"Prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."
- U.S. Supreme Court Associate Justice William Joseph Brennan, Jr. (Wednesday, June 30, 1976)
In general, the State of Florida does not permit plaintiffs in defamation actions to receive any form of injunctive relief.
It has been decreed by both the United States Supreme Court and Florida's appellate courts that temporarily enjoining speech prejudges the outcome of a case.
You would expect any attorney who files a defamation action to know and understand the case law that governs this critically important aspect of due process.
Sadly, though, there always will be some who try to hoodwink judges and shut down speech even before a jury has been impaneled, a single piece of discovery has been sought,
or any witnesses have been deposed.
It's heinous but it happens more often than you might believe.
The first thing to keep in mind if you are served with an edict preemptively shutting down your First Amendment rights to freedom of expression, no matter how unjust, is that you still
must comply with any court order. The consequences of disobeying a court order are always dire.
If the plaintiff succeeds in suckering a weak trial judge into granting injunctive relief in your defamation action, you must immediately, or in other accordance with the
terms of the order, stop making or stop publishing the statements alleged to be defamatory.
Next, you will want to file a Motion To Dissolve the order.
The case law you will need to cite in your motion appears below. Be sure to fully incorporate it in your motion.
File the motion and set a hearing on the judge's calendar as quickly as possible.
You'll need a special set as motion calendar is not the appropriate forum for a hearing to dissolve a temporary injunction.
Be sure to allow enough time to make your points ‑‑ and print out copies of your motion and the case law for both the judge and opposing counsel.
If the trial judge does not recognize his error and dissolve the injunction at your hearing, you are absolutely entitled to file an appeal. Let's hope the need for an appeal is never necessary.
Trial judges only are permitted to award injunctive relief when it comes to enjoining speech under very rare, limited, and extraordinary circumstances.
Chief among those instances is when national security is placed at risk.
Of course, it's nearly impossible to imagine how a Yelp review of a local coffeehouse could
endanger the country at-large, but, as you should appreciate by now, it's also
about equally impossible to predict the actions of a desperate, unprepared, and incautious attorney.
Another set of circumstances under which it would be legally permissible for a trial court to allow temporary relief in a defamation action is when another civil infraction is
"The general rule is that [there must be] some other independent ground for the invocation of equitable jurisdiction"
is how it was articulated by the
First District Court of Appeal of Florida in
Murphy v. Daytona Beach Humane Society, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965)
Here is the rest of the
vital case law that makes clear injunctive relief is simply not an option for trial judges when it comes to matters of defamation, both in federal and Florida courts.
Animal Rights Found. of Fla., Inc. v. Siegel, 867 So.2d 451, 454 (Fla. 5th DCA 2004)
Murphy v. Daytona Beach Humane Society, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965):
"Florida courts have long held that temporary injunctive relief is not available to prohibit the making of defamatory or libelous statements because there is an adequate remedy at
law for libelous or defamatory statements, namely, an action for damages."
Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla.1949) (recognizing First Amendment concerns triggered by temporary injunction);
Murphy v. Daytona Beach Humane Soc'y, Inc., 176 So.2d 922, 924 (Fla. 1st DCA 1965);
Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So.2d 608, 610 (Fla. 5th DCA 2007) (recognizing temporary injunction forbidding speech constitutes a prior restraint) (citing
Alexander v. United States, 509 U.S. 544, 550 (1993)):
"A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First Amendment concerns."
Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976):
"[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."
Patterson v. Colorado, 205 U.S. 454, 462 (1907), aff'd, 303 So.2d 326 (Fla.1974):
"Freedom from prior restraint upon speech and press extends to false, as well as true statements."
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975):
"[A] free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand."