State Judge Prefers Prior Restraint To The First Amendment, Orders Blogger To Delete Supposedly Defamatory Posts

from the rushing-to-judgment dept

Preliminary restraining orders targeting speech are almost always unconstitutional. It's not just the First Amendment getting the shaft when judges do this, but the adversarial court process which is supposed to allow defendants to present a rebuttal before the judge starts handing out remedies.

Waiting until the facts are in is a good rule of thumb just about anywhere, but especially in this case where a judge handed out a preliminary injunction after having seen nothing more than a super-vague complaint. The defendant -- accused of libel per se and various forms of secondhand harassment -- now has the ACLU on his side. (via The Volokh Conspiracy)

In a case raising important First Amendment issues for the Internet age, the ACLU of Rhode Island has taken on the defense of a Massachusetts blogger who was ordered by a Rhode Island Superior Court judge to “immediately remove” from his website “any and all posts, blogs, and comments” regarding a person who sued him for libel, without even hearing from the internet publisher. Considering the court order a classic example of censorship, ACLU of Rhode Island cooperating attorney Lynette Labinger has removed the case to federal court for adjudication.

To read the complaint is to be irritated from start to finish. It's not just the allegations, which are weak and vague. It's the font, which appears to indicate the Rhode Island court system has almost zero rules governing the formatting of court submissions.

Kathryn Narcisi -- temporarily represented by state legislator/attorney Christopher T. Millea -- claims Turtleboy (blogger Aidan Kearney) defamed her by posting about her ill-fated hospital visit on his blog. Despite the term "libel per se" being used by Rep. Millea, there doesn't appear to be any libel in the post, which is largely made up of screenshots of Narcisi's Facebook posts and comments. The blogger provides a little commentary, but none of the statements Kearney added could have harmed anything more than Narcisi's feelings.

So, I suppose that's why Narcisi is also suing over damaged feelings. From the complaint [PDF]:

AS PROXIMATE RESULT OF THE ABOVE-DESCRIBED PUBLICATION, PLAINTIFF HAS SUFFERED LOSS OF HER REPUTATION, SHAME, MORTIFICATION, AND INJURY TO HER FEELINGS, ALL TO HER DAMAGES IN TOTAL AMOUNT TO BE ESTABLISHED BY PROOF AT TRIAL.

Ok, then. The lack of defamation in the post apparently isn't a problem for Judge Susan McGuirl, who went ahead and signed an unmodified copy of Narcisi's proposed restraining order [PDF], which prevents Turtleboy/Kearney from:

CONTACTING, ASSAULTING, MOLESTING, STALKING, CYBER STALKING, CYBER BULLYING, BULLYING, HARASSING, THREATENING, ANNOYING, SLANDERING OR OTHERWISE INTERFERING WITH PLAINTIFF AT HOME, AT WORK, THROUGH THIRD PARTIES, ON THE STREET, OR ELSEWHERE.

Also:

THE DEFENDANT SHALL IMMEDIATELY REMOVE ANY AND ALL POSTS, BLOGS, AND COMMENTS REGARDING THE PLAINTIFF, EITHER BY HER NAME, KATHRYN NARCISI, OR THE PSEUDONYM “FAILURE SWIFT”, BE IMMEDIATELY REMOVED FROM THE DEFENDANT’S WEBSITE AND ALL OTHER SITES ASSOCIATED WITH THE SAME.

Needless to say, not a single post has been removed. If anything, it's encouraged Kearney to dig deeper into Narcisi's past and seeming fraudulent activities.

All of this could have been avoided if the court had simply allowed Kearney to submit something in his defense -- or at least notified him and let him attend a hearing on the restraining order request. But the court didn't. It also didn't happen to notice Kearney resides in Massachusetts -- not Rhode Island -- so the court is a bit out of its jurisdiction. Still, attempted prior restraint is a bad look for judges who are supposed to stay within Constitutional boundaries when issuing orders.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community. Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis. While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, aidan kearney, christopher milea, defamation, due process, free speech, kathryn narcisi, prior restraint

Companies: turtleboy