Pastor Denied Injunction Aimed at Stopping Online Critic

Key point 4-02.02. Ministers are considered “public figures” and as a result they cannot be defamed unless the person making an otherwise defamatory remark did so with malice. In this context, malice means that the person making the defamatory remark either had actual knowledge that it was false or made it with a reckless disregard as to its truth or falsity.

A federal court in Colorado refused to issue a restraining order barring a former parishioner from making disparaging comments about a pastor and his two sons on the internet.

Injunction sought against former parishioner for defamation

A pastor and his two sons (the plaintiffs) claimed that a former parishioner (the defendant) had been defaming them on the internet. The plaintiffs asked the court to issue a preliminary injunction prohibiting the defendant from “posting or disseminating any further statements, comments or otherwise publishing any remarks or observations regarding the named plaintiffs herein."

The court refused to do so, noting:

Under the plaintiffs’ requested injunction, the court would prohibit [the defendant] from speaking, writing, or publishing regarding the plaintiffs. This kind of prohibition is known in legalese as a “prior restraint,” which “is just a fancy term for censorship.” The prior restraint has been roundly rejected. . . . (The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976)). The court will not enter the requested injunction.

The court explains its refusal with three considerations

The court cited the following considerations in support of its refusal to issue a restraining order against the defendant’s allegedly defamatory statements:

• “[A] prior restraint of alleged defamation violates the traditional rule ‘that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damage.’ (quoting Cmty. for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987)). This principle holds special weight at this stage of the case, as no preliminary injunction can issue when a movant has an adequate remedy at law—i.e. money damages.”
• “[P]rior restraints of expression generally violate the First Amendment.” As the Supreme Court has noted, “The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973).
• “[W]hile a prior restraint of defamation is presumptively unconstitutional,” it may be permitted in exceptional cases. “An injunction of defamation is permissible only if “it is (1) ‘narrowly tailored,’ (2) ‘based upon a continuing course of repetitive speech,’ and (3) ‘granted only after a final adjudication on the merits that the speech is unprotected.’ [citing] Auburn Police Union v. Carpenter, 8F.3d 886, 903 (1st Cir. 1993).” The third “requirement—that a prior-restraint injunction is only permissible ‘after final adjudication on the merits’—is ultimately what sinks plaintiffs’ motion in this case. Plaintiffs ask the court to enjoin [the defendant] from speaking about them (which is certainly not a narrowly-tailored request) before a jury has determined that [the defendant’s] comments were in fact false and defamatory. . . . (‘An injunction against defamatory statements, if permissible at all, must not . . . forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression’ (emphasis added) [citing] McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015).)”

What this means for churches

The internet has provided disgruntled persons with a highly attractive platform to share their grievances, whether real or imagined. In some situations, like the one described above, clergy are attacked directly, prompting them to look for ways to silence their antagonist.

This case reflects the view of many courts that the appropriate way to proceed in such situations is by filing a civil lawsuit alleging defamation. A restraining order, if permissible under state law, is available only after a court makes a subset of determination of defamation. Banks v. Jackson, 2020 U.S. Dist . LEXIS 222010 (D. Colo. 2020).