One possible terror for a blogger or self-publishers
could be service of some frivolous or SLAPP suit, and then an offer from the
plaintiff to drop action if the blogger agrees to cease all online publication
or remove various materials, like self-published books, from circulation, even
if the supposed defamation is only one small narrow item.
There was a case in 1931 called “Near v. Minnesota”
in which a judge had ordered a newspaper to stop publication, but the Minnesota
Gag Law allowing it was overturned by a 5-4 Supreme Court decision. A typical
account of the case is here. The issue then was something high school
students learn about in history courses, “yellow journalism”. (It could make a good item for a test
question on the SOL’s).
The concept is called “prior restraint”. What more commonly happens today is a much
narrower injunction, for a defendant not to mention a particular plaintiff or
particular incident again, online or in print or verbally.
The idea of prior restraint is objectionable partly
because it can chill future legitimate speech. In a practical sense, it can be
used as a bullying strategy, as in a SLAPP suit.
Electronic Frontier Foundation has written (in an
article by Andrew Crocker here) about two defamation cases in before the Texas Supreme Court at the state
level, Burbage v. Burbage, and Kinney v.
Barnes. In each of these cases, an
apparently narrow form of prior restraining injunction has been issued.
EFF notes in its amicus briefs that the Internet has
enabled any person (like me) to become a global publisher, and that the Supreme
Court has so far consistently ruled (going back to the CDA in ACLU v. Reno in
1997, and later COPA) that Internet topology (say it is “Mobius”) does not
justify narrower restrictions on speech, so it should not justify prior
restraint.
It is not unusual that, with out-of-court
settlements, parties are prohibited from disclosing the terms of a settlement
or even other details. Sometimes this
has the practical effect of banning other people who witnessed the case (like
other coworkers) from discussing the case online, even if there are genuine
issues at stake (like discrimination of some kind).
Pictures (mine): Texas Hill Country, Minnesota northern lakes near Miss. river source (2011).
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