Court Orders Newspaper to Remove Editorial Critical of City of Clarksdale (Miss.) Officials

UPDATE 2/25/2025: The City has backed down and dropped the case.

I was traveling yesterday (and I'm continuing the trip today), so I didn't have the time to put something of my own together on this, but I highly recommend this thread from Adam Steinbaugh (FIRE). The opening paragraph:

Wow: The City of Clarksdale, Mississippi, got a court order yesterday directing a newspaper to delete an editorial criticizing city officials -- without a hearing. Here's the TRO issuing the prior restraint: …

I will add one possibly clarifying detail: Many courts have in recent decades allowed anti-libel injunctions requiring the removal of material after it has been found to be libelous after trial (or after a default judgment), and barring the reposting of the specific statements found to be libelous. But the First Amendment continues to forbid pre-trial injunctions, and especially "ex parte" ones such as this one, which were issued without even a preliminary adversary hearing. And that's true even if the order is issued after the article is published; under modern First Amendment law, a "prior restraint" is one issued prior to a trial on the merits, rather than prior to publication:

The special vice of a prior restraint is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment.

That, though, is just one of the many apparent defects of this injunction; read Steinbaugh's thread for much more.

Comments

[SMP0328]

The newspaper should defy this blatantly unconstitutional order. Also, has the City of Clarksdale never heard of the Streisand Effect?

[Stupid Government Tricks]

IANAL. What happens, or is likely or possible to happen, if the newspaper just thumbs its nose at the court order and does not delete the editorial? Contempt of court, jail time for the publisher, sheriff showing up to confiscate servers somewhere?

[rloquitur]

That all depends. The sheriff could refuse to enforce the order. Or he could. The "law" is that a court order, no matter how unconstitutional, must be followed.

[Stupid Government Tricks]

But what could the sheriff actually do? Would the court have to cite the publisher for contempt of court and tell the sheriff to arrest him, or could the court order something more direct like seizing servers?

[David Nieporent]

The "law" is that a court order, no matter how unconstitutional, must be followed.

That is actually a state-by-state thing. I don't know Mississippi law treats a collateral attack on a court order in a contempt proceeding. Most states require that one obey even a meritless order while challenging it, but some have an exception for blatantly wrong ones.

Regardless of the formal law, as a practical matter, this one is so bad on every level that nobody is going to punish them for contempt.

[rloquitur]

Easy to post--but defying court orders, even if allowed by state law, has serious risks. Maybe they can recoup their costs from the city. The lawyer representing the city should be disbarred.

[David Nieporent]

defying court orders, even if allowed by state law, has serious risks.

The risk in that case is that the order will ultimately be upheld and then you've knowingly violated it. There really isn't such a risk here; I will bet your life's savings that this order will be vacated, promptly.

That having been said, the newspaper chose to cowardly comply.

[Jerry B.]

Wanna bet the judge is a Democrat?

https://www.cnn.com/2025/02/20/us/mississippi-judge-clarksdale-register-editorial-order/index.html

[WuzYoungOnceToo]

I don't know about the judge, but the Mayor is a Dem.

[CJColucci]

Probably making that guess based on her picture. Still, would it make a lot of difference in Mississippi?

[skeptical scientist]

I think judgeships in Mississippi are non-partisan. https://www.ballotready.org/elections/mississippi-2022-general-election shows all of the judicial candidates as (NP) affiliation, including the judge who issued the unconstitutional prior restraint.

[MaddogEngineer]

Once again predicting many people's opinion and conclusions on this will be determined by partisan affiliations of the actors involved.

(I've already peaked ahead to know them.)

[SMP0328]

I'm an Independant and so I couldn't care less about the partisan affiliation of the judge or anyone in the city government. This court order is a prior restraint that is an insult to the whole concept of free speech. The judge and city must have forgotten that we are in the United States, not Europe.

[skeptical scientist]

Seems like the libertarian principle here is clearly on the side of the paper and against the judge. I would expect most Reason readers' opinions and conclusions to be colored more by that than any partisan considerations, regardless of whether they vote R, D, LP, or couch.

