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.