Jon Michaels’ new book, Constitutional Coup: Privatization’s Threat to the American Republic

My friend and sometime co-clerk, UCLA law professor Jon Michaels, has a new book out from Harvard University Press — Constitutional Coup: Privatization’s Threat to the American Republic. You can read the introduction to the book here, but the following quote (from pp. 11-13) will give you a flavor of the argument:

This constitutional calamity is privatization’s evisceration of the administrative separation of powers — again, the often overlooked but nevertheless undeniable architecture that effectively constitutionalized twentieth-century administrative governance, restoring and renewing the framers’ commitment to separating and checking power through a mixture of democratic and juridical actors. In brief, today’s fusion of market and political power — this running government like a politicized business — has the effect of sidelining or defanging otherwise independent, expert, and truly mandarin civil servants and marginalizing the populist contributions of an otherwise empowered and diverse civil society. The fusion also has the effect, quite often, of funneling government responsibilities through private or essentially privatized corridors, far away from public scrutiny and legal constraints. All told, sovereign power is being concentrated in the hands of presidentially appointed agency heads and the private actors paid to do their bidding. The end result is an unprecedentedly potent and potentially abusive State, led by a largely unfettered executive capable of wielding concentrated sovereign power in a hyperpartisan or crassly commercialized fashion.

For those distressed by this recent turn of events, the framers’ commitment to checks and balances provided, and still provides, an answer. It provided an answer to constrain not only the First Congress but also the alphabet agencies arising out of the New Deal and World War II. That same commitment needs to be renewed today, to address the State-aggrandizing, power-concentrating challenges posed by twenty-first-century privatization.

Today is the operative word. One is reminded of the hopeful yet chilly words of Benjamin Franklin, when asked by an inquisitive Philadelphian what form of government the framers concocted: “A republic, if you can keep it.” Generations past have done their best to keep it. Now that it is our turn, the instant challenge is privatization. If we wait much longer, we’re certain to reach a tipping point, at which time reversing the privatization trend will prove next to impossible. This is true on legal, pragmatic, and even psychological levels.

Legally, the more privatization is allowed to continue apace without muscular constitutional pushback, the harder it will be for the courts to take late-arriving challenges seriously. Even if those challenges prove compelling, the courts’ hands may very well be tied as the federal landscape continues to be drastically and possibly inexorably altered by the forces of privatization and as a host of sticky cultural norms, instances of congressional acquiescence, and years of historical gloss render the privatized State constitutional by default.

Pragmatically, we will have hollowed out the government sector to such an extent that we may well lack the capacity, infrastructure, and know-how to reclaim that which has increasingly been outsources or marketized. Indeed, there is seemingly no other explanation for the State Department’s recent practice of renewing contracts with the notorious Blackwater firm after the Obama administration sanctioned Blackwater for illicit arms smuggling, after federal prosecutors brought murder charges against Blackwater employees, and after the American-backed governments in Baghdad and Kabul designated Blackwater employees as personae non gratae. Apparently, the United States had no viable in-house alternative.

And, psychologically, we will have done such a good job disassociating the public services we like from the government itself — and will have been doing that job for so long — that we’ll risk altogether forgetting the State’s sovereign, democratic mission. Indeed, the more we indulge the fiction of governmentless government, and the longer we enable those who demonize government workers, the harder it becomes to generate support, or even respect, for the actual public sphere and its role in the political economy.

It is therefore imperative to reverse course now: to “insource” State responsibilities that have long been privatized, to redeem the constitutionally legitimating project of the administrative separation of powers, and  to make clear that government’s legality and efficacy turn on it being a manifestly unbusinesslike institution. This is how we carry the commitment to separation of powers all the way forward.

I’m not done reading the book yet, but this is all very interesting, and there is plenty to  both agree and disagree with. I encourage anyone interested in the administrative state, separation of powers, or privatization to read this book, and I might write more about it in the future.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/12/jon-michaels-new-book-constitutional-coup-privatizations-threat-to-the-american-republic/

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Supreme Court clerks are not a particularly diverse lot

The Supreme Court in Washington. (J. Scott Applewhite/Associated Press)

A clerkship with a Supreme Court justice is among the most prestigious positions a young attorney can obtain. A series of articles in the National Law Journal documents how most Supreme Court clerks seem to be cut from the same cloth: Most clerks are white males and have attended one of a handful of elite law schools. Yet as the articles also show, the extent to which different justices achieve diversity in their chambers varies quite a bit — and perhaps not always in the ways one might expect.

