The First Amendment and the Specific Preliminary Injunction

[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, and The First Amendment and the Catchall Permanent Injunction; or you can read the whole article in PDF.]

Let’s now shift from an anti-libel injunction that I argue is constitutionally permissible (even if perhaps unsound in other ways)—the catchall injunction—to one that is broadly understood to be unconstitutional: the specific preliminary injunction. Paula sues Don for libel, arguing that Don lied when he said that Paula had cheated him in business. She gets a preliminary injunction, just weeks after filing, or even a temporary restraining order (whether or not ex parte) just days after filing. That injunction says, “Don shall not accuse Paula of cheating him,” and lasts until trial (which could be years or at least many months in the future). It is specific rather than catchall because it bans only the repetition of a specific allegation or set of allegations (here, of cheating).

Such specific preliminary injunctions have been sharply condemned by most appellate courts that have seriously considered them—even by courts that authorize specific permanent injunctions—because those injunctions suppress speech without a finding on the merits that the speech is unprotected. In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. “… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted….”

Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:

[T]he speech alleged to be false and defamatory by the Respondents has not been

You can read the rest of this article at: