7 ms·

"you can’t get an injunction to prevent someone from publishing something." You can't, in theory. In practice this sort of thing happens all the time. I had a

"you can’t get an injunction to prevent someone from publishing something." You can't, in theory. In practice this sort of thing happens all the time. I had a judge issue a clearly unconstitutional order limiting my speech (there was no action on my part leading up to this, it was a broad order applying to more than just me). My lawyer's take was that while it was clearly not allowed, it wasn't particularly important so best to just ignore it. It's really, really common.

dv_dt 5y ago
That makes we wonder how many essentially invisible to the public cases this kind of restraint we have in the system. It seem like all it takes is a plausible legal theory that could be dragged out combined with enough financial clout to make the defendant give.
- throwaway09223 5y ago
  This same judge said something along the lines of "there are no limits on my ability to issue orders until an appeals court overturns them." He was keenly aware that the issue wasn't significant enough to appeal and that his power was essentially unchecked. Lawyers are very aware of this dynamic.
  - daenz 5y ago
    This is why it is so important to have wise judges that are held to a very high moral standard.
    - shadowgovt 5y ago
      ... and, in jurisdictions that allow it, for the public to bother to research judges and vote them in our out of office.
      - dv_dt 5y ago
        In an area where I can vote for judges, I do google searches on all the candidates and rarely get good information. If you’re lucky you can get some very rudimentary assessment of if they have any legal background at all. But to really research a judge candidate I think would take access to a legal case database and a fairly sophisticated understanding of law, and far too much time.
        pessimizer 5y ago
        And don't forget the part where you have to get the majority of your neighbors to do the same.
        fires10 5y ago
        I am not a fan of voting for judges. Judges should be determined by technical merits and skills more like hiring a developer. This I think would be better handled by having a diverse group of judges routinely review all decisions by a judge and issuing corrective actions against the judge. This review should be done periodically and not require an appeal.
        Spooky23 5y ago
        I disagree. Attorneys are a fairly tight group in general that rely on peer opinion to get jobs. Nobody is going speak about about Judge A because the political machinery and peer pressure are very powerful. When Judge B rats out Judge A, all of the sudden those appellate court opportunities or various other lucrative appointments suddenly are out of reach. Judicial elections are a good way to get bad judges out and mediocre or better judges get to mostly do their thing. The places where the broader political environment is corrupt are no more corrupt than if judges were appointed. There’s the benefit with an election that the local party leaders can just opt to not support a bad judge versus making a decision to oppose him. If any change were to be made, I think making the clerks protected civil service employees would probably blunt the judges power, particularly if cousin Rufus get appointed to be county judge because he’s drinking too much at the law firm.
        5y ago
    - jdasdf 5y ago
      No, this is why it's important to have checks and balances against unrestrained judicial power. These checks and balances must include legal as well as practical costs and difficulties in having those orders implemented. The system should assume malice on all parties, and work accordingly.
      - daenz 5y ago
        The checks and balances here is the appeals process, which fails when the cost of appealing isn't worth it. It will always be the case where a judge can calibrate a decision to be under the cost of appealing. Which is why it is important to have judges be moral and wise...who don't let their egos get in the way and restrain themselves, instead of forcing you to pay any cost to check them.
        whatshisface 5y ago
        There could be a system that punished judges for overturned rulings and rewarded people who put in the effort to overturn them.
    - BurningFrog 5y ago
      But "who judges the judges?", to paraphrase the ancient wise question.
daenz 5y ago
If you feel comfortable elaborating, can you explain broadly the purpose for the judge's order? I have heard stories of judges doing things like that during the time period of a divorce or custody battle.
- throwaway09223 5y ago
  I'm not going to elaborate other than to say my speech was restrained due to someone else's actions, but family court is definitely an area where common practice has strayed very, very far from anything resembling constitutionality. One such example: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/30/first-amendment-challenge-to-broad-gag-order-on-family-court-litigants/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
  - xeromal 5y ago
    You can't bring up an anecdote as a counterpoint then refuse to explain the anecdote. It's a bit unfair. Edit: someone posted the rules that says we should accept people's comments in good faith. I'll try to do that. Leaving this comment for posterity.
    - borski 5y ago
      Sure they can, if: a) it might get them in legal hot water, or b) it is personal and they don’t want to get into it. You’re not owed anything by anyone here, and they did bring up an example about family court and link to an article about it. :)
      - xeromal 5y ago
        Seems like a lame way to bring up an example to me.
        wizzwizz4 5y ago
        I disagree, but fair enough. Doesn't mean any of us are entitled to elaboration, though.
shadowgovt 5y ago
It's more that the bar is extremely high, but yes, prior restraint on speech is not impossible. There has to be a direct through-line from the speech itself to probable irreparable harm to the beneficiary of the restraint. "Dear mobsters, this is the address where the FBI has sequestered a witness" is around the place the bar is. "That report might be defamatory to a corporation because we can argue it is untrue" is nowhere near the bar (truth is an affirmative defense, and the possible harm is reconcilable in law via monetary compensation and damages).
lettergram 5y ago
Was about to say something similar. FISA court orders, family court, settlement agreements, arbitration, civil lawsuits, criminal trials, etc There are so many different ways you can be “gagged” it’s very common. There’s a reason they tried to get the publication stopped - because it often works.
- datavirtue 5y ago
  And then you publish anyway to prove you are a "real American." (TM)
  - pueblito 5y ago
    Rights are like trademarks, if you don’t defend them aggressively then you’ll lose them
    - ajsnigrutin 5y ago
      Sadly, there are many movements against free speech, specially in the usa, because some people might say something, that someone doesn't want to hear.
JumpCrisscross 5y ago
Family court telling a father not to tweet mean things and any court telling a journalist, with a track record of publishing, not to publish, are clear and separate things.
- pyuser583 5y ago
  Yes, one violates freedom of the press, and the other violates freedom of speech. Both are protected by the first amendment.
  - FloNeu 5y ago
  - thaumasiotes 5y ago
    No, they both violate freedom of the press.
    - smorgusofborg 5y ago
      No, only one violates the generally accepted freedoms of the press: https://en.wikipedia.org/wiki/Public_figure https://en.wikipedia.org/wiki/Public_figure
      - thaumasiotes 5y ago
        Legally they are the same action, and they obviously violate the same laws. Specifically, they violate the prohibition on restricting someone's freedom to engage in the mass-production of speech, which is known as "freedom of the press". What are you trying to say with the public figure link?
        pyuser583 5y ago
        There’s a very different case history for “freedom of the press” than “freedom of speech.” Legally, they’re different. “Freedom of the press” has focused on the need for an informed public and institutional autonomy of the press. It is a public, not private, right. The freedom of the press also has a commercial element. It’s controversial to say “corporations have freedom of speech.” It uncontroversial and obvious that corporations have freedom of the press. “Freedom of speech” has focused on individual speakers. There’s a public element, but private speech is still incredibly important.

