Josh Gerstein (Politico) reports:
Acting on an emergency request from Maryland Attorney General Doug Gansler, Prince George’s County Circuit Court Judge Larnzell Martin Jr. issued an order Tuesday evening barring anyone from disseminating a sample ballot for the Sept. 14 primary that was recently mailed to Democratic voters and distributed at an early voting site in Oxon Hill, Md.“No materials in the form attached shall be distributed by mail, in person or otherwise under penalty of law,” Martin wrote in the temporary restraining order. “Immediate, substantial and irreparable harm in the form of presentation of false and misleading advocacy information to the electorate will result if such violations were to continue.”
The flier, styled as an “Official Democratic Ballot,” contains at least one error, listing a candidate as running for a county office she isn’t running for. The main objection from some local candidates, however, is that photos of Gov. Martin O’Malley (D-Md.), Rep. Steny Hoyer (D-Md.) and others on the pamphlet suggest the men endorse the candidates marked inside, which in several cases is not true.
Use of another’s name and likeness in a way that strongly suggests that he endorses your speech might well be constitutionally unprotected. It may well constitute, for instance, the tort of “publicity placing person in false light,” as in this illustration from the Restatement (Second) of Torts: “A is a Democrat. B induces him to sign a petition nominating C for office. A discovers that C is a Republican and demands that B remove his name from the petition. B refuses to do so and continues public circulation of the petition, bearing A’s name. B is subject to liability to A for invasion of privacy.” (Note that the label “invasion of privacy” here is a legal term of art; the tort applies even when the information is not generally seen as embarrassing or intimate.) And the Court has held — see Time, Inc. v. Hill and Cantrell v. Forest City Publishing, Inc., cited here — that this tort is constitutionally permissible, if it’s limited to punishing knowing or reckless falsehoods (and perhaps in some circumstances negligent falsehoods, though that wouldn’t be applicable here).
So such speech might be tortious, and it could also probably be criminally punished and even permanently enjoined as well, following a trial on the merits that establishes that the speech is constitutionally unprotected. But preliminary injunctions, such as the temporary restraining order in this case, are generally unconstitutional “prior restraints.” Here’s a summary of the law, from Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147 (1998):
“The special vice of a prior restraint,” the Court has held, “is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment.” After speech is conclusively judicially determined to be unprotected — because it is obscene, for example — a permanent injunction (such as the ones at issue in Kingsley Books, Inc. v. Brown or Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations) would be no more troubling on constitutional grounds than a civil or criminal penalty. “[T]he order will not have gone into effect before [the court's] final determination that the [speech was] unprotected.” The Court’s occasional dicta suggesting that all injunctions are prior restraints are therefore somewhat erroneous overgeneralizations.
But when the injunction is entered prior to this final judicial determination, it is almost always treated as an unconstitutional prior restraint. This is so even when the injunction is entered for the seemingly laudable purpose of preserving the status quo pending the final determination of whether the speech is protected.
Many of the quintessential unconstitutional prior restraint schemes were in fact prophylactic mechanisms that were aimed at preventing unprotected speech, but that ended up at least temporarily restricting protected speech as well. Thus, traditional licensing systems made it illegal for people to print anything, protected or not, unless they had licenses. Traditional prescreening censorship systems made it illegal for people to distribute anything, protected or not, until the censors gave it their approval. The injunction in Near v. Minnesota banned a newspaper that had printed libelous material in the past from operating, even to publish material that was not libelous. Such restraints are presumptively unconstitutional, because they may restrict protected speech as well as unprotected speech.
The same goes for preliminary injunctions that restrict speech, as the Court held in Vance v. Universal Amusement Co. Vance struck down a scheme which had let state courts preliminarily enjoin alleged obscenity “based on a showing of probable success on the merits and without a final determination of obscenity.” Such injunctions, the Court held, were unconstitutional because they allowed “prior restraints of indefinite duration on the exhibition of motion pictures that [had] not been finally adjudicated to be obscene.” The Court continued: “That a state trial judge might be thought more likely than an administrative censor to determine accurately that a work is obscene does not change the unconstitutional character of the restraint if erroneously entered.”
