Prior Restraint Lone Star Style

I suppose it’s better than “frontier justice,” but a recent case in Texas has some troubling First Amendment implications. The case concerns an escalating misunderstanding between a lawyer and former client over a watch. And it’s not about billable hours. The lawyer, Michael Baumer, allegedly accepted a watch from the client, Scott Morris, as his fee for legal services. Morris, however, claimed that the watch was just “security for payment” and not payment. So when Morris asked Baumer to return the watch, trouble began. Baumer said the watch was his and Morris accused him of theft. In addition, Morris launched a multi front attack on Baumer, which included filing a complaint with the Texas State Bar Association and creating Web sites with the Domain names www.michaelbaumer.com and www.michaelbaumer.info. The Web sites cautioned people that Baumer “reneged, lied and stole” from Morris. Baumer filed a lawsuit and asked for a temporary injunction to stop Morris from publishing the Web sites and otherwise making false statements about him. The court granted the request. And therein lies the First Amendment issue. Because the court’s order doesn’t just stop Morris from using Baumer’s name in a URL. It prohibits Morris from: “interfering, disparaging, making false statements both oral and written, attacking, slandering, libeling or tortuously commenting upon [Baumer], [Baumer’s] business and [Baumer’s] reputation.” There are at least a few problems with the court’s order. First, the First Amendment generally prohibits courts from imposing a “prior restraint.” That is, a judge cannot order, in advance, that someone not say something. The remedy for libel is damages, and the damages can be decided only after a trial where the actual statements are considered. A prior restraint order shuts the defendant up and may prohibit non-actionable speech. Which brings us to problem number two with this particular order. On its face, it prohibits perfectly lawful speech. For example, it prohibits Morris from “disparaging” Bauman. But it’s okay to disparage people, so long as it’s true or just opinion. If someone says I’m ugly or lazy, that’s disparaging, but I can’t sue them for it. And a court can’t in advance tell them not to say it. But that’s exactly what this order does. I feel sorry for Mr. Baumer, and I am sure the court does as well. But that doesn’t mean it can throw out the First Amendment.