Among the reports’ findings:

  • “Since 2005 — when the Roberts court began — 85 percent of all law clerks have been white. Only 20 of the 487 clerks hired by justices were African-American, and eight were Hispanic. Twice as many men as women gain entry, even though as of last year, more than half of all law students are female.”
  • “Since Chief Justice John Roberts Jr. joined the court in 2005, just 8 percent of the law clerks he’s hired have been racial or ethnic minorities; At the other end of the spectrum, 31 percent of Justice Sonia Sotomayor’s clerks have been non-white, making her chambers the most diverse.”
  • Since joining the Supreme Court in 1993, Justice Ruth Bader Ginsburg has hired only one African American clerk. (Further, as noted during her confirmation hearing, then-Judge Ginsburg never hired an African American clerk during her 13 years on the U.S. Court of Appeals for the D.C. Circuit.)
  • “While Ginsburg and Breyer have hired men and women in equal numbers, other chambers continue to be male-dominated. The court’s swing vote, Anthony M. Kennedy, has hired six times as many men as women as law clerks since 2005.”
  • Since 2005, Roberts and Justices Kennedy, Stephen G. Breyer and Elena Kagan have hired a majority of their clerks from two law schools, Harvard and Yale.
  • Justice Clarence Thomas has “hired from 23 different law schools since 2005, with one-third of his clerks coming from schools outside the Top 10 on the U.S. News and World Report rankings.”
  • A disproportionate share of clerks since 2005 clerked for a handful of appellate judges before their Supreme Court clerkships, including Judges Brett Kavanaugh and Merrick Garland on the D.C. Circuit, Judge J. Harvie Wilkinson III on the 4th Circuit, Judge Robert Katzmann on the 2nd Circuit, and Judge Alex Kozinski on the 9th Circuit.

 

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/12/supreme-court-clerks-are-not-a-particularly-diverse-lot/

‘Wife … had hung a Hello Kitty towel on her door’ — what am I missing here?

I came across a California family law case in a Westlaw query, and found this passage:

Husband testified to the following: He previously worked as a mechanical engineer for Boeing…. On June 14, 2014, Husband exchanged e-mails with Wife that he believed established their intent to divorce and legally separate. By then they were already sleeping in separate bedrooms.

[Footnote:] Realtor Lauren Cotner, who appraised the value of the house, testified both parties’ rooms had locks on them. The lock on Wife’s door made the house feel “like a fortress.” Wife slept in the master bedroom and had placed a “kitchen-size refrigerator” in it, and had hung a Hello Kitty towel on her door.

I get most of this, but what’s the relevance of the Hello Kitty towel? Is it some weird symbolism I’m not getting? Is it that no man would sleep in a bedroom with a Hello Kitty towel? What am I missing?

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/12/wife-had-hung-a-hello-kitty-towel-on-her-door-what-am-i-missing-here/

Why FDA regulations limiting e-cigarette marketing may cost lives and violate the Constitution

Earlier this year, Food and Drug Administration Commissioner Scott Gottlieb announced that the FDA would reevaluate and reorient its tobacco policies. Recognizing that the primary health threat from tobacco products comes not from nicotine, but from combustion, Gottlieb noted the role that “less harmful tobacco products” could play in reducing the death toll from cigarettes. He elaborated on the FDA’s new approach in an article for the New England Journal of Medicine.

Gottlieb’s comments were welcome — yet more is needed. Even with recently announced reforms, the FDA’s regulation of cigarette alternatives, such as electronic cigarettes, threatens to do more to harm than to help public health. It is likely unconstitutional to boot.