[hobie]

"we are in the United States, not Europe"

We used to say 'not Russia' as a matter of course.

[TwelveInchPianist]

And Chancellor Scholz says, “Any German can march into my office and say, ‘Donald Trump is a son of a bitch!’”

[mggaviles]

I am a European lawyer and this is stupid. I don't think that I have ever seen a preliminary injunction banning an article prior to a merits trial in my country.

[mggaviles]

In case it is of intellectual interest to you:

After reviewing this for 20 mins, I have found a 1999 constitutional case in my country on a TV report about a celebrity's private life that was stopped by a court prior to full emission because its content was deemed libelous.

This show had already been publicised in short sketches and ads, and the celebrity that was its target filed a lawsuit asking for an injunction against the emission of the full programme.

A lower court held a full hearing with both parties, reviewed the ads of the programme, and reviewed the full programme and concluded that it was indeed libelous. The injunction stopped the broadcast of the full show.

The highest court of my country held that a judicial injunction that prevented the broadcast after a full hearing was OK, because it was based on the sketches already broadcasted, was duly and correctly reasoned, and was limited to the specific report and did not affect any future attempt to report on the same issue.

[santamonica811]

And you didn't want to tell us which country???

[mggaviles]

Spain. The case is STC 187/1999 (García Obregón and Lecquio v Telecinco). Accessible (in Spanish) here: https://hj.tribunalconstitucional.es/es-ES/Resolucion/Show/3929

[WuzYoungOnceToo]

We used to say 'not Russia' as a matter of course.

Given the state of "free speech" in much of Europe these days (I'm looking at you, Germ-"It's a crime to insult someone in public"-any) I'm not sure there's that much of a distinction to be made.

[Michael Ejercito]

The judge here would fit right in with those civil servants who yelled at Facebook executives for not taking down Misinformation fast enough!

[ConservativeProfessor]

If the right to travel is as much a fundamental right as freedom of speech, why aren't pre-trial restraining orders just as unconstituitonal?

[ReaderY]

It isn’t.

[WuzYoungOnceToo]

If the right to travel is as much a fundamental right as freedom of speech

It isn't.

Really? When was Crandall v. Nevada overturned?

[Area Man]

It should never be a proper judicial remedy to have the publication rescinded. Damages and one's own ability to broadcast to the world that the speech is a lie--including, of course, the fact that the speech was found defamatory by a court--are the proper recourses. But the thing itself should still be available once it is put out into the world. (An exception to this rule would be rescission being a condition of a settlement between the parties.)

[rloquitur]

If (a) judicial orders are to be followed and (b) a judge issues an order requiring the taking down of a publication, how can it be said that the Constitution is the "Supreme Law of the Land?" The real Supreme Law of the Land is whatever is in some judge's order.

[skeptical scientist]

It's "supreme" in the sense that if a second judge has to decide what should happen and there is an obvious conflict between the constitution and the first judge's order, the second judge is supposed to resolve the conflict in favor of the constitution.

At the end of the day, the constitution is just a rulebook that the government is supposed to follow, and that lawyers can point to in arguments in court. It won't come and let you out of jail after you get locked up for exercising your constitutional rights.

[ReaderY]

The CNN quote that the City alleged that the newspaper tended to “chill and hinder” City officials’ efforts to lobby the state legislature over a tax issue is of particular note. Doesn’t any expression of opposition to any proposed legislation tend to “chill and hinder” the people who are trying to lobby for that legislation?

It’s mind-boggling.

[rloquitur]

Is it really "mind-boggling." In a country where judicial orders, no matter how jacked, must be obeyed, you are going to have this. Now you know that it is unlikely that this "judge" is going to disbarred--so why should she care about anything but hooking up her buddies?

As a side note, Xavier Becerra threatened journalists with prosecution to prevent them from disseminating lawfully-obtained information on dirty cops. And Biden gave him a cabinet post.

[Daddyhill]

Please, God, let there be a case like this somewhere outside of the old confederacy/SBC! Stories like this are really rather uninteresting because they're never surprising.