"Mississippi Town Votes to Drop Lawsuit That Had Forced Newspaper to Take Down Editorial"

From the Foundation for Individual Rights and Expression (FIRE) (see here for my original post on the case):

After receiving widespread condemnation for obtaining a temporary restraining order that forced Mississippi's Clarksdale Press Register to take down an editorial critical of the city, Clarksdale's Board of Mayor and Commissioners voted Monday to drop the lawsuit.

Last week, the Foundation for Individual Rights and Expression first called national attention to the plight of the Press Register after the city sued the small-town Coahoma County newspaper to force it to take down an editorial criticizing local officials. On Friday, FIRE agreed to defend the Press Register, its editor, and parent company in court to have the unconstitutional restraining order lifted…

By Monday, Clarksdale's Board had convened, voted not to continue with the lawsuit, and filed a notice of voluntary dismissal with the court. That means the city's suit is over and with it the restraining order preventing the Press Register from publishing its editorial….

The controversy began when the city of Clarksdale held an impromptu meeting on Feb. 4 to discuss sending a resolution asking the state legislature to let it levy a 2% tax on products like tobacco, alcohol, and marijuana. By state law, cities must notify the media when they hold such irregular "special-called meetings," but the Press Register did not receive any notice.

In response, the Press Register blasted the city in an editorial titled "Secrecy, Deception Erode Public Trust," and questioned their motive for freezing out the press. "Have commissioners or the mayor gotten kick-back from the community?" the editorial asked. "Until Tuesday we had not heard of any. Maybe they just want a few nights in Jackson to lobby for this idea – at public expense." …

Rather than taking their licks, the Clarksdale Board of Commissioners made a shocking move by voting to sue the Press Register, its editor and publisher Floyd Ingram, and its parent company Emmerich Newspapers for "libel." Last Tuesday, Judge Martin granted ex parte – that is, without hearing from the Press Register – the city's motion for a temporary restraining order to force it to take down the editorial.

By silencing the Press Register before they could even challenge Clarksdale's claims, Judge Martin's ruling represented a clear example of a "prior restraint," a serious First Amendment violation. Before the government can force the removal of any speech, the First Amendment rightly demands a determination whether it fits into one of the limited categories of unprotected speech or otherwise withstands judicial scrutiny. Otherwise, the government has carte blanche to silence speech in the days, months, or even years it takes to get a final ruling that the speech was actually protected.

Judge Martin's decision was even more surprising given that Clarksdale's lawsuit had several obvious and fatal flaws. Most glaringly, the government itself cannot sue citizens for libel. As the Supreme Court reaffirmed in the landmark 1964 case New York Times v. Sullivan, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."

But even if the Clarksdale commissioners had sued in their personal capacities, Sullivan also established that public officials have to prove not just that a newspaper made an error, but that it did so with "actual malice," defined as "knowledge that it was false or with reckless disregard of whether it was false." Clarksdale's lawsuit didn't even attempt to prove the Press Register editorial met that standard.

Finally, libel requires a false statement of fact. But the Press Register's broadside against city officials was an opinion piece that expressed the opinion that there could be unsavory reasons for the city's lack of candor. The only unique statement of fact expressed in the editorial — that Clarksdale failed to meet the legal obligation to inform the media of its meeting — was confirmed by the city itself in its legal filings….

Like many clumsy censorship attempts, Clarksdale's lawsuit against the Press Register backfired spectacularly by outraging the public and making the editorial go viral. After FIRE's advocacy, the small Mississippi town's lawsuit received coverage from the New York Times, The Washington Post, Fox News, and CNN, and condemnation from national organizations like Reporters Committee for Freedom of the Press and the Committee to Protect Journalists. Other Mississippi newspapers have stepped up and published the editorial in their own pages to ensure its preservation….