The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

No Temporary Restraining Order Against Critic of Israeli Muslim Institution,

who allegedly accused it of being an agent of the Israeli government and "refer[red] to individuals associated with the Academy as pigs and use[d] porcine imagery to insult those individuals."


From yesterday's decision by Judge Paul Maloney (W.D. Mich.) in Al Qassimi Academy v. Abuhaltam, rejecting a request for a temporary restraining order in a case brought alleging defamation and intentional infliction of emotional distress:

Plaintiff is an academic institution located in Israel. The Israeli government has issued a license to the Academy. The Academy provides educational and religious services to the Muslim Arabic community in Israel….

Plaintiff complains that Defendant [who is in Michigan] uses his Facebook account and other social media platforms to make false, defamatory, and slanderous statements about the Academy and individuals associated with it. Plaintiff pleads that Defendant uses fighting words and incites violence against Plaintiff's Board members, staff and their families.

Defendant accuses Plaintiff and those associated with Plaintiff of being agents and proxies of Israel. Plaintiff denies being an agent or proxy of the Israeli government. Plaintiff alleges that extremist groups frequently target and threaten members of the Muslim Arabic community in Israel who are seen as agents of or working too closely with the Israeli government.

Plaintiff contends that Defendant refers to individuals associated with the Academy as pigs and uses porcine imagery to insult those individuals. Plaintiff pleads that many Muslims consider pigs to be vile, filthy animals and being compared to a pig is equivalent to being accused of being a disbeliever or a heathen. Plaintiff filed a declaration from a board member in which the board members states that "[a]ll the claims and publications made by the Defendants against us are false." …

Our United States Supreme Court cautions that temporary restraining orders are extraordinary and drastic remedies that may be issued only under "stringent restrictions" and their limited availability "reflect the fact that our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute." … Under [Federal Rule of Civil Procedure] 65, a court may issue a temporary restraining order, without notice to the adverse party, only if two conditions are met. First, the moving party must establish specific facts through an affidavit or a verified complaint showing that an immediate and irreparable injury will result to the moving party before the adverse party can be heard in opposition to the motion. Second, the counsel for the moving party must certify in writing any efforts made to give notice and the reasons why notice should not be required. In addition, the court must consider each of four factors: (1) whether the moving party demonstrates a strong likelihood of success on the merits; (2) whether the moving party would suffer irreparable injury without the order; (3) whether the order would cause substantial harm to others; and (4) whether the public interest would be served by the order.

Plaintiff has not met the requirements in Rule 65(b) for a temporary restraining order. The declaration filed with the complaint does not identify an irreparable injury that will occur before the adverse party can be heard in opposition. The declaration only denies the truth of Defendant's statements. And, counsel has not certified in writing any efforts to give notice to Defendant about this matter or provided reasons why notice should not be required.