Despite reductions in smoking, cigarettes remain one of the leading causes of preventable death in the United States. Though many smoke for the nicotine, it’s not the nicotine that kills. Rather, it is the combustion of tobacco that is primarily responsible for smoking’s risk. E-cigarettes (and smokeless tobacco products) have the potential to satisfy smokers’ craving for nicotine at far lower risk. The available evidence suggests that e-cigarettes expose smokers (and others) to a fraction of the health risks posed by combustible tobacco. Yet as I discuss at length in this forthcoming paper, the harm reduction potential of e-cigarettes is hampered by federal regulation and the not-so-subtle suggestion from government officials that e-cigarettes are as dangerous as tobacco cigarettes. Federal regulatory measures and health pronouncements that discourage current smokers from trying e-cigarettes and other less-dangerous alternatives may hamper efforts to safe smokers’ lives.

FDA regulation of e-cigarettes is not only bad for public health but also is likely unconstitutional. Insofar as the federal Tobacco Act, and the FDA’s implementing regulation, prohibit product makers and sellers from making factually true statements about their products, they likely violate the First Amendment.

It is well-established that advertising, product labels and other forms of commercial speech are protected by the First Amendment. “The fact that speech is in aid of a commercial purpose does not deprive responded of all First Amendment Protection,” explained the Supreme Court in United States v. United Foods. Commercial speech may not receive quite the same level of protection as political speech, but the protection it receives is significant.

Under current law, restrictions on commercial speech are evaluated under the Central Hudson” test. Under this test, commercial speech is protected provided it concerns a lawful product and is not misleading. Restrictions on such commercial speech must be justified by a substantial governmental interest. In addition, such restrictions must directly advance the government interest asserted and cannot be more extensive than necessary to serve that interest.

In May 2016, the FDA deemed e-cigarettes to be regulated “tobacco products” under the Family Smoking Prevention and Tobacco Control Act of 2009 (a.k.a. the Tobacco Act). As a consequence, e-cigarette manufacturers and retailers are prohibited from informing consumers that e-cigarettes are less dangerous than combustible cigarettes. Such claims may be made only with the FDA’s approval, after submitting to a lengthy and costly approval process. In the meantime, straightforward factual claims — even claims that do no more than repeat public statements made by the FDA — are prohibited.

The Tobacco Act’s prohibition on the ability of producers to make factual statements about cigarette alternatives are quite sweeping. Under the act’s provisions concerning “Modified Risk Tobacco Products” (MRTP), producers of deemed products may not make commercial statements that “explicitly or implicitly” indicate that the product or its “smoke” “presents a lower risk of tobacco-related disease or is less harmful than one or more other commercially marketed tobacco products”; “contains a reduced level of a substance or presents a reduced exposure to a substance”; or “does not contain or is free of a substance.”

As interpreted by the FDA, a manufacturer’s claim that an e-cigarette “contains less nicotine” or is a “healthier alternative to smoking” is prohibited, unless the manufacturer first submits to a lengthy and costly process to be approved as an MRTP. Although several such applications have been submitted to the FDA, as of this writing, none have been approved. (The FDA keeps track of applications and orders here.)

To be clear, unless and until a manufacturer obtains approval to market a specific e-cigarettes as an MRTP, it cannot even repeat FDA statements about the relative risks of e-cigarettes in its advertising, such as that “the inhalation of nicotine (i.e. nicotine without the products of combustion) is of less risk to the user than the inhalation of nicotine delivered by smoke from combusted tobacco products” or that “several studies support the notion that the quantity of toxicants [in e-cig vapor] is significantly less than those in tobacco cigarettes and tobacco smoke and similar to those contained in recognized nicotine-replacement therapies.”

The Tobacco Act’s MRTP provisions are not the only way in which tobacco regulation stifles truthful claims. According to the FDA, manufacturers of e-cigarettes and other tobacco cigarette alternatives may not make “therapeutic” claims about their products unless and until they obtain FDA approval as medical drugs or devices. Here again, the prohibition is construed broadly.

