“We are witnessing today a tremendous and ominous expansion of preventive law in the area of civil liberties. More and more, our controls are being devised not as punishment for actual wrongful conduct, but with a view to preventing future evils by a series of restrictions and qualifications that seriously jeopardize freedom of expression.”
Thomas I. Emerson, “The Doctrine of Prior Restraint,” Yale Law School, 1-1-1955.
The Texas Supreme Court heard oral arguments this week on the issue of whether a judge may order the removal of an internet post that has been determined to be defamatory. Under Texas law, a plaintiff may only recover damages and is not entitled to injunctive relief to prohibit or remove defamatory statements.
In this case, Robert Kinney sued Andrew Harrison Barnes seeking only an order that would require Barnes to remove allegedly defamatory content that Barnes posted on the web (and other non-monetary relief). Barnes posted a “news item” on his website that Kinney “devised an unethical kickback scheme.” He had previously sued Barnes for damages, but dropped that case. The Trial Court and Court of Appeals of Texas both entered judgment for the defendant, Barnes, holding that the injunction sought would be an unconstitutional prior restraint on protected speech.
In addition to First Amendment protections under the United States Constitution, Article 1, Section 8 of the Texas Constitution provides that, “Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
In upholding the trial court’s ruling, the Court of Appeals cited the case of Hajek v. Bill Mowbray Motors, where the plaintiff sought to stop the defendant from driving his car in the community with a defamatory message painted on four sides that stated the plaintiff “sold him a ‘lemon.’ The Court of Appeals reasoned that Kinney was essentially asking for the same relief as in Hajek – removing or stopping a statement that had already been published. Court of Appeals Opinion link:
Although the plaintiff in this case is only seeking removal of online posts after such statements have been determined to be defamatory, even allowing post-trial restraint of “free speech” raises the much larger issue of expanding the court’s current authority of dishing out subsequent punishment. Giving courts this additional power to order the removal of internet information, before or after it was published, would have little impact on protecting individuals, and would likely result in a substantial curtailing of “the liberty of speech.”
