Hall. The complaint raised a defamation claim and other similar tort claims. Less than two days after filing the complaint, after a hearing at which the defendant-appellants were present and at which the plaintiff presented no testimony, the court issued an order that "enjoined" the appellants "from publicizing, through social media or other channels, Plaintiff's personal identifying information." The order did not define "personal identifying information," but the only statute that defines the phrase, R.C. 2913.49(A), defines it to include a person's "name."}

Within 48 hours of filing his complaint, [plaintiff] sought and received a sweeping prior restraint: an order forbidding two Ohio citizens from publishing information about a public official arising out the performance of his official duties. That order, like all prior restraints, is presumptively unconstitutional. But when those citizens, Julie Niesen and Terhas White, appealed that order to the First District, the appellate court dismissed the appeal, concluding that there was no final order.

That dismissal was wrong, and there are at least four reasons why this case presents substantial constitutional questions and issues of public or great general interest.

[A.] The order is a prior restraint of the appellants' free-speech rights.

"The term 'prior restraint' is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25 (some quotation marks omitted). "Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints." Id. (quotation marks omitted). "It is inescapable that a regulation of speech 'about' a specific person . . . is a regulation of the content of that speech and must therefore be analyzed as a content-based regulation." Bey at ¶33.

"[B]efore a court may enjoin the future publication of allegedly defamatory statements based on their content, there must first be a judicial determination that the subject statements were in fact defamatory." Bey at ¶44 (citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 246, 327 N.E.2d 753 (1975)). Likewise, a court may enjoin speech that falls within some other exception only after "there has been" a "judicial determination that future postings" by the plaintiffs will fit within that exception (in Bey, this was the "speech integral to criminal conduct" exception). Id. at ¶¶45, 47.

The court below forbade Ms. Niesen and Ms. White from mentioning the name of a public official (police officer "M.R.") in any forum or medium, and it thus is a content-based order. This was a decision made by one judge, without the opportunity for a full trial or even comprehensive briefing, less than 48 hours after the complaint was filed, and it thus was not made after judicial determination that the statements were in fact defamatory. Nor is the order limited to forbidding libelous speech, speech that constitutes true threats, or speech that falls into any other First Amendment exception, such as the exception for intentional incitement of imminent and likely criminal conduct, see Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). It thus does not satisfy the requirement of falling outside the protection of the First Amendment.

The order prohibits speech that is fully protected by the First Amendment and by Art. I, § 11 of the Ohio Constitution. It has no expiration date. The order is a prior restraint of the appellants' speech. And "Prior restraints on First Amendment expression are presumptively unconstitutional." Bey at ¶60. Cases seeking review of presumptively unconstitutional orders restraining speech are the epitome of cases raising substantial constitutional questions.

[B.] The prior restraint impinges upon the public's rights.

The First Amendment protects not only the rights of speakers, but also the rights of listeners. See Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 609 (1976) (Brennan, J., concurring) ("[I]t is the hypothesis of the First Amendment that injury is inflicted on our society when we stifle the immediacy of speech.") (emphasis added); McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015) (anti-libel injunction has "the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.").

Prior restraints always interfere with the public's constitutional right to listen, but this particular prior restraint also interferes with the public's constitutional right to access—including to listen to accounts of—court proceedings. That right is well-established. See In re T.R. (1990), 52 Ohio St.3d 6, 16 n.9 (adult civil and criminal proceedings are "presumptively open to the public"); State ex rel. The Repository v. Unger (1986), 28 Ohio St. 3d 418, 421 (both pre-trial and trial proceedings are open to the public); Sup.R. 45(A) (case documents are open to the public). This order interferes with that constitutional right because it prohibits the defendants from discussing the plaintiff by name when talking about this litigation.

The public also has a right (and indeed, a duty) to supervise and scrutinize public officials regarding the performance of their official duties. That is true generally, but this Court has said that it is particularly true when the public official is a police officer and when the conduct being discussed is his participation in court proceedings. See Soke v. Plain Dealer (1994), 69 Ohio St.3d 395, 397.

The order in this case thus represents a constitutional quadruple-whammy: by allowing the public official here to surreptitiously use the Ohio courts to immunize himself from such public scrutiny, the order has interfered with the appellants' speech rights generally; interfered with the public's right to listen to speech on matters of public interest; interfered with the public's right and duty to supervise the proceedings of the state court system that dispenses justice in their name; and interfered with the public's right and obligation to supervise public officials' performance of their official duties. The First Amendment does not permit this type of speech restriction.

