We ran acrossthis story today.  Prior restraint of a blog, a legal malpractice case, and a question of who is actually posting the blog.

"Mystery Blogger Caught Up in First Amendment Flap
Posted December 3rd, 2008 by Sam Bayard
in Massachusetts Anonymity Legal Threat Prior Restraints
On Monday, the blog-hosting service Blogger took down a blog called "Jeffrey Denner’s ineffective assistance of counsel" after Jeffrey Denner notified Blogger that a Massachusetts court had issued a restraining order prohibiting one Derrick Gillenwater from using the words "Jeffrey" or "Denner" or "Jeffrey Denner" in any blog postings. Blogger notified the anonymous operator of the blog, who goes by the moniker "Boston Bob." Yesterday, Boston Bob replied as follows:

The problem is, I’m not Derrick Gillenwater, nor do I operate under his
authority. I am an independent anonymous person.

Please repost my blog immediately.

Thank you.
Blogger promptly restored the blog and indicated that it would notify Mr. Denner.

This is where things get complicated. Boston Bob created the blog on October 15, after apparently meeting Derrick Gillenwater and discussing Gillenwater’s malpractice lawsuit against Jeffrey Denner and Kevin Barron, two Boston lawyers. Gillenwater himself is a blogger, and at the time he also operated a blog dedicated to criticizing Jeffrey Denner and discussing the lawsuit at http://jeffreydenner.blogspot.com (now defunct).

At around the same time that Boston Bob started his blog, Denner and Barron obtained a restraining order and then a preliminary injunction prohibiting Gillenwater from blogging about Denner and from filing motions or pleadings without prior permission of the court. For details, see our database entry, Denner v. Gillenwater.

Denner and Barron convinced the court to issue a restraining order after Gillenwater apparently sent them a threatening email stating that he would "send his blog posting out to the media" and that he would raise his damages demand by $1 million if he had to "send a 93A letter." (Exactly what all this means, we do not know.) Because Gillenwater’s blog has been removed, it is impossible to tell what Gillenwater had published (or had threatened to publish), but I can’t imagine anything that would justify such a sweeping prior restraint on his speech.

As we’ve said before, even narrowly tailored prior restraints on speech are constitutionally suspect. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) (cautioning that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights"). Under the circumstances, it’s hard to see how Denner and Barron could have been complaining about anything more serious than allegedly false and defamatory statements. This comes nowhere near what is necessary to satisfying the exacting standard the Supreme Court applied in the famous Pentagon Papers case. See New York Times Co. v. United States, 403 U.S. 713 (1971) (holding that injunction against publication of illegally leaked classified documents from Defense Department was an impermissible prior restraint). Even putting aside the serious constitutional question, courts routinely refuse to enjoin defamatory speech because money damages are an adequate remedy. It looks like the court failed to brush up on some basics of defamation and First Amendment law before issuing its order.