If you don’t know what the deal is with prior restraint, here, watch:
There. Simple. Right?
THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!
I wish I could just submit that clip to the next judge who even considers granting one. Just hold up a chromebook with that on it, play it, drop it on the floor, and walk out.
Dudeists have known this since 1998, and even most Dudeists were a bit late to the party.
I suppose that should not complain about misguided souls trying to get prior restraints.
If they stopped, I might actually have to find a less enjoyable way to make a living than being able to stand there with my arm around the Constitution, channelling Walter Sobchak. There is not much more career-choice-affirming than that.
Nevertheless, one after the other, they keep on coming — defamation plaintiffs who think that they’ve found the magic bullet that gets them a prior restraint. Hell, sometimes they even convince judges to grant them – which is even more awesome, because it then gets me a chance to get an appellate decision slapping it down.
In fact, I secretly hope that I will lose every prior restraint argument before the trial court. In 99% of those cases, the judge should look at the plaintiff and say “are you out of your fucking mind? Your motion is denied. THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!”
Well what fun is that? I guess it would be fun as all hell if the judge actually did that.
But, when they get slapped down for being dumb, it helps get the word around to other judges who haven’t heard about this new thing called The First Amendment. I Each time a judge gets reversed for granting a prior restraint – which is exactly every fucking time unless the speech is about secret troop movements, it could help the next dumbass who managed to get elected to the bench. It could also help lawyers with this other new thing called “client control.”
I, myself, represent an occasional defamation plaintiff or two. Plaintiff’s side cases can be fun. But, they always start with the discussion about prior restraint.
The conversation that goes sorta like this:
Client: “I want a preliminary injunction in my defamation case.”
Me: “Wrong country, dude.”
Client: “Come on, at least try”
Me: “FOR YOUR INFORMATION, THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT! So, no. No. No. No. I’m not even gonna fucking try. You know why? Because it is stupid. Stupid. Stupid. Stupid. I may not be the smartest lawyer in the world, but I’m not stupid enough to seek a prior restraint. You want an injunction, go hire another lawyer who is willing to look like an idiot and waste your money. After he gets his ass handed to him, come back and I’ll handle your case competently, not like the fuckwit that you finally arrive at after you get to the bottom of the barrel, and then dig your way through the wood to the other fucking side of the barrel, now shut the fuck up about an injunction or get out of my fucking office and take your retainer check with you!
MARK IT ZERO!”
Client: “Ok, ok… just take it easy, man.”
Me: “I’m perfectly calm, dude.”
Client: “Just take it easy.”
Me: “Calmer than you are.”
Now on the other hand, when I get a defense case where there is a prior restraint? Then I get all happy. The first draft of my opposition inevitably has the Walter Sobchak quote in it. But, it always gets taken out. Citing to a fictional character just doesn’t seem like the right call when you’re making a serious point.
The Big Lehrmann
Friends, Americans, Dudeists: We have arrived. Justice Debra H. Lehrmann of the Texas Supreme Court gave footnote 7 in Kinney v. Barnes, 57 Tex. Sup. J. 1428 (Tex. 2014).
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.” … This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court, this Court, Texas courts of appeals, legal treatises, and even popular culture(7). (citations and other footnotes omitted)
And that “7” brings us to this… get a handkerchief, because you’re gonna weep.
The Big Lebowski (PolyGram Filmed Entertainment & Working Title Films 1998) (“For your information, the Supreme Court has roundly rejected prior restraint.”).
Now, of course, The Big Lehrmann (as she shall now be known) can get away with citing it that way. But, I can’t see a trial court in Muskegon, Des Moines, or even Los Angeleez going for that. But, The Big Lehrmann now gives us the respectability and acceptance that Constantine once gave to the early Christians.
So now, I’ll tell you how to cite this. And before you trot out the bluebook, fuck the bluebook.
The next time you are arguing against a prior restraint, this is how you cite to the wisdom of Sobchak:
Kinney v. Barnes, 443 S.W.3d 87 at n.7 (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).
Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7 (Tex 2014)
Kinney v. Barnes, 42 Media L. Rep. 2390 at n.7 (Tex. 2014)
This affects all of us man.
Our basic freedoms!
UPDATE: I personally use the “small caps” option when citing. But, wordpress does not seem to have that option.
Related: The post that inspired this one, How to cite to Buzz Lightyear.