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A "Classic Example of a Prior Restraint"

Jonathan William Peters

A "Classic Example of a Prior Restraint"
Daniel de la Hoz via Getty Images

The courts are alive with prior restraints on speech. Judges have enjoined people from speaking online about ex-lovers, from criticizing old business partners, from publicizing that someone was suspended from the practice of law—and most recently, in two cases decided in the last two weeks, one man was enjoined from using the name of a woman he was suing, and another was enjoined from speaking about his doctor. Strange cases, both of them.

In the first, the Montana Supreme Court upheld a no-contact order that read:

Ron Glick shall not utilize the name Angela J. Townsend or The Forlorned in any manner except in his Federal District Court case. This prohibition shall extend but not be limited to any internet communications, postings or social media.

The order arose out of a dispute over whether Glick owned the trademark to Townsend’s book The Forlorned. Things got heated, and Townsend accused Glick of stalking her. She requested a restraining order, which the trial court granted and the Montana Supreme Court affirmed—even though the latter said there was insufficient evidence to find that Glick had stalked Townsend.

Affirming the no-contact order, the Montana Supreme Court did not conduct any First Amendment analysis. Instead, the opinion simply noted that Glick argued that the order “infringed upon his freedom of speech and expression by prohibiting him from using Townsend’s name or trademark.”

In the second case, the Arizona Court of Appeals invalidated an injunction prohibiting a surgical patient from making or communicating—“without agreement of the parties or permission of the court”—any “comments, letters, faxes, flyers or emails regarding” the treatment and care the patient received from a particular surgeon. The injunction arose out of the patient’s claim that the surgeon had committed malpractice while repairing his shoulder.

The court of appeals said the injunction was a “classic example of a prior restraint”—the “most serious and least tolerable infringement on First Amendment rights.” It said such restraints “carry a heavy presumption of invalidity” and that the injunction at issue was overbroad, because it prohibited all public speech regarding the surgeon, including that which was “wholly truthful.”

One basic problem in both cases, as UCLA law professor Eugene Volokh has written, is that the lower court applied an injunction to speech about a person rather than speech directed at a person. “The law seems to be returning—not deliberately, but in effect—to an era when criminal libel laws could impose liability not just for falsehoods, but also for true statements or opinions that were supposedly not said with good motives,” according to Volokh.

Keywords: First Amendment, free speech, prior restraint, injunction, censorship