Vance‘s wording and logic are relevant to all speech restrictions, not just obscenity law, and lower courts have in fact struck down preliminary injunctions in other contexts on this very ground. Preliminary injunctions, no matter what sort of speech is being enjoined, rest not on “[a court's] final determination that the [speech is] unprotected,” but on a mere finding of a likelihood that the speech is unprotected.
So it doesn’t matter that the underlying speech restriction is aimed at constitutionally unprotected speech (whether obscenity, libel, or fraud on the electorate). Even when this is so, preliminary injunctions that are “based on a showing of probable success on the merits” (as opposed to a final conclusion as to success on the merits), and that thus go “into effect before [the court's] final determination that the [speech was] unprotected” are unconstitutional prior restraints.
steve_g says:
So, what is one’s responsibility to obey an unconstitutional order? Since “an unconstitutional law is no law at all” (I think), can one be sanctioned for violating the order?
September 9, 2010, 12:51 pmEugene Volokh says:
Steve_G: It depends on the jurisdiction, but in at least some jurisdictions — including in federal court, when it comes to federal injunctions — you must appeal the order rather than violating it. If you do violate it, then you would generally be punishable for contempt of court even if it turns out that the order is invalid. See Walker v. City of Birmingham (1967).
This is called the “collateral bar” rule: You’re barred from challenging the validity of the order “collaterally” (i.e., in the contempt proceeding), but must instead challenge it directly on appeal. There is an exception for orders that are “transparently invalid,” but that’s a pretty narrow exception; I wouldn’t rely on it in a case such as this one.
At the same time, as I said, some jurisdictions don’t apply the collateral bar rule; I don’t know where Maryland fits.
September 9, 2010, 1:04 pmHudson Hornet says:
What is the remedy for me sending out a pamphlet two weeks before an election saying that Eugene Volokh has endorsed me for state attorney general? It’s easily falsifiable, but not in time to prevent me from gaining the advantage of the lie. By the time we have had a trial on the merits and I am permanently enjoined from saying it further, the election is over.
I don’t think it is much of a remedy to say that the media can correct the error (or that Eugene can correct it at a press conference), since they are/he is unlikely to reach all of the people to whom I sent the pamphlet or to whom I can continue to send the pamphlet in the interim.
September 9, 2010, 1:08 pmuh_clem says:
@ Hudson Hornet
It’s the price we pay to ensure freedom of speech. Nobody really likes the situation where someone can lie with impunity knowing that by the time the lie is found out it’s too late, but the alternative is prior restraint of speech and fortunately the courts have declared that unconstitutional in all but extraordinary circumstances.
That said, there are civil and possibly criminal penalties, and if the lie can be directly tied to the candidate instead of some shadowy “interest group” there may by political consequences to pay as well.
September 9, 2010, 1:16 pmMartinned says:
Is it, though? Why would the bar be higher for a preliminary injunction than for ex post punishment? If certain speech is unquestionably not protected, why shouldn’t its publication be forbidden ex ante? What is the logic of such a rule?
September 9, 2010, 1:28 pmGuy says:
The logic is that it’s a prior restraint, even the earliest, more narrow interpretations of the First Amendment was that the government could not prevent speech, only punish irresponsible speech after the fact. Imagine there is a law prohibiting advocating for the Communist party. Being punished after the fact is less severe than being prevented from advocating for the party in the first place. So the potential harm to the First Amendment is much greater in the context of prior restraints.
Did the court discuss the prior restraint issue, or did the defendant fail to raise it? Is it possible that it has been waived?
September 9, 2010, 1:43 pmTaking Liberty Seriously says:
Eugene Volokh wrote:
“you must appeal the order rather than violating it. If you do violate it, then you would generally be punishable for contempt of court even if it turns out that the order is invalid.”
In a weird self-referential way, the effect of the “collateral bar” rule seems itself to work a kind of unconstitutional “prior restraint,” at least when the rule is applied to an injunction banning certain speech and expression content.
I’m not sure the Walker case is necessarily entirely on point since it involved expressive conduct (in an O’Brien-esque way), whereas in Maryland the core of what is being enjoined is the content of the expression itself).
