What do the Pentagon Papers, the late madam Theresa Brown’s infamous “trick list,” a Corpus Christi car dealer and the current Castle Hills City Council election have in common?
They all raised a fundamental First Amendment issue, that of prior restraint:
Under what circumstances can a court order someone not to publish or broadcast something — or to retract something that has been published — without a full trial and a finding of libel?
Castle Hills clawed its way onto that illustrious list last Friday when State District Judge Larry Noll issued a temporary restraining order requiring Councilman Douglas Gregory to “immediately and publicly retract” claims in a campaign flyer criticizing his opponent in Saturday’s election, former Castle Hills Mayor Bruce Smiley-Kaliff.
In the flyer, Gregory accused Smiley-Kaliff of “raw political corruption” because $134,000 in fees were allegedly not collected when he was mayor “from those who were apparently friends of the ex-mayor.”
Judge Noll also barred Gregory or his representatives from making any other “facially defamatory statements” regarding Smiley-Kaliff.
Noll, a veteran judge, is considered by many lawyers to be one of San Antonio’s best.
It’s hard to imagine he wasn’t aware of at least one of the cases mentioned above, but maybe he wasn’t.
Yet Noll made it worse Monday by confirming his order when lawyers for Gregory presented him with a 19-page brief of clear case law on the matter.
One case was Hajek v. Bill Mowbray Motors, a 1983 case out of Corpus Christi.
James Hajek had problems with a car he bought from Mowbray, and when he didn’t get satisfaction he painted a sign on all four sides of the car saying Mowbray had sold him a “lemon.”
The car dealer sought an injunction prohibiting Hajek from driving the painted car in public.
A district judge agreed and the Corpus Christi Court of Appeals upheld him.
But the Texas Supreme Court, without dissent, reversed them.
The short and succinct decision quotes the Texas Constitution:
“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
“Being responsible” means that if the speech published contained harmful lies, a lawsuit could result in a verdict that assesses monetary damages.
For that, Smiley-Kaliff may get his day in court.
He has sued Gregory for libel, alleging more than $1 million in damages to his insurance business.
Skepticism is appropriate.
It is not unusual for candidates to sue each other for libel, earning brief publicity during the campaign.
The suits almost always melt away after the election is over.
The Texas Supreme Court noted the car “evoked no threat of danger to anyone, and thus, could not be subject to prior restraint of temporary injunction.”
The Pentagon Papers case, detailing the frequently scandalous history of the Vietnam War, showed how high the bar to prior restraint is.
The Nixon Administration argued the New York Times should be barred from printing excerpts because they could cause harm to national security.
The U.S. Supreme Court voted 6-3 to allow them to be published.
Similarly a San Antonio district judge granted a restraining order to bar a small West Side newspaper from printing the names of prominent clients of Theresa Brown’s brothel.
Attorney Jesse Botella had the case moved to federal court where Judge William Sessions, who would later become director of the FBI, summarily dissolved the order.
Not surprisingly, Judge Noll has already received similar treatment.
Wednesday, a three-judge panel of the 4th Court of Appeals issued an emergency one-page order overturning his restraining order.