According to the FDA, were an e-cigarette manufacturer to inform consumers that its products are an alternative (and less dangerous) way for smokers to satisfy their nicotine cravings, this would be a “therapeutic” claim. As the FDA explained in a recent Federal Register notice, “statements related to quitting smoking generally create a strong suggestion that a product is intended for a therapeutic purpose.” Therefore such claims cannot be made without FDA approval. Here again, producers and vendors are prohibited from repeating the FDA’s own language. While the FDA has admitted “there is emerging data that some individual smokers may potentially use ENDS to transition away from combustible tobacco products,” e-cigarette manufacturers may not tell this to consumers of their products.

The FDA’s position — and the implicit premise of the relevant Tobacco Act provisions — is that producers must be barred from making statements that might mislead consumers. Should an e-cigarette maker proclaim that vaping is less dangerous than smoking, for example, consumers might mistakenly believe that e-cigarettes are completely safe. Under existing First Amendment jurisprudence, however, such potential for consumer confusion is insufficient to justify restrictions on truthful speech.

In Thompson v. Western States Medical Center the Supreme Court expressly “rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.” Instead of suppressing such speech, the court explained, the government must pursue alternatives, such as mandating curative statements or disclaimers. The problem of potentially harmful or misleading speech is to be cured by more speech. As the U.S. Court of Appeals for the D.C. Circuit explained in Pearson v. Shalala, “when government chooses a policy of suppression over disclosure — at least where there is no showing that disclosure would not suffice to cure misleadingness — government disregards a ‘far less restrictive’ means.”  Only if the government can show that such disclaimers are insufficient may limitations on truthful claims be considered.

As the court further explained in Rubin v. Coors Brewing Co., claims that truthful speech is inherently and incurably harmful or misleading require more than “mere speculation or conjecture.” To justify limitations on factual claims, the government “must demonstrate that harms it recites are real and that its restrictions will alleviate them to a material degree.” So, for instance, the FDA would have to be able to “demonstrate” that limiting truthful claims about the relative risks of e-cigarettes is likely to harm public health. Given that consumers are more likely to overestimate, than to underestimate, the relative risks of e-cigarettes, this is a burden the FDA would have a hard time meeting. Nonetheless, a federal district court was dismissive of e-cigarette makers’ First Amendment claims in a recent decision rejecting challenges to the FDA’s deeming rule.

The government has a significant interest in ensuring that producers do not misrepresent their products or make unsubstantiated product claims. But under current First Amendment jurisprudence, this does not allow the government to prohibit truthful claims about otherwise legal products. If the FDA is concerned that e-cigarette manufacturers might oversell their products’ benefits or mislead consumers, it can require disclaimers and qualifications, much as is done with nutritional supplements. What the FDA cannot do is simply require manufacturers to be silent. Such a position is contrary to the First Amendment — and risks undermining public health.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/12/why-fda-regulations-limiting-e-cigarette-marketing-may-cost-lives-and-violate-the-constitution/

‘Beware of the Internet and Facebook. You might find yourselves paying damages to someone.’

Last week’s panel opinion in Breen v. Holmes (La. Ct. App. Dec. 7, 2017) is a pretty standard application of libel law principles (I quote it at length below). Some online commenters were arguing that a woman (Kacie Breen) who shot and killed her husband should have been charged with murder, despite her claims of self-defense. The court held that, in context, the statements were opinion evaluating the published evidence, and thus couldn’t form the basis of a defamation claim. But, to my surprise, one of the judges, Judge John Pettigrew, added a short concurrence, saying in part:

I must express my concerns about the defendants’ statements. I suggest the statements were loose, gossipy, and reflected a lynch-mob mentality. The citizens of Louisiana should beware of the Internet and Facebook. You might find yourselves paying damages to someone.

That seems to me quite odd, especially since the judge joined a decision that concluded that the “loose,” “gossipy” and allegedly lynch-mobby statements were legally nonactionable opinion. If the judge is warning people against expressing their opinions, that strikes me as quite troubling — and if he’s warning them against making false factual assertions (which would indeed be libelous), that warning seems misplaced here (especially absent some clearer explanation of what he’s warning about).