Or so it seems….
takinglibertyseriously.net
September 9, 2010, 1:46 pmSmooth, like a Rhapsody says:
more on the judge to be found
September 9, 2010, 1:51 pmhere
Fub says:
Didn’t Prof. Volokh answer this question above by pointing out that the premise in bold above is (legally, but not necessarily factually) false?
From the quoted article:
Or am I misreading your question?
And, oh yeah, comment preview is still broken.
September 9, 2010, 1:54 pmGuy says:
In some ways this reminds me of our discussion earlier on equitable versus legal relief in the context of contracts. American law does generally take the view that obligations are enforced through ex post sanctions rather than ex ante requirements. Eligibility for equitable relief is a high bar to satisfy. To get a preliminary injunction, you need to show not only that you are in the right, but that you will suffer irreparable harm (i.e. something that can’t be cured by money damages, for example) without the injunction. For prior restraint of speech, I think the test is still that the speech will cause “imminent lawless action”, (and the lawlessness of the speech itself doesn’t satisfy that) which derives from the earlier suggested standard of “clear and present danger”. I don’t know if that test has since been modified, though.
September 9, 2010, 1:57 pmShelbyC says:
Because a preliminary injuction punishes you for speech that’s likely to be not constutionally protected, not speech that’s been found to be unprotected.
September 9, 2010, 2:03 pmLiam says:
That’s true when the first amendment may or may not apply, but the question was what if we had already determined beforehand that the 1st amendment doesn’t apply, by determining that such speech is punishable by law ex post facto?
Or are you trying to argue that just because we can punish speech doesn’t mean it is unprotected?
September 9, 2010, 2:05 pmGuy says:
But no such determination is made in the context of preliminary injunctions. the four prongs are substantial likelihood of success on the merits, substantial likelihood of irreparable harm, that the injunction be supported by the balance of the equities, and that the injunction be in the public interest.
September 9, 2010, 2:13 pmGuy says:
Also, it’s wrong to look at it as if the First Amendment applies to some speech but other speech is unprotected, presumably because it isn’t speech. The freedom of speech protects speech from certain forms of government action, R.A.V. v. City of St. Paul is somewhat on point, though a little askew to the point I’m making. The heightened standard for prior restraint has its roots in the earliest history of the Constitution, and before, going back to the practice of the British government controlling communication of ideas through licensing schemes directed at printing presses.
September 9, 2010, 2:25 pmDilan Esper says:
This is exactly what makes this a tough issue. The problem is that the cure (allowing prior restraints) is worse than the disease, and Professor Volokh’s famous slippery slope arguments apply in full regalia here.
September 9, 2010, 2:27 pmeeyn524 says:
For those who follow The Agitator and similar sites, have you noticed that an unusually large number of cases of police, gov’t attorneys, and judges apparently overstepping or abusing their authority seem to come from Prince George County, MD? Is there something special about that county?
September 9, 2010, 2:34 pmmatth says:
How would the rationale Volokh articulates (in the linked article) for the prior restraint rule apply if Maryland does not have a collateral bar rule? In that case, you could violate the injunction, but still challenge its validity in the contempt proceeding. The distinctive harm associated with prior restraints — that speech is found to be punishable before a judicial determination that it is unprotected — would be absent.
September 9, 2010, 2:46 pmUrso says:
More generally, in any libel action no post facto relief can truly make up for a widely disseminated libelous statement — you can’t unring a bell, and once people hear a slanderous statement and form an opinion of you a later retraction probably won’t solve it.
But courts certainly aren’t in the business of setting forth prior restraints in garden variety libel cases, especially not in the context of a summary proceeding — which is all a preliminary injunction is.
September 9, 2010, 3:17 pmBZ says:
I’ve reviewed the original article, and think there’s a missing element, which, not coincidentally, is also missing from the Gansler opinion/request and the Martin opinion (no, I won’t call “fraud,” just pointing something out):
The Supreme Court permits States to exercise a significant amount of managerial discretion in cases involving fraud on the election system. See, e.g., Buckley v Amer. Constitutional Law Fndtn. Because the State’s power is as constitutionally protected as the First Amendment speech rights, a reviewing court will balance the two and determine if there is a significant and realistic risk of fraud which undermines the integrity of the election process itself. A State may impose restrictions on speech which help it prevent such fraud. Not sure if this exact question (PIs) has been raised, but the speech rights here are not as clear-cut as suggested. Part of the “speech spectrum” theory, which says government’s power to restrict speech increases the closer the speech comes to government itself; elections are pretty close.