dv_dt 5y ago

That makes we wonder how many essentially invisible to the public cases this kind of restraint we have in the system. It seem like all it takes is a plausible legal theory that could be dragged out combined with enough financial clout to make the defendant give.

throwaway09223 5y ago
This same judge said something along the lines of "there are no limits on my ability to issue orders until an appeals court overturns them." He was keenly aware that the issue wasn't significant enough to appeal and that his power was essentially unchecked. Lawyers are very aware of this dynamic.
- daenz 5y ago
  This is why it is so important to have wise judges that are held to a very high moral standard.
  - shadowgovt 5y ago
    ... and, in jurisdictions that allow it, for the public to bother to research judges and vote them in our out of office.
    - dv_dt 5y ago
      In an area where I can vote for judges, I do google searches on all the candidates and rarely get good information. If you’re lucky you can get some very rudimentary assessment of if they have any legal background at all. But to really research a judge candidate I think would take access to a legal case database and a fairly sophisticated understanding of law, and far too much time.
      - pessimizer 5y ago
        And don't forget the part where you have to get the majority of your neighbors to do the same.
      - fires10 5y ago
        I am not a fan of voting for judges. Judges should be determined by technical merits and skills more like hiring a developer. This I think would be better handled by having a diverse group of judges routinely review all decisions by a judge and issuing corrective actions against the judge. This review should be done periodically and not require an appeal.
        Spooky23 5y ago
        I disagree. Attorneys are a fairly tight group in general that rely on peer opinion to get jobs. Nobody is going speak about about Judge A because the political machinery and peer pressure are very powerful. When Judge B rats out Judge A, all of the sudden those appellate court opportunities or various other lucrative appointments suddenly are out of reach. Judicial elections are a good way to get bad judges out and mediocre or better judges get to mostly do their thing. The places where the broader political environment is corrupt are no more corrupt than if judges were appointed. There’s the benefit with an election that the local party leaders can just opt to not support a bad judge versus making a decision to oppose him. If any change were to be made, I think making the clerks protected civil service employees would probably blunt the judges power, particularly if cousin Rufus get appointed to be county judge because he’s drinking too much at the law firm.
      - 5y ago
  - jdasdf 5y ago
    No, this is why it's important to have checks and balances against unrestrained judicial power. These checks and balances must include legal as well as practical costs and difficulties in having those orders implemented. The system should assume malice on all parties, and work accordingly.
    - daenz 5y ago
      The checks and balances here is the appeals process, which fails when the cost of appealing isn't worth it. It will always be the case where a judge can calibrate a decision to be under the cost of appealing. Which is why it is important to have judges be moral and wise...who don't let their egos get in the way and restrain themselves, instead of forcing you to pay any cost to check them.
      - whatshisface 5y ago
        There could be a system that punished judges for overturned rulings and rewarded people who put in the effort to overturn them.
  - BurningFrog 5y ago
    But "who judges the judges?", to paraphrase the ancient wise question.