In any case, here’s the quick summary of the factual background:

On March 1, 2015, Kacie Magee Breen shot and killed her husband, Wayne Breen, a St. Tammany Parish physician. She maintains she was defending herself from an attack and reasonably believed she was in imminent danger of death or great bodily harm. Following the shooting, local media attention focused on Dr. Breen’s death, the St. Tammany Parish coroner’s classification of the death as a homicide, the criminal investigation that resulted in Breen not being arrested, charged, indicted, or prosecuted for her husband’s death, and Breen’s actions related to Dr. Breen’s estate.

In January 2016, Breen filed suit alleging the defendants defamed her in internet posts commenting about events before, at the time of, and after Dr. Breen’s death. She claimed all the statements about her, including those calling her a murderer, were false and caused her shame, humiliation, discomfort, loss of reputation, public ridicule, loss of income, and mental anguish.

And here’s the court’s legal analysis:

[“]In determining whether an expression is a statement of fact or opinion under the common law, words must be read in their context. Words which, taken by themselves, would appear to be a positive allegation of fact, may be shown by the context to be a mere expression of opinion or argumentative influence…. In order for a statement to be defended as fair comment it must be recognizable by the ordinary reasonable person as opinion and not as a statement of fact.[“] …

The claims against Arndt and Maestri are premised on single internet posts attributed to each of them. Neither post is dated, but the record establishes they were made before Breen filed suit on January 6, 2016, which was less than one year after Dr. Breen’s death on March 1, 2015. The record additionally establishes that during that year, the media focused continuous attention on the shooting, the classification of the death as a homicide by the coroner, the claim that Breen acted in self-defense during a violent altercation, the legal “battle” between Breen and Dr. Breen’s heirs over his estate, the removal by Breen of items from Dr. Breen’s office, the criminal investigation into Dr. Breen’s death, protests expected at the courthouse related to these matters, the decision not to arrest Breen, court filings recounting the self-defense claim, a civil wrongful death suit against Breen, and this defamation suit.

The allegedly defamatory statement attributed to Arndt is:

I guarantee that she had this plot in the makings for sometime. There is no doubt that she staged all the abuse charges against him knowing she could use it later. She is a wicked person.

Arndt averred in her affidavit that she had known Dr. Breen for twenty-one years, believed he saved the lives of her daughter and grandchild, and was sad about his death. She joined a Facebook group called “Rest In Peace Dr. Breen,” for people grieving Dr. Breen’s death. She recalled reading that the coroner classified Dr. Breen’s death as a homicide and expressed frustration with the decision not to arrest Breen. Arndt stated she joined what she believed was a closed Facebook group called “Justice For Dr. Breen,” for people angry and upset that Breen was not arrested and who wanted to discuss whether Breen should be arrested and prosecuted. Arndt averred that any comment she posted was strictly her opinion that Breen should be arrested.

The allegedly defamatory statement attributed to Maestri is:

The more I learn about this tragedy, the more I am convinced that Dr. Breen’s death was premeditated murder and not manslaughter in a moment of passion. How, in God’s name, has this woman avoided arrest? ? ? My most sincere sympathy to the Breen children that they must suffer further as they grieve the loss of their father.

Maestri averred in her affidavit that she had known Dr. Breen for two years, and considered him a source of strength and support for her family. She stated she posted her condolences to his family on the funeral home’s grief page, where she also read about the closed Facebook group called “Rest In Peace Dr. Breen,” for people grieving the death of Dr. Breen. Maestri stated she believed the purpose of the group was to read about and try to understand what happened to Dr. Breen.

Maestri also stated she joined the Facebook group called “Justice For Dr. Breen,” which helped her understand the loss of Dr. Breen. She indicated she is still upset Breen was not arrested and outraged by what she believes is an injustice. She explained that any comment she posted was her opinion about Dr. Breen’s death and whether Breen should be arrested and prosecuted….

In making their statements, neither Arndt nor Maestri represented that they are a legal authority on the distinctions between the grades of criminal homicide and the legal definition of justifiable homicide. Nor does either statement imply that the speaker is privy to undisclosed facts. Rather, the evidence establishes that the statements were made against a backdrop of continuous media reports fixing the public’s attention on these issues, specifically whether Breen should be criminally prosecuted for killing her husband, based on the facts being reported.