Also,
If it were a novel, it would be considered “colorful.” Prince George_S_ County has an unusual combination of ancient and modern traditions, which combine to make an interesting political and legal environment. It’s a big place, with lots of diversity in people, places and history. University of Maryland, College Park, to the north, Andrews Air Force Base to the south, virgin wilderness (kind of) to the east, and densely-packed, heavily minority communities next to Washington, D.C. to the west. Wealthy African-American communities mixed with abjectly-poor areas; I represented some dirt-poor tobacco sharecroppers in the 1980′s in a case against federal regulations declaring tobacco to be a “fruit or vegetable.” This is south of the Mason-Dixon line, and historically a site of plantations and slavery; some of those vestiges echo loudly today. In 1968, George Wallace was shot in Laurel, Maryland, during his Presidential campaign. Recently, one of the leading state politicians (from PG County) was indicted for bribery for misusing his power on behalf of a local grocery chain; doesn’t seem to have surprised anyone there. The local courthouse is new, modern, and, the middle of suburbia, has totally inadequate parking and no transit, meaning that people circle outside for hours, and hearings are sometimes delayed for that point. More to the point of your question, there are lots of special things about the County, but most of these issues stem from clashes between long-standing traditions and modern sensibilities.
September 9, 2010, 3:20 pmMartinned says:
OK, so the problem isn’t that such an injunction is a prior restraint, but that it would be a restraint based on insufficient inquiry. Is that really how it works, though? It seems from the OP and most of these comments as if no amount of inquiry (or rather: jointly stipulated facts) would make an injunction OK.
September 9, 2010, 3:57 pmFub says:
Fair statement on its face or in theory. But, just for a practical hypo, who the heck would stipulate as fact in a prelim injunction hearing that they are about to libel somebody?
September 9, 2010, 4:09 pmKharn says:
Maryland, where every election year they must remind people that the “Republicans vote Tuesday, Democrats vote Wednesday” signs in the ghetto are not correct. Its Republicans Wednesday, Democrats Tuesday…
September 9, 2010, 4:16 pmGuy says:
As far as joint stipulation goes, I would assume the First Amendment issue can be waived. But there does exist a standard for prior restraint to be Constitutional, it’s just that it’s stricter than the standard for ex post punishment. The distinction can be traced at least to Blackstone.
That the First Amendment’s prohibition has been construed to cover certain punishments afterward because of their chilling effect is immaterial. Prior restraints strike at the core of the First Amendment’s protections.
September 9, 2010, 4:19 pmMartinned says:
I was thinking more along the lines of stipulating the content of the statement, and possibly certain other elements of the tort.
Thanks for the reference, but that quote simply restates the point in different words. Why shouldn’t a court be able to permanently enjoin someone from making a libellous statement if it has been proven that said statement will in fact be libellous and hence (?) not constitutionally protected? Why would such a prior restrain be more dangerous, from a free speech point of view, than punishment afterwards?
September 9, 2010, 4:39 pmGuy says:
Because punishment afterward doesn’t prevent the person from communicating their (libelous) opinion. Civil liability for libel is on the theory that you have caused harm to the person and are therefore required to compensate them for that harm. This has the effect of creating a chilling effect on future speech that might be deemed to be libelous, but it’s considered a Constitutionally acceptable trade-off. It’s not the same thing to say that the person can’t say it at all. This rule also works as a prophylactic against judicial abuse where a court might insufficiently recognizing the free speech rights at issue.
It’s one thing to say that a certain publication is harmful to society or other people and therefore can be punished, but there is more potential for abuse if the communication can be prevented from ever getting out, because then the public can never see or hear it, and it can never participate in the free marketplace of ideas.
This isn’t a perfect analogy, but imagine I contract with a politician to speak in his favor at a public rally that I finance myself, in exchange for $10,000. Then suppose I change my mind about that politician (maybe because of something he’s done since, or something new I’ve learned about him, or maybe just on a whim) and instead denounce him. Clearly he’s entitled to sue for his $10,000 back, but that doesn’t mean he can get a court order in advance to prevent me from expressing my opinion and saying anything against him in the first place.
