Under First Amendment doctrine, a prior restraint is a situation where words or pictures are prevented from being spoken or published. Therefore, if there was a prior restraint against this article you would not have the opportunity to read what is contained herein. The First Amendment abhors prior restraints and the jurisprudence throughout this country follows suit. The United States Supreme Court has enunciated that there are situations in which prior restraints on speech or expression are appropriate, yet the highest court of the land has yet to find that situation which warrants prior restraint.
The concept of prior restraint envisions such severe scenarios where military secrets are about to be spoken or published, prior to an invasion or a military operation. Short of something so dramatic, the First Amendment allows for the word or picture to be spoken or published and the proper remedy then to be a lawsuit for damages based upon defamation, slander, liable, or some other type of action, depending on the effects of the words spoken or published.
Along with our new partner, Gary Edinger, we just won a case in front of the Fourth District Court of Appeal in the State of Florida. The appeal involved the overturning of an injunction prohibiting the dissemination of a book and a website related to the book that centered around a failed relationship between our client and her ex-boyfriend. The trial court entered a preliminary injunction, thereby preventing the speech to be spoken, the book to be sold, and one person’s thoughts and beliefs to be disseminated to the world. Fortunately, the Fourth District Court of Appeal ruled that the injunction, almost in its entirety, violated the First Amendment to the United States Constitution.
We have noticed that the trial court in the case mentioned above is not the only trial court that seems to give the First Amendment less credence than it deserves. What we are noticing is that trial courts seem to be overwhelmed by the sweeping power and magnitude of the internet and the global damage that possible slander and liable may cause. Rather than follow traditional First Amendment jurisprudence where the remedy is for damages, they believe that preventing the dissemination is appropriate.
How and why these judges are willing to silence speech and expression baffles us, in light of the Supreme Court’s admonition against this type of ruling. What is worse is that these rulings are coming out at the preliminary injunction stage, rather than after a full trial on the merits and a finding by a jury that, in fact, the publications are false and therefore defamatory. Therefore, people’s voices are being silenced based upon a possibility that what they are saying is not true, rather than a finding of what they said was false. In these situations, usually those with the deep pockets can silence those in less of an economic advantageous position.
Yet, isn’t that what the courts are for? Aren’t the court there to be a level playing field, rather than a vehicle for the wealthy to subjugate the less fortunate? Obviously, one would not find too many lawsuits in which a poor person has the ability to come into court and file an action for defamation and seek a preliminary injunction against a wealthy person. Rather, the situation always seems to be the opposite.
If in fact that poor person had the ability to come to court and sue that wealthy person for defamation, the Courts would be less likely to give a preliminary injunction because they would calculate that the damages were so little, therefore what’s the harm with the speech. Rather, it is that wealthy person who is damaged by the speech that apparently the courts seem to think need protection.
Although in the practical sense there is this disparity between wealth and lack of wealth having access to the courts and the ability to get those preliminary injunctions against speech, the issue really should not be one involving money. The issue solely should be that the Supreme Court has gotten it right throughout over 200 years of jurisprudence and that no prior restraint on speech or expression should be permitted in a free society. How and why these lower level judges are attempting to carve out exceptions and not follow the rule of law is up to that Judge on a case-by-case basis. What is most troubling is that these judges seem to be giving the First Amendment and freedom of speech and expression less concern than it deserves.
Only in a society and system where truth or falsities are free to be expressed are the people truly free. One person’s falsity is another man’s truth. As the Supreme Court has noted on numerous occasions, it is up to the marketplace of ideas to determine whether something is true or false, and that the truth will win out. When judges are willing to prevent the society and the people from making those decisions, they are cutting back on our First Amendment rights, and making each one of us a little less free.
On another note, in a matter of weeks James S. Benjamin and Daniel R. Aaronson will be headed to New Orleans for the First Amendment Lawyers’ Association 2013 Winter Meeting. From our standpoint, why this is important, is that Daniel R. Aaronson will be presiding over the meeting as the current President of this prestigious organization. As always, in attendance will be some of the greatest First Amendment minds and lawyers in the country. To be selected to such a position is quite an honor. When we get back from New Orleans we will let you know how the meeting went, and as always, report to you on what we learned in the latest trends on First Amendment jurisprudence.