Friday, February 07, 2014

Prior restraint of speech tested by two defamation cases in Texas; recalling Minnesota's "Gag Law" against yellow journalism

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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