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Injunctions vs. Free Speech? Ever heard of the Constitution?

First American eAppraiseIT v.Crowley is the latest assault on free speech in Florida. The defendant in that case publishes a website called Mortgage Fraud Watch List.

From the Defendant’s website:

MFWL is a database of addresses, submitted by real estate professionals from all 50 states, where a sale or refinance transaction has suspicious activity. Mortgage transactions involving these addresses should be scrutinized to insure the accuracy and honesty of all data submitted as part of the loan process. MFWL will direct all potential fraud reports from our members and non members to proper authorities for investigation.

The Plaintiff doesn’t like what the Plaintiff allegedly said about him on that site, so he sued for defamation.

It seems on its face that the suit is unsupportable, but I’ll need to review the pleadings to definitively say so. I will publish an update after I get them in hand (and eat humble pie if my instincts are wrong). (The full transcript of the hearing is here, but I excerpt it below).

Whatever the merits of the case in chief, the Plaintiff’s motion for a preliminary injunction was completely unsupportable.

The Plaintiff asked the judge for an injunction prohibiting the Defendant from making any statements about the Plaintiff until discovery was completed. In other words, before a single statement was determined to be legally defamatory (whether it is or not) the Plaintiff wanted the Defendant’s First Amendment rights suppressed until he could complete all of his discovery – which could take months.

In dismissing the request, the judge held:

Injunctive relief is unavailable to redress a past harm or to restrain an actual or threatened defamation. That’s Rodriguez v. Ram Systems, Inc., 466 So.2d 412…Animal Rights Fdn. of Florida, Incl, v. Siegel, 867 So.2d 451…Demby v. English, 667 So.2d 350, and it says, quote “It is a well established rule that equity will not enjoin either an actual or a threatened defamation.(source)

Your injunction asks me to enjoin something that the district courts of appeal tell me that I can’t do.

With that, the Plaintiff seems to have flailed a bit, asking to orally amend the motion. The court was un-moved.

[Y]ou have to tell me by pleading what you’re asking for, and what you asked for is not permissible under the law of this state, and therefore I deny it. You can file whatever you want to in the future, but what you filed here is not permitted under the law of the state, aside from the First Amendment. So I deny it. Thank you.(source)

And the citizens of Florida thank you Judge Moxley for his wisdom in slapping down that patently unconstitutional request.

I’m not sure what the Plaintiff was thinking in asking for something so blatantly unconstitutional. Had the judge lost his mind and granted the injunction, this would certainly have been held to be an unlawful prior restraint by the appellate court.

Prior restraints are so constitutionally repugnant that they are very rarely granted at all, and almost never granted in a civil case. To get an injunction telling a citizen that they may not speak on a certain subject requires the movant to show that a grave and irreparable harm would come from the speech. “Grave and irreparable” normally means something on the level of a threat to national security. For example:

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. Near v. Minnesota, 283 U.S. 697 (1931).

Prior restraints on speech are reserved for speech with an effect of this magnitude and gravity — not just because a plaintiff doesn’t want the defendant to talk about them. There was an unfortunate recent case in California where an injunction against future speech was granted. See Balboa Island Inn v. Lemen. However, in that case, the defendant’s speech had already been found to be defamatory and she was restrained from repeating the defamation. I still think that this decision was wrong, but at least the Defendant had enjoyed her day in court, and the injunction was a consequence of the fact that the statements had already been proven to be defamatory in a court of law. In the instant case, the Plaintiff sought a suppression of First Amendment rights pending the Defendant’s day in court.

It doesn’t get much more constitutionally offensive than that.

I look forward to watching this case develop.

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