[C.] The dismissal order elevates state civil procedure rules over the First Amendment and form over substance.

Because of all the foregoing constitutional problems, the U.S. Supreme Court has held that prior restraints must be subject to immediate appellate review. National Socialist Party of America v. Skokie, 432 U.S. 43 (1977). But the Court of Appeals refused to follow this precedent, explaining its decision to disregard the U.S. Supreme Court's command by saying that it viewed the order as just a "temporary restraining order," and not a preliminary injunction.

That refusal raises yet another substantial constitutional issue. Constitutional rights, including the First Amendment precedents requiring immediate appellate review of prior restraints, apply regardless of state-law distinctions between TROs and preliminary injunctions. Holding otherwise would permit state law (or, more precisely, state court rules) to dictate the applicability of federal constitutional law. That would wrongly elevate state-law form over federal substance, turning the Supremacy Clause on its head. See U.S. Const., art. IV, cl. 2 (federal Constitution and laws "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding"). Federal law controls over state procedure; not the other way around.

Moreover, the First District's reliance on the supposed status of the prior restraint as a TRO was an inaccurate elevation of form over substance. This Court recently (and unanimously) recognized that TROs can be "classic examples of prior restraints." Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25. The immediate appealability of the order therefore does not depend at all on whether the order was a TRO, a preliminary injunction, or anything else.

{And, though it does not matter to the constitutional issue, the appellate court's conclusion that the order was a TRO and not a preliminary injunction is likely incorrect. The order is properly seen as a preliminary injunction because it was not granted ex parte, cf. Civ.R. 65(A) ("A temporary restraining order may be granted without written or oral notice . . . ."), and, as the Court of Appeals observed at ¶10, the duration of the order "extended . . . past the expiration of the period set forth in Civ.R. 65 for a temporary restraining order." See id. (limiting TRO to 14 days plus one like extension for good cause; the order here was journalized in July and apparently was intended by the common pleas court to remain in effect at least until September 1).}

[D.] The dismissal order created a split between appellate districts.

Even if the First District's dismissal order had no constitutional implications, it would warrant review and correction by this Court because it created a district split. The First District below held that the First Amendment offers no right to immediate appellate review of an ostensible temporary restraining order. M.R. v. Niesen, 1st Dist. No. C-200302 at ¶ 1 (Sept. 9, 2020).

But the Second District has held that "Because the right of free speech must be protected against the chilling effect resulting from even its temporary infringement, the United States Supreme Court held in [Nat'l Socialist Party] that: 'If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, including immediate appellate review. . . .'" Int'l Diamond Exch. Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 671, 591 N.E.2d 881, 884 (2d Dist. 1991) (citations and some internal markup omitted; emphasis in original). And "Given that an immediate appellate forum for review of an order that imposes a prior restraint upon the exercise of free speech is necessitated by the federal Constitution," an appellant need not "wait until the case has been concluded in the trial court before he may challenge the order." Id. See also Connor Group v. Raney, 2d Dist. Montgomery No. 26653, 2016-Ohio-2959, at ¶1 ("Although the issuance of a preliminary injunction by a trial court generally is not viewed as a final appealable order, . . . a preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review.").

The Eleventh District agrees: "[W]here an injunction seeks to 'impose a restraint [on First Amendment rights],' there must be strict procedural safeguards, including immediate appellate review." Puruczky v. Corsi, 11th Dist. Geauga No. 2017-G-0110, 2018-Ohio-1335, ¶15 (paraphrasing Nat'l Socialist Party; some internal markup omitted). "Since Corsi alleges that the injunction substantially impacts his rights and constitutes a prior restraint on his speech, we will proceed to a review of the merits of his appeal." Id.

Unlike the First District's decision below, the holdings of those districts offer no loophole for temporary restraining orders, and those courts exercised their jurisdiction and reviewed (and reversed) the prior restraints. And both Puruczky and Connor Group were libel cases, like this one.

And the Second and Eleventh Districts' approach is correct: As the U.S. Supreme Court has recognized, even temporary restraints on speech can create a chilling effect on the exercise of free speech. See Int'l Diamond, 70 Ohio App. 3d at 671. This Court should also exercise its discretion to review this case and resolve this split of authority on this important constitutional issue that affects fundamental rights. Unless and until it does, the rights of defendants to speak and of the public to listen and supervise their courts and their public officials, will depend on which of the State's appellate districts they reside in….