When considered in context, a reasonable person considering Arndt’s and Maestri’s statements in the particular forums in which they were made would not believe them to be anything other than the subjective opinions of Arndt and Maestri expressing disagreement with Breen’s claim that she acted in self-defense and their criticism of the decision not to criminally prosecute her. Neither statement is an actionable defamatory statement. Rather, both are constitutionally protected statements of opinion….

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/12/beware-of-the-internet-and-facebook-you-might-find-yourselves-paying-damages-to-someone/

“For at least six reasons, the motion [for emergency injunction against allegedly defamatory web sites] is DENIED”

From Friday’s federal district court decision in Kazal v. Price (M.D. Fla. Dec. 8, 2017), which I thought was worth quoting in detail, and which seems a nice counterpoint to the Ohio state court Barley House injunction:

The latest spat in a protracted dispute between several Australian businessmen, this action involves (at least) six actions on two continents. Four of the Kazal brothers sue Matthew Price, a former employee of a company owned by Australian businessman Rodric David, for tortious interference with a business relation and for intentional infliction of emotional distress. The complaint alleges that Price runs five websites that host “defamatory” and “untrue” content about the Kazal brothers. [Footnote: Charifkazal.com, kazalfamilytruth.com, karlkazal.com, adamkazal.com, and tonykazal.com. Two of the websites (kazalfamilytruth.com and karlkazal.com) appear defunct.]

Background

The websites, which mostly re-publish news articles from the Australian media, detail a tumultuous history between the Kazal brothers and David. The story begins several decades ago, when the eight Kazal brothers emigrated from Lebanon to Australia. While two brothers opened a restaurant in Sydney, another brother (Tony) worked for several years for the royal family in the United Arab Emirates. According to one story from the Sydney Morning Herald, Tony and Karl “leveraged their status” with “Gulf diplomats” to arrange meetings between the Gulf royalty and Australian businessmen.

Meanwhile, other Kazal brothers opened restaurants and bars in historic buildings owned by the Australian government and leased to private investors. In one instance, the Kazals reportedly convinced the Australian government to spend more than six million dollars renovating one of the buildings. According to the Sydney Morning Herald, linked on Price’s websites, an unlawful bribe from the Kazals to a government official secured the government’s agreement to pay for the renovation. Several newspapers report that Australia’s Independent Commission against Corruption later charged Charif Kazal with bribery.

While several Kazal brothers grew the restaurant and bar business, another brother partnered with David, the Australian businessman. David and Kazal purportedly agreed to buy an unprofitable waste-recycling operation in Sydney and to invest in the operation’s turn-around. One exposé from a Sydney paper reported that David spent several million dollars on the waste operation, but the Kazal family allegedly failed to pay its share (according to the exposé, Libya’s sovereign investment fund promised the Kazals $2.5 million; for reasons not explained in the story, the “Gaddafi-controlled fund” reportedly never paid the money). After the Kazals sued David in the Cayman Islands over the failed investment, a Cayman judge reportedly found that David, whom the Kazal brothers accused of attempting to “steal” the Kazals’ half of the company, breached a fiduciary duty and that the Kazal brothers breached a promise to finance part of the waste operation.

In addition to the Cayman litigation, actions involving David (or David’s company, Thunder Studios), Price, and the Kazals pend in the Central District of California, the Superior Court of Los Angeles, and the Federal Court of Australia.

While David and a Kazal brother litigated in the Cayman Islands over the waste operation and another failed co-investment in Dubai, an Australian newspaper scrutinized another Kazal brother’s purported connection to Hezbollah. Tony Kazal purportedly agreed to convert several million units of an unspecified African currency into American dollars in exchange for a “lucrative commission.” A man in Beirut allegedly gave Kazal a bag of cash. Citing an investigation by Lebanese police, the Sydney Morning Herald reports that both the man and the money belong to Hezbollah.

