Judge Issues Temporary Restraining Order Barring the Operation of a Web Site:

According to the Danville Register & Bee,

Jerry and Melissa Guyles -- the parents of a recently expelled cadet -- [were using] their Web site, ... to publicly question Hargrave president Wheeler Baker's leadership and his handling of their son's dismissal.

Hargrave sued for libel, and a federal judge issued a temporary restraining order, pending trial, enjoining the Guyleses (among other things) from:

a. continuing to operate the website and/or from creating any other websites which disparage, defame, vilify, and/or contain false statements concerning Baker, Hargrave, and/or its administration, faculty, staff, and students;

b. continuing to solicit, contact or otherwise communicate with any parents or guardians of current, former, or prospective Hargrave students or any other persons or entities for the purpose of interfering or continuing to interfere with Hargrave's contractual relationships and/or expectancies; ...

Seems to me like a quintessential unconstitutional prior restraint -- a court order that's entered prior to a finding on the merits that the speech is constitutionally unprotected (in this case, consisting of false statements of fact). The government may indeed sometimes impose liability after a trial on the merits that finds that statements are false. In some situations, it may even be able to impose criminal liability after a trial on the merits that makes such a finding. But the prior restraint doctrine generally bars the court system from suppressing speech before any such finding, especially when the court order goes far beyond false statements -- for instance, statements that merely "disparage" the school, or that communicate opinions or true statements aimed at persuading people not to deal with Hargrave.

I can understand why the court would want to issue a temporary injunction pending a trial on the merits, in case the trial ultimately does find that the speech is unprotected. But as the Supreme Court held in Vance v. Universal Amusement Co. (1980), such temporary restraints on speech -- which may be entered based on a mere finding of likely success on the merits, following a highly truncated factfinding process -- are generally unconstitutional.

Many thanks to Becky Dale for the pointer to this case.

KP Jones:
Unfortunately, the website is unavailable, and neither google nor has a copy.

Too bad, since the TRO doesn't apply to me, I wanted to mirror it. :-)
5.11.2006 8:45pm
Hans Bader (mail):
This order was by the very same federal judge, James Turk, who was ultimately reversed, unanimously, by the Supreme Court in Hustler Magazine v. Falwell (1988).

That case held that common law torts like intentional infliction are subject to the First Amendment, even when the case involves a dispute among private parties, since court awards in tort cases are state action subject to the First Amendment.

Yet here he is, once again, using common law tort claims to silence speech.

And doing so even though the First Amendment has clearly said that even unprotected speech generally is protected from injunctions (as opposed to damages) by the First Amendment rule against prior restraints (which is chiefly aimed at injunctions).

Apparently, Judge Turk is incapable of learning, even when instructed by the Supreme Court.
5.11.2006 8:46pm
KP Jones:
...and by "it" i mean "the website," not the TRO. though i'd probably include a copy of that as well. ;-)
5.11.2006 8:52pm
Ned Ulbricht (mail):
Owners of anti-Hargrave site challenging court order

"We're looking into this situation," the ACLU's Rebecca Glenberg said Wednesday.
5.11.2006 10:34pm
Cato the Younger:
It is perhaps interesting to note that this Order was the result of an ex parte emergency hearing (witness reference only to briefs filed by the plaintiffs, the lack of even a signature line for the defense - much less a defense counsel or pro se defendant signature indicating something like "seen and objected to" - and the setting of a hearing date/time for a Motion for Preliminary Injunction, which is not a trial on the merits). Of course, this fact is not intended in any way to justify this particular Judge's decision to enter this Temporary Restraining Order.
5.11.2006 10:40pm
John Jenkins (mail):
Isn't a TRO almost ALWAYS the result of an ex parte hearing? That's why it automatically times out if you don't have a hearing on the preliminary injunction, or so I remember from remedies.
5.11.2006 11:02pm
Cato the Younger:
I'm not sure if a TRO is "almost always" (hedging your bet? or are you certain?) the result of an ex parte hearing; but this is a fact not borne out by the original post, nor mentioned in the comments, and - at least for readers who wouldn't know whether a TRO "amost always" results from an ex parte hearing - adds to an awareness of the overall circumstances surrounding this particular suit, which is why I referred to this tid-bit as "perhaps interesting." That being said, the plaintiff certainly knows where to find the named defendants and could have at least made a reasonable attempt to effect service of process - but instead chose this route.

It also perhaps interesting to not that the Order was presumably drafted prior to the hearing by plaintiff's counsel - not by the Judge himself or his law clerk (if he has one). In other words, I doubt this Judge gave all that much consideration to the language in the Order and simply relied on plaintiff's counsel to draft something appropriate. I wonder if all this will lead to the type of negative press coverage that Hargrave presumably would like to avoid.
5.11.2006 11:42pm
John Jenkins (mail):
My point was that if it's common for a TRO to issue without a hearing (as I think it is, but I don't know, my experience in that area being entirely academic) then the fact that *this* TRO issued without a hearing is not itself interesting. I said "almost always" because my experience is only academic and I was hoping someone could come up with a responsive reply that would indicate whether my vague recollection from remedies is correct.
5.12.2006 12:28am
From a less vague recollection or remedies:

Temporary restraining order can be obtained by one party in an ex parte hearing; the other party has to be noticed but does not have to be present. Limited duration, that is, short - to be replaced, if at all by a

Temporary injunction which requires a hearing with both parties present.

It's a good thing the judge didn't prejudge the matters of whether the website contains false statements and interferes with contractual relations.
5.12.2006 1:30am
American Psikhushka (mail) (www):
I had a question about speech issues similar to this.

Suppose that the Guyles (parents) found out the web address of Baker's (president) computer and blocked it from accessing their website. Also assume the site contained slanderous, libelous, defamatory, invasive, etc. speech. So there was this website which actually contained false statements, statements out of context, etc. that were doing actual harm, but the victim was being blocked from accessing the public evidence of this.

So what is this? One would think that this is a Constitutional speech issue, only someone is covering someone's ears, not their mouth. Actual torts are being committed, but evidence of them are being kept from the victim. So is it fraud too? Evidence tampering? Is it a violation of the victim's Constitutional rights by a third party?
5.12.2006 10:21am