As Americans, we love to cite the First Amendment of our constitution any time someone doesn’t like what we say. The one that says that we can say whatever we want without worrying about prosecution. In reality, though, that’s not quite true. The First Amendment does indeed protect freedom of speech, but not all forms of speech are protected under the Constitution. For example, libel, incendiary speech (a.k.a. “fighting words”), and “true threats” are not protected under the Constitution. The problem can be discerning what makes a “true threat”, and the difficulty has multiplied with the use of social media. Without body language and tone of voice to indicate whether something is meant earnestly or in jest, people can find themselves in trouble for saying the wrong things. In a recent case, which will be heard by the Supreme Court in the fall, Anthony Elonis posted some rap lyrics to his Facebook page after his wife, Tara Elonis, left him, taking their two children with her. Like most rap, Elonis’s lyrics were crude and brutally violent, including a suggestion for his son to consider a Halloween costume that included Tara’s “head on a stick”. Anthony Elonis also reportedly fantasized about killing an F.B.I. agent and warned that “Hell hath no fury like a crazy man in a kindergarten class.” Continue reading ›
Although laws do exist to protect companies and individuals from harmful false statements, judges enforcing these laws must be careful not to violate the defendant’s right to free speech.
If a plaintiff believes that a defendant’s actions are causing harm, and must be stopped immediately, there are certain forms of emergency litigation which can be used to do this. When filing a complaint against a defendant, the plaintiff can also request that the court grant a preliminary injunction against the defendant’s harmful actions. This protects the plaintiff from any further harm the defendant might do in the months or even years that it can take for the court to reach a decision in the lawsuit. If the plaintiff is successful in proving that the defendant’s actions were harmful and illegal, the preliminary injunction may then become permanent. If, on the other hand, the defendant is successful in defending their case, then the preliminary injunction may be removed.
However, one situation in which courts are unlikely to grant a preliminary injunction is that of defamation. In Organization for a Better Austin v. Keefe, the Supreme Court ruled that it is unconstitutional for a court to issue a preliminary injunction to enjoin libelous statements.
This ruling is intended to protect individual consumers against large corporations that have a team of lawyers on their side. The corporation can act quickly to get a local judge to issue a preliminary injunction against the consumer before the defendant even has a chance to acquire her own counsel. Once that happens, the lawsuit is already going in favor of the plaintiff, even though it has just begun. The defendant is censored for the duration of the lawsuit, and any settlement negotiations which might take place do so in the context of the judge having issued a preliminary injunction against the defendant based on the likely outcome of the trial.
While the Supreme Court’s ruling applies to preliminary injunctions all over the country some states have laws which forbid even a permanent injunction to be issued against defamatory statements. In Missouri, for example, the local law points out that the state constitution makes such an injunction an impermissible prior restraint, although certain exceptions to this do exist.
In addition to state and federal laws protecting freedom of speech, some homeowner’s and renter’s policies include coverage which protects the homeowner or renter from accusations of libel. This turned out to be the case when Cooney posted a video on his YouTube page which made some statements about Jim Butler Chevrolet. Butler took these statements to be libelous and had his large law firm file a defamation lawsuit and petition a judge to issue a temporary restraining order against Cooney and his video. The judge complied before Cooney even had a chance to acquire his own attorney.
When he did manage to find legal representation, the lawyer advised Cooney to check his homeowner’s policy. Sure enough, it included libel coverage. They were able to get the judge to dissolve the temporary restraining order and to deny a preliminary injunction. Cooney was then able to restore his video to his YouTube page while the lawsuit progressed.