The Middle District of Florida recently closed an action in which Adam Kazal sued Price and moved in an “emergency ex parte application” for leave to depose Price on less than a week’s notice. The application states that the Australian court ordered Kazal not to “make certain statements regarding David,” but Kazal purportedly violated the order. The Australian court held Kazal in criminal contempt and sentenced Kazal to eighteen months of imprisonment, which sentence an Australian appellate court affirmed in part and reversed in part. Appealing a second time, Kazal claimed that “inflammatory statements” on the websites created by Price infuriated Kazal and caused Kazal to violate the Australian court’s order….

[T]he plaintiffs claim that Price posted “defamatory” and “untrue” content on the websites in an intentional effort to inflict emotional distress and to interfere with an unspecified business relation. Also, the plaintiffs allege that schoolchildren tease or mock the children of Tony Kazal about the purported connection to Hezbollah and about the purported criminality. Moving for a temporary restraining order and for a preliminary injunction, the Kazals request that an order direct Price to “immediately remove access to and/or the content” from the websites and that an order prohibit Price from “making further statements … that the Plaintiffs are members of a terrorist organization or otherwise involved in criminal or fraudulent activities.”

[Libel law and First Amendment analysis]

… Although the plaintiffs nominally sue for intentional infliction of emotional distress and for tortious interference with a business relation, the crux of the plaintiffs’ claims is defamation. Excluding jurisdictional and prefatory paragraphs, more than half of the complaint alludes to Price’s allegedly “false,” “untrue,” or “defamatory” statements. If true, the reporting from the Australian press might vindicate the content of Price’s websites. “Truth, of course, is a complete defense to a charge of libel.” And nothing appears “extreme” or “outrageous” about a defendant’s re-publishing an accurate news story (even though the story publicizes unflattering information). [Footnote: Again, this order decides nothing about the accuracy of the website or the newspaper reports.] The sparse record, which comprises an unverified complaint, the Price deposition, and several conclusory affidavits that deny the newspaper reports, precludes finding at this time that the plaintiffs likely will succeed on the merits….

Also, the plaintiffs fail to explain the mechanism by which an injunction against Price’s re-publishing news stories from the press remedies the plaintiffs’ alleged injuries. At least half a dozen newspaper stories published by several newspapers report the information about which the plaintiffs sue (again, Price’s websites mostly re-publish the newspaper stories, although the websites contains several so-called “memes” that appear nowhere in the newspapers).

Even if an injunction prohibits Price’s speaking about the Kazal family, the information about the Kazal family remains easily accessible elsewhere on the Internet. Because the plaintiffs fail to show clearly that an injunction against Price’s speech remedies an imminent and irreparable injury, the request for a preliminary injunction warrants denial….

An injunction issues only if the prospective harm to the moving party from denying the injunction outweighs the harm to the non-moving party from enjoining specific conduct. According to the plaintiffs, schoolchildren tease or mock the children of plaintiff Tony Kazal about the reported criminality and about the reported connection to Hezbollah. Also, the plaintiffs attribute to Price’s websites a “loss of business.” An affidavit from the Kazal family’s accountant claims that the websites “stilted the growth trajectory” of the family business but declines to identfy a business transaction that failed as a proximate result of the websites. Based on these purported harms, the plaintiffs claim that the balance-of-equities favors an injunction.

Insisting (without citation to anything other than the plaintiffs’ conclusory affidavits) that the websites contain falsities, the plaintiffs state that Price will suffer “absolutely no harm” if an injunction restrains Price’s speech. But a long line of Supreme Court decisions explains that a “prior restraint[ ] on speech and publication [is] the most serious and least tolerable infringement on [a person’s] First Amendment rights.”

Under the First Amendment, a person maintains a weighty interest in free speech — an interest so great that the judiciary routinely refuses to enjoin speech before the final adjudication of the defendant’s liability. See, e.g., Gunder’s Auto Center v. State Farm Ins., 617 F.Supp.2d 1222 (M.D. Fla. 2009) (denying the plaintiff’s request for a preliminary injunction in a defamation and tortious-interference action); Bollea v. Gawker Media, LLC, 2012 WL 5509624 (M.D. Fla. Nov. 14, 2012) (Whittemore, J.) (denying the plaintiff’s request for a preliminary injunction in a defamation and IIED action and explaining that “[i]n all but the most exceptional circumstances, an injunction restricting speech pending final resolution of constitutional concerns is impermissible”); Roca Labs, Inc. v. Consumer Opinion Corp., 2014 WL 6389657 (M.D. Fla. Nov. 16, 2014) (denying the plaintiff’s request for a preliminary injunction in a defamation and tortious-interference action). In sum, Price’s First Amendment interest weighs heavily against a preliminary injunction, and the plaintiffs fail to show clearly a balance-of-equities that favors restraining Price’s speech.