Proposition of Law no. 1: An order that imposes a prior restraint on speech must be subject to immediate appellate review.

"[I]mmediate appellate review" of prior restraints is constitutionally required. National Socialist Party, 432 U.S. at 44. See also Puruczky; Connor Group; Int'l Diamond, supra.

This principle is fully applicable here. Puruczky and Connor Group involved injunctions entered in response to libel lawsuits, just as this case does. National Socialist Party famously involved Nazis marching in Skokie, Illinois. Nat'l Socialist Party, 432 U.S. at 43–44; see also Collin v. Smith, 578 F.2d 1197, 1199 (7th Cir. 1978). If Nazis who want to march in a neighborhood populated with thousands of Holocaust survivors are entitled to immediate appellate review of an injunction against their speech, then citizens criticizing a police officer must be entitled to the same.

This constitutional requirement flows naturally from courts' recognition of the dangers of prior restraints. "A prior restraint . . . has an immediate and irreversible sanction" that is unlike any other remedy a court may impose, including "a judgment in a defamation case" or even "[a] criminal penalty," because all other sanctions are "subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative" for other remedies. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).

That "panoply of protections" does not exist for a prior restraint, which is why "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id.Prior restraints "fall on speech with a brutality and finality all their own." Id. at 609 (Brennan, J., concurring in reversal of prior restraint).

More broadly, every day that a prior restraint remains in place is a First Amendment violation, and "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). "'Where . . . a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.'" CBS, Inc. v. Davis, 510 U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citation omitted); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (endorsing this principle as requiring "expeditious[]" decisionmaking as to restraints on First Amendment rights, there the right of access to court records); Doe v. Pub. Citizen, 749 F.3d 246, 272–73 (4th Cir. 2014) (same); Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994) (same), superseded on other grounds, as stated in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009). And of course this principle applies beyond the mainstream media, and covers social media users as well.

{Art. I, § 11 of the Ohio Constitution "guarantees to '[e]very citizen' the right to publish freely his or her sentiments on all subjects, regardless of that citizen's association or nonassociation with the press." Wampler v. Higgins, 93 Ohio St. 3d 111, 121 (2001). "We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." Citizens United v. United States, 558 U.S. 310, 352 (2010) (internal quotation marks omitted). "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938); see also Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. Dist. Ct. App. 2014) ("Angry social media postings are now common. . . . But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk," and are just as fully protected by the First Amendment).}

The injury inflicted by prior restraints is thus not remediable by vacatur or reversal of a prior restraint at a distant future date after final judgment, especially where (as here) the prior restraint relates to a public official and his conduct in official and court proceedings. The parties and the public have a right to speak contemporaneously, not merely retrospectively, both about public officials and about court proceedings. See Bridges v. California, 314 U.S. 252, 268 (1941) ("[P]ublic interest is much more likely to be kindled by a controversial event of the day than by a generalization, however penetrating, of the historian or scientist."); Doe v. Pub. Citizen, 749 F.3d 246, 272 (4th Cir. 2014) (acknowledging the harms of "delayed disclosure" with respect to court proceedings). Immediate appellate review is thus critical to make sure that the injunction does not cause such a loss of First Amendment freedoms.

The logic of these cases turns on the commands imposed by the First Amendment—commands that override any contrary state procedural distinctions that would limit immediate appellate review. And of course both this Court and the U.S. Supreme Court have recognized that "Temporary restraining orders," no less than "permanent injunctions," "are classic examples of prior restraints" that are fully subject to First Amendment constraints. Bey v. Rasawehr, Slip Opinion No. 2020-Ohio-3301, ¶25; Alexander v. United States, 509 U.S. 544, 550 (1993).

Yet the First District took a sharply different approach; it concluded that neither the U.S. Supreme Court's Skokie decision nor the Second and Eleventh Districts' decisions applied here, simply because this case involved a temporary restraining order. M.R., 1st Dist. No. C-200302 at ¶9. The First District did not acknowledge this Court's or the U.S. Supreme Court's treatment of temporary restraining orders as prior restraints, nor did it explain why the First Amendment rule of immediate appellate review of prior restraints would be limited by the TRO/preliminary injunction distinction.

This Court's review is necessary to set forth a uniform rule on when immediate appellate review of prior restraints is necessary.

