So the Kentucky Supreme Court held last week in Hill v. Petrotech Resources Corp., following a modern trend (though one from which some state courts have dissented). The premise is that the ban on “prior restraints” means that speech may not be restricted prior to a decision on the merits that it falls within an unprotected category, such as libel. So a preliminary injunction based on a mere likelihood that the speech will be found libelous — and preliminary injunctions generally rest on such likelihood-of-success-on-the-merits decisions — violates the First Amendment, but a permanent injunction against certain statements based on a finding on the merits that those particular statements are libelous would be constitutional.
I’ve argued here that this is generally correct as a matter of First Amendment law, both as a matter of First Amendment logic and given the Court’s decisions in Kingsley Books, Inc. v. Brown or Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations. But some state courts have read their state constitutions as barring even permanent injunctions in libel cases, and there is considerable 19th century authority supporting that view.
The Kentucky Supreme Court held that both the First Amendment and the Kentucky Constitution allows permanent injunctions. Query whether that’s correct given the text and original meaning of the Kentucky provision (“Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.”), though if you want to opine on that you might want to read the court’s explanation of how it is interpreting the Kentucky provision.
micdeniro says:
If one word or even one comma in the speech decided to fall within an unprotected category is changed, doesn’t that speech differ from the one that can be subject to a permanent injunction, meaning that the permanent injuction is powerless against speech uttered by someone with even a scintilla of intelligence?
October 26, 2010, 3:24 pmMartinned says:
Welcome to the wonderful world of injunctions. I discussed a fun non-speech (or at least non-content) example here.
October 26, 2010, 4:17 pmDavid Schwartz says:
I find this ruling seriously lacking. The injunction was entered on a default judgment. The judicial finding of falsity can only estop the parties. However, the injunction completely obliterates the public’s right to hear the claims at issue. The finding of falsity as a default can’t possibly factor against the public’s right to hear speech which has never truly been adjudged false on the merits.
“But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” — Red Lion Broadcasting Co. v. FCC
“It is now well established that the Constitution protects the right to receive information and ideas.” — Stanley v. Georgia
“The authors of the First Amendment knew that novel and unconventional ideas might disturb the complacent, but they chose to encourage a freedom which they believed essential if vigorous enlightenment was ever to triumph over slothful ignorance. This freedom embraces the right to distribute literature and necessarily protects the right to receive it.” — Martin v. Struthers [citations omitted]
October 28, 2010, 3:25 amAllen says:
I’ve gradually lost respect for my states Supreme Court. They don’t do a very good job of reading laws that are literally spelled out for them. This case seems to hinge on the state constitution recognizing the right to say anything as long as you’re willing to take the risk for libel. A few years ago the legistlature was in a farting match with the governor and they failed to pass a budget or any spending measures for several large parts of state government. Instead of following the literal wording that only the legistlature could authorize spending, they gave the governor the green light to spend based on his proposed budget and draw money without any authorization.
We’ve really got to figure this thing out because it’s really discouraging to see the rules written in black and white and still not know how they’ll be enforced. Makes any interest in politics an exercise in frustration just because you never know when someone gets to reinterpret the laws you lobby and argue for in a completely contrary way.
October 30, 2010, 11:05 am