September 9, 2010, 5:06 pmLiam says:
Since when do Republicans get to vote in the Free State?
September 9, 2010, 5:19 pmFub says:
I could believe stipulating to contents of the statement. But without stipulating to all (not just “certain other”) elements of the tort, there is no tort. Since there is no tort, there is constitutional protection.
So you seem to be asking the judge in the injunction hearing to find the tort on less factual basis than the court which would hear the libel case could find it.
Or am I missing something?
September 9, 2010, 5:43 pmGuy says:
Even if it were absolutely proven the statement were libelous, that would not, I think, justify prior restraint, because the standard for prior restraint is a strict one. A court could certainly enjoin a newspaper from publishing troop movements in a time of war, but that doesn’t mean that any punishable speech can be restrained.
September 9, 2010, 5:57 pmMartinned says:
Now you’re using “justify” in the legal sense again, talking about the law as it is. My question still is why there is a class of speech that can be punished afterwards but not forbidden beforehand.
You do realise that criminal libel statutes still exist in a number of US states, and that they are constitutional? Regardless, we can use a different class of unprotected speech if you like. Why shouldn’t the authorities be able to get an injunction against the broadcast of child pornography?
Now you’re confusing the two questions again: 1) is it protected speech and 2) should it be possible to get an injunction. What you’re talking about goes to 1).
Huh?
September 9, 2010, 6:07 pmGuy says:
I know criminal libel statutes exist, but I thought the significance of the distinction would be easiest to see in the context of civil liability. Basically, the answer is that speech might be protected for some purposes, but not for others. The stricter standard for prior restraint is a recognition of the fact that prior restraint infringes speech more severely than punishing it, so the analysis of the balance of Constitutional interests requires a recalculation. The distinction also has a long legal history, because there was a time when the dominant theory was that the First Amendment only prohibited prior restraint.
September 9, 2010, 7:30 pmGuy says:
Martinned, the fact that you seem dismayed by the way this rule prevents a full “enforcement” against criminal or tortious speech shows that it does tend to limit the government’s ability to use its coercive power against that speech. And although the speech may be “unprotected” in the sense that it can be punished, that doesn’t mean that it is wholly invisible to the First Amendment, or that it can be regulated just the same as jaywalking.
An example of an area where the practical effect of the rule can be seen is in FCC regulation of broadcast television. Although speech in that medium is “less protected” than other speech, the prior restraint rule still applies. The FCC can fine “indecent” programming, but it cannot demand that programming meet its approval before being broadcast. This puts the power, first and foremost, in the hands of the broadcasters rather than the federal government, and the programmers can still “opt” to broadcast something they suspect or know will receive a fine.
Furthermore, it reflects an acknowledgment that the courts, too, are a part of the government, and a rule against prior restraint can still allow speech to occur even if it isn’t receiving the “full” protection of the courts. This reduces the First Amendment “cost” of finding speech to be unprotected, and can also mitigate First Amendment harms that might result from a poorly reasoned finding that the speech is unprotected.
September 9, 2010, 8:50 pmMartinned says:
This seems to be the central idea. To me, though, it suggests that the state may discourage certain speech by punishing it, as long as they are not too successful. If they really managed to weed out all libel through punishment, I don’t see the difference with achieving the same result through a prior restraint. They would both have the same “severity”. In other words, you’re saying that if punishment actually worked, more categories of speech would have to be protected. (And again, I’m not wedded to the libel example. Feel free to substitute obscenity, child pornography, fraud, etc.)
September 9, 2010, 8:50 pmGuy says:
That sort of is the idea, a person can be punished for their speech, but ordinarily only their conscience can control whether they will say it in the first place. And even if the speech is punished, others will still hear what was said. It’s sort of an “emergency” provision that allows any idea to be expressed, so long as someone is willing to say it, even if it doesn’t warrant full protection. And as a general rule, the more effective a speech-limiting law is, it is almost tautologically more speech-restrictive.
September 9, 2010, 8:56 pm