[Rule 65]

The plaintiffs’ request for a temporary restraining order and preliminary injunction violates at least three requirements in Rule 65, Federal Rules of Civil Procedure. First, under Rule 65(b)(1)(B), the attorney for the party that requests a temporary restraining order must “certif[y] in writing any efforts made to give notice and the reasons why it should not be required.” The plaintiffs’ attorneys fail to submit an affidavit certifying an effort to notify Price about the motion and fail to explain the necessity for an ex parte order.

Second, Rule 65(d)(1) requires that the preliminary injunction “state its terms specifically” and “describe in reasonable detail — and not by referring to the complaint or [an]other document — the act or acts restrained.” … [T]he specificity requirement in Rule 65(d) ensures that the enjoined party — who faces a punitive consequence for willfully violating an injunction — knows exactly what he can and cannot do. A recent decision explains:

[A]n injunction must describe the ‘restrained or required conduct’ in a manner that permits a judge asked to enforce the injunction to speedily and confidently determine whether some oppugned conduct offends the injunction and, if so, to design, impose, and enforce a remedy with assurance that any violation is contrary to the manifest and unmistakable terms of the injunction and is, therefore, knowing and willful. As an injunction increases in ambiguity and breadth and taxes increasingly a judge’s interpretative ability, the inclination and legal authority of a judge either to require compliance or to punish non-compliance decreases at least proportionally.

The proposed injunction requires Price to remove from the websites “false, malicious, or harmful information stating that Plaintiffs are associated with terrorism, criminal misconduct, or fraud.” Also, the proposed injunction orders Price to “refrain from making further statements” about those topics.

Replete with mischievously broad phrases susceptible to more than one reasonable interpretation, the requested injunction fails to adequately apprise Price exactly what he can and cannot say. For example, the proposed injunction offers no objective method to determine what constitutes “harmful information” and risks the possibility that a trivial comment, if subjectively offensive to a plaintiff, might violate the injunction (even if an impartial party familiar with the litigants’ circumstances would find the comment innocuous). Because the requested injunction fails to specify exactly what Price can and cannot say, the plaintiffs’ motion warrants denial.

Conclusion

For at least six reasons, the motion … for a temporary restraining order and preliminary injunction is DENIED. The plaintiffs fail to show a “substantial likelihood” of success on the merits, fail to show an imminent and irreparable injury, and fail to show a balance-of-equities that favors the injunction. Also, the requested injunction violates the requirements in Rule 65 that the movant’s attorney certify an effort to notify the non-moving party about the requested injunction, that the movant’s attorney explain why notice is impracticable, and that the injunction describe with specificity the enjoined conduct.

Show-Cause Order

By submitting an “emergency” motion for a temporary restraining order at 4:20 p.m. last night, the plaintiffs demanded the district court’s immediate attention. A review of the record in this action and the other Middle District of Florida action shows nothing approaching an imminent and irreparable harm that requires enjoining the defendant’s speech without permitting the defendant an opportunity to respond.

In fact, the due-process concerns attendant to an ex parte restraint on the defendant’s speech far outweigh the incremental harm, if any, that would result from the continued operation of the websites while the defendant responds to the motion for a preliminary injunction. No later than 5 p.m. on DECEMBER 15, 2017, attorneys Michael Whitt and Minyao Wang must explain in a single paper no longer than ten pages why an order should not require Whitt and Wang to remit $1000 each to the district court as a sanction for filing an unwarranted “emergency” motion.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/11/for-at-least-six-reasons-the-motion-for-emergency-injunction-against-allegedly-defamatory-web-sites-is-denied/