Conclusion

Prior restraints on speech are rarely constitutional; and to make sure that unconstitutional prior restraints suppress speech for as short a time as possible, both the U.S. Supreme Court and Ohio courts have required that such restraints be subject to immediate appellate review. The injunction in this case is a prior restraint, and thus subject to immediate appellate review; indeed, it is a content-based prior restraint, and one that is not limited to libelous speech or to speech that falls within a First Amendment exception. This Court should step in to correct the serious First Amendment violation in this case, and resolve the disagreement among the Courts of Appeals on whether the normal First Amendment rules apply to temporary restraining orders.

NEXT: Today in Supreme Court History: January 22, 1890

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  1. Remember, the “OK” hand sign actually means “white power” among alt-right members. The “thumbs up” hand sign stands for the “14 Words” or “We must secure the existence of our people and a future for white children”. It is probably best for you to avoid using any gestures or words that could be misinterpreted by an oppressed BIPOC if you want to keep your job and friends.

    1. Jeez, who the frick gave you (or anyone else) the authority to decide a decades old signs or words suddenly mean something else totally different? Weary of of u ppl and your constant search for victimization. Pls quit stalking average sane ppl. Sometimes a cigar is just a cigar.

    2. The “peace” sign is the 2G, a sign expressing the bigoted view that there are only two genders.

  2. Prior restraint exists under the presumption that the defendant has the financial means to satisfy the damages of a libel, which in this case would include loss of career along with all of the psychosocial injuries due to destruction of reputation, along with physical endangerment.

    The concept of prior restraint was established at a time when those defendants unable to satisfy judgements against them were incarcerated. Apparently, we had debtors prisons because I’ve read old law reviews mentioning imprisoning defendants for debt.

    So these two clowns, who seek to libel this officer, are not going to be liable for the libel. Under those circumstances, I think that prior restraint is appropriate.

    1. That’s wrong. Prior restraints are disfavored because when they are overbroad, they effectively prevent people from uttering valuable speech. Whereas if the only punishment is potential civil damages, a person can decide to take the risk and say it.

      Further, they are disfavored because a lot of times the “harm” supposedly caused by speech is overstated before the speech is stated. Whereas after the fact, a court can determine whether the speech actually did any harm or not.

      Your argument is also dead wrong about the effect of libel judgments. Yes, it’s possible to be judgment-proof, though in point of fact few people are. But it’s not like that means they suffer no punishment. If you have a $150,000 libel judgment hanging over your head, good luck earning or saving any money. If you do, you are going to spend a substantial amount of time hiding it from your creditor, or you are going to have to start paying the person off. It’s not like you get to go live a comfortable life. A big judgment is ruinous for many people.

      Finally, this order is way, way overbroad to any concern about libel. If the Court ordered that specific disparaging statements not be made, we could have a different discussion as to what the procedural and proof requirements are for such an injunction. This order prohibits the Appellants from saying completely truthful things about this particular officer.

      1. That’s wrong.

        You don’t say.

      2. Can’t a libel judgement be discharged in bankruptcy?

        1. A good way to tell is to ask Dr. Ed. Whatever he thinks, the opposite is true. I don’t know how well this would work in your case since you are Dr. Ed.

          No, judgments arising from intentional torts can generally not be discharged in bankruptcy.

          1. So much for the cry-baby Millennials saying that their student loans are the only things (other than child support) not dischargeable. IANABL nor do I pretend to be one, but you’d think someone who is would have called them on this.

  3. I think the answer to the question can’t be a aimple yes or no.

    If the defendant had threatened or attacked the police officer, or there was reason to think violence against the oolice officer or his home or family was being planned, the police officer’s role means he might be entitled to more protection than ordinary citizens, including Nazis. A preliminary restraining order might be appropriate.

    But this is a simple defamation case. There is no reason to suspect the police officer or his home or family is threatened or will be harmed.

    1. The officer would still have to prove some sort of targeting (and quite possibly would have to meet the Brandenburg v. Ohio test) and would only be potentially entitled to a far narrower injunction against the targeting.

    2. If there were credible evidence of actual threats or attacks, that would be speech unprotected by the 1st Amendment and thus outside the scope of the analysis above. If the judge had limited the order to actual threats and/or other unprotected speech, there would have been no grounds for the appeal. But that’s not what this judge ordered.

      Note that even if the plaintiffs had made threats, the proper order would be “don’t make any more threats”, not “don’t speak his name”.

      I also reject your premise that an police officer’s role earns any more protection than the rest of us. If someone makes credible threats against you, you deserve the same protection. An officer may be more likely to receive credible threats than a librarian but the protection stems from the threat. It cannot be merely presumed from the occupation.