daenz 5y ago

If you feel comfortable elaborating, can you explain broadly the purpose for the judge's order? I have heard stories of judges doing things like that during the time period of a divorce or custody battle.

throwaway09223 5y ago
I'm not going to elaborate other than to say my speech was restrained due to someone else's actions, but family court is definitely an area where common practice has strayed very, very far from anything resembling constitutionality. One such example: https://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/30/first-amendment-challenge-to-broad-gag-order-on-family-court-litigants/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...
- xeromal 5y ago
  You can't bring up an anecdote as a counterpoint then refuse to explain the anecdote. It's a bit unfair. Edit: someone posted the rules that says we should accept people's comments in good faith. I'll try to do that. Leaving this comment for posterity.
  - borski 5y ago
    Sure they can, if: a) it might get them in legal hot water, or b) it is personal and they don’t want to get into it. You’re not owed anything by anyone here, and they did bring up an example about family court and link to an article about it. :)
    - xeromal 5y ago
      Seems like a lame way to bring up an example to me.
      - wizzwizz4 5y ago
        I disagree, but fair enough. Doesn't mean any of us are entitled to elaboration, though.

shadowgovt 5y ago

It's more that the bar is extremely high, but yes, prior restraint on speech is not impossible. There has to be a direct through-line from the speech itself to probable irreparable harm to the beneficiary of the restraint. "Dear mobsters, this is the address where the FBI has sequestered a witness" is around the place the bar is. "That report might be defamatory to a corporation because we can argue it is untrue" is nowhere near the bar (truth is an affirmative defense, and the possible harm is reconcilable in law via monetary compensation and damages).

lettergram 5y ago

Was about to say something similar. FISA court orders, family court, settlement agreements, arbitration, civil lawsuits, criminal trials, etc There are so many different ways you can be “gagged” it’s very common. There’s a reason they tried to get the publication stopped - because it often works.

datavirtue 5y ago
And then you publish anyway to prove you are a "real American." (TM)
- pueblito 5y ago
  Rights are like trademarks, if you don’t defend them aggressively then you’ll lose them
  - ajsnigrutin 5y ago
    Sadly, there are many movements against free speech, specially in the usa, because some people might say something, that someone doesn't want to hear.

JumpCrisscross 5y ago

Family court telling a father not to tweet mean things and any court telling a journalist, with a track record of publishing, not to publish, are clear and separate things.

pyuser583 5y ago
Yes, one violates freedom of the press, and the other violates freedom of speech. Both are protected by the first amendment.
- FloNeu 5y ago
- thaumasiotes 5y ago
  No, they both violate freedom of the press.
  - smorgusofborg 5y ago
    No, only one violates the generally accepted freedoms of the press: https://en.wikipedia.org/wiki/Public_figure https://en.wikipedia.org/wiki/Public_figure
    - thaumasiotes 5y ago
      Legally they are the same action, and they obviously violate the same laws. Specifically, they violate the prohibition on restricting someone's freedom to engage in the mass-production of speech, which is known as "freedom of the press". What are you trying to say with the public figure link?
      - pyuser583 5y ago
        There’s a very different case history for “freedom of the press” than “freedom of speech.” Legally, they’re different. “Freedom of the press” has focused on the need for an informed public and institutional autonomy of the press. It is a public, not private, right. The freedom of the press also has a commercial element. It’s controversial to say “corporations have freedom of speech.” It uncontroversial and obvious that corporations have freedom of the press. “Freedom of speech” has focused on individual speakers. There’s a public element, but private speech is still incredibly important.