The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Black v. Friedrichsen, decided yesterday by Judge Theresa L. Springmann (N.D. Ind.); seems quite right to me:
[C]ounsel for the Defendants discovered that the Plaintiff recorded portions of her deposition [in her Fair Housing Act case against Defendants] without counsel's knowledge and posted them on social media. That day, counsel emailed the Plaintiff and asked that she remove the videos, but the Plaintiff refused, stating that counsel had "no right to ask for removal of MY TESTIMONY." Shortly thereafter, the Plaintiff made several more postings on her social media account related to the case, including calling the Defendants liars, evil, and racist, among other things…. [T]he Defendants … request that the Court enjoin the Plaintiff from posting disparaging comments about the Defendants and their counsel on social media, order the removal of various social media posts and videos, and sanction the Plaintiff by terminating her case….
In their motion, the Defendants argue that a temporary restraining order (TRO) and preliminary injunction are proper because they are likely to succeed on the Plaintiff's Fair Housing Act claims and the social media posts are causing irreparable harm to their reputation….
While the Defendants are correct that the First Amendment allows courts to restrict the dissemination of information gained through the civil discovery process, see, e.g., Seattle Times Co. v. Rhinehart (1984), their motion requests a far broader injunction. The Defendants seek to restrict the Plaintiff from disseminating her own deposition testimony (as opposed to just the Defendants' deposition testimony), as well as order the Plaintiff to take down social media posts that do not include any pretrial discovery materials. That kind of order is untethered from what the Supreme Court has said the First Amendment allows. It would also undermine the longstanding "tradition that litigation is open to the public." Given these considerations, the Court finds that the harm posed to the Defendants' reputations is outweighed by the harm posed to the Plaintiff and the public interest.