  4. What about an injunction against Farcebook, Twatter & G00gle?

    As none of them can be liable for libel, the only redress against them *is* prior restraint.

    1. What?

      *sigh* Every post, something wrong. Since Dilan covered the last one, I’ll hit this one.

      “As none of them can be liable for libel, the only redress against them *is* prior restraint.”

      No no no. It’s easy to dislike things you don’t understand. Assumedly, you are thinking about Section 230. This doesn’t prevent you for suing Facebook, et al, for defamation. It does prevent you from suing Facebook, et al, for defamation under a “publisher” theory for what Dr. Ed is posting on Facebook et al.

      More simply (and this is a big simplification)-
      If Facebook “speaks,” then you can sue Facebook.
      But if Dr. Ed is defaming people on Facebook, then you can sue Dr. Ed for defamation, but not Facebook.

      1. Which is what I tried to say — as Farcebook can’t be sued for promulgation of a 3rd party’s libels, an injunction would be appropriate to prevent them from doing so.

  5. What is this first amendment you keep bringing up?

    1. The government can’t arrest you for anything controversial you say but you can still be effectively un-personed by social media, banks, credit cards, and your place of employment if you say something that counters the popularly agreed upon narratives disseminated by corporate media.

      1. Sorry to bust up your victimhood pity party but it’s always been the case that if you talk like a jerk people (including businesses) will disassociate themselves from you.

        1. but it’s always been the case that if you talk like a jerk people (including businesses) will disassociate themselves from you

          Simplified down to, “if you express yourself in a way people (including businesses) disagree with, they’ll disassociate themselves from you.”

          Now go bake me a cake.

          1. It’s almost like certain immutable attributes aren’t ‘expressing yourself’…

            1. I didn’t know Andrew “Poz Pig” Sullivan’s nocturnal bare-back activities were “immutable”.

            2. It’s almost like certain immutable attributes aren’t ‘expressing yourself’…

              Which might actually be the precise reason I didn’t mention immutable attributes. Try again.

              1. Or cut and run when you realize you REALLY didn’t think that one through. Either way.

            3. Queen Amalthea: What do you think of people firing or boycotting someone because of his religious beliefs?

                1. At religious institutions.

        2. That principle was established in Richards et al v. Trump (Atlantic City 1989).

        3. The difference is the credit cards, which essentially are coining money and we are starting to get into some of the very same issues we got into during the Articles of Confederation — and why the Constitution prohibits States from coining their own money.

          This was also an aspect of Shay’s Rebellion, which led to the 1787 Convention — Shay’s involved a lot of other issues too, but the inability of citizens to access currency (which credit cards now are) very nearly led to a second American Revolution.

        4. ” it’s always been the case that if you talk like a jerk people (including businesses) will disassociate themselves from you.”

          No, what we are seeing now is what the Klan used to do to Catholics & Jews — as well as Blacks. Mob action and the threat thereof, businesses intimidated into shunning those whom the mob disapproves of, etc.

          We dealt with the Klan back then — and while I know that Section 1983 only deals with “under color of law”, I’m wondering if any of the other aspects of the Anti Klan Act would be applicable to Farcebook & Twatter.

          I’m thinking of the 1981 judgement that bankrupted the Klan and wonder exactly what the legal theory of liability for a third party criminal act (murder) was, and if the same thing couldn’t be applied to Farcebook & Twatter, Section 239 notwithstanding.

  6. First Amendment law very likely protects this, certainly as a preliminary matter.

    But I am dubious as to the value of advertising the address and other contact information of one’s adversary (names are different, IMO). It seems the only real purpose of that is to invite harassment by some nutcase of the person and his family.

    In light of the power of social media, I could see a court making a limited exception for such information.

    1. I don’t think there’s anything wrong with redacting addresses from filings in appropriate circumstances (indeed, Fed. R. Crim. P. 49.1 requires it as a matter of course in criminal cases). But the order here obviously goes lightyears beyond that.

  7. The prior restraint’s not good, but anybody who spreads the lie that the OK sign is racist in a context where a particular person is making the sign should be aware that they might be exposing themselves to liability.

    1. I may be going off on a tangent here, but isn’t the cancel culture itself? Otherwise, there wouldn’t be any need for this injunction.

      We’ve seen this before — the Klu Klux Klan, and now they are hiding behind laptops instead of bedsheets. And how did we deal with the Klan the last time?

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