Prior Restraint & Online Defamation: Is It Constitutional?

Both parties in a Texas defamation lawsuit are hoisting gaudy belts over their heads. The case is Kinney v. Barnes, and the issue is prior restraint as it relates to defamation remedy injunctions. And yes, The Big Lebowski plays a role.

Both Sides Claim Victory In Employment Defamation Lawsuit Kinney v. Barnes

The Electronic Frontier Foundation, in conjunction with two free speech scholars, submitted an amicus brief in response to the lower court’s Kinney v. Barnes decision.

In a blog post, the EFF expressed its delight with the appeal ruling:

“The court…not only rejected the Internet-is-different argument, it took the exact opposite position, emphasizing the role of the Internet ‘as an equalizer of speech and a gateway to amplified political discourse.’”

The court ruled that “post-trial injunctions are prior restraints” – meaning, it’s unconstitutional for a judge to forbid a reporter or blogger from permanently talking about a person, as punishment for a defamation act.

In its amicus brief, Team EFF argued that permanent injunctions should never be applied as a remedy in defamation cases because slander and libel are largely contextual, and “a statement that it is defamatory in one context may not be in another.”

The Issue of Prior Restraint As It Relates To Online Defamation Lawsuits

prior restraint and defamation law
A TX defamation lawsuit turns on the issue of prior restraint.

Robert Kinney sued his former employer, Andrew Harrison Barnes, over bribery accusations posted online. The current issue at hand is whether or not a permanent injunction (e.g., banning Barnes from mentioning Kinney online ever again) can and should be a remedy for libel. It’s a fundamental defamation law question, because the Constitution protects against “prior restraint” — laws and legal punishments that universally hinder (restrain) someone or something from voicing an opinion on a topic, person or event.

The Employment Defamation Lawsuit Must Go On

At this point, Kinney can move forward with his defamation lawsuit against Barnes. Ultimately, he hopes to collect damages and get a court order forcing Barnes to remove the proved defamatory statements from the Web.

Both sides agreed that the defamatory material should be taken down, because as an EFF spokesperson put it: defamatory content doesn’t contribute to the “marketplace of ideas.”

Tip Of The Hat: Coen Brothers

Much to the delight of the Internet – and arguably in an attempt to rack-up some Reddit karma – in the opinion, Justice Debra Lehrmann snuck in a Walter Sobchak (The Big Lebowski) quote: “For your information, the Supreme Court has roundly rejected prior restraint.”