Free Speech

No Preliminary Injunctions Against Libel, Magistrate Judge Reaffirms

And claims of veiled threats don't change that.


From Magistrate Judge Kathleen M. Tafoya's decision Wednesday in Banks v. Jackson (D. Colo.):

Plaintiffs … Rose Banks, her adult son, Lamont Banks, and the Pentecostal Christian church of which they are both members, Colorado Springs Fellowship Church … bring this diversity action against a former church parishioner, Defendant/Counterclaim-Plaintiff Terrelle Jackson … asserting claims for defamation, intentional infliction of emotional distress, and extreme and outrageous conduct. Specifically, Plaintiffs allege that, starting around June 2018, and continuing to the present date, Mr. Jackson has been "post[ing] on social media defamatory, false and slanderous statements" about them….

Plaintiffs filed a motion for a preliminary injunction … asking that the court enjoin Mr. Jackson "from posting or disseminating any further statements, comments or otherwise publishing any remarks or observations regarding the named Plaintiffs herein." Given that Plaintiffs were essentially asking the court to prohibit Mr. Jackson from speaking, writing, or publishing about them, at all, before any jury determination that Mr. Jackson's comments were, in fact, false and defamatory, the court denied Plaintiffs' motion, on the grounds that a "preliminary prior restraint" is "something the court cannot do." …

Plaintiffs [later] filed the present Motion for Preliminary Injunction, asking once again, that the court enjoin Mr. Jackson "from posting or disseminating any further statements, comments or otherwise publishing any remarks or observations regarding the named Plaintiffs herein." Plaintiffs state that this, their second request for a preliminary injunction, is based on "new evidence," which "concerns a recent posting by [ ] Defendant that can reasonably be described as promoting violence and more than merely suggesting that the target of the violence be the Plaintiff Rose Banks." Specifically, Plaintiffs reports that, on January 15, 2021, Mr. Jackson posted the following statements to his personal Facebook account:

You'll find that a lot of folk have such hatred in their heart towards Rose Banks and want to see her dead…if that's your goal stay FAR AWAY from me. I want to see her REPENT!…we are not the same! #ISaidWhatISaid

According to Plaintiffs, "[t]he only conclusion that can be reached" from this social media post is that Mr. Jackson "is making clear, by obfuscation, but still evident to anyone who reads his posting, that he is making, minimally, a veiled threat of violence against Ms. Banks." Plaintiffs, thus, contend that the court should "preliminary enjoin [ ] Defendant from posting anything additional regarding the named Plaintiffs." …

In the present Motion, Plaintiffs, once again, ask the court to totally enjoin Mr. Jackson from speaking, writing, or publishing about them, prior to any determination that Mr. Jackson is liable for defamation. Such a prohibition is a form of prior restraint…. As previously stated in this very case, an injunction as to defamatory statements is permissible, only if it is (1) "narrowly tailored," (2) "based upon a continuing course of repetitive speech," and (3) "granted only after a final adjudication on the merits that the speech is unprotected." Here, there still has not been a "final adjudication on the merits." As such, Plaintiffs' renewed request for a prior restraint injunction must be denied.

Strikes me as generally quite correct, for the reasons discussed here.

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  1. Why is this in a federal court?

  2. I think the judge made a mistake here. The grounds for the plaintiffs’ second motion for an injunction were not that the defendant’s statement was libelous but that it was a true threat. The quoted portion of the defendant’s pro se response recognized this and argued it wasn’t a threat.

    The opinion appears not to have noticed this. It simply reiterates the court’s previous holding that preliminary injuctiona for libel aren’t available.

    The judge should have referred to the case law on threats. The judge should have articulated the standard for what constitutes a true threat and decided whether the statement meets that standard. And it should have discussed the case law on preliminary injunctions for threats, which is different from the caselaw on libel.

    Preliminary injuctions sometimes are available for true threats that are sufficiently serious. That, of course, is the reason why the plaintiffs changed their legal theory. The judge should have responded to the new theory rather than simply repeated his response to the old.

    That said, I think the plaintiffs’s argument that the defendant made a true threat was very weak and a stretch. I would have denied the motion on that ground, without getting into whether or not a preliminary injunction might otherwise be available.

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