There Is No Legal Time Machine to Punish Future ‘Libel’ and ‘Slander’

​You’ve heard of helicopter parents, but have you heard of the GPS parent?
 
A Louisiana mother is accused of concealing electronic devices on her elementary school-aged child. The devices not only included a GPS tracker, but also allowed the mother to intercept conversations. The school board obtained a temporary restraining order prohibiting her use of these devices on school property. (Hat tip to Eugene Volokh.)
 
The mother then took to hosting a live web log and making ongoing social media posts rich in complaints about school officials. These officials claimed that she “defamed and slandered the reputations” of the school board and staff. The board promptly obtained a preliminary injunction from a Louisiana court restraining the mother from “making or publishing and/or from engaging in any activity to make, disseminate, publish or broadcast defamatory, slanderous, libelous, frivolous and/or fraudulent claims” about the school board and school employees.
 
This case could serve as a primer for 1L law students about how the First Amendment operates. The injunction presupposes that ongoing and future speech can be judged already to be “defamatory, libelous, and frivolous” without a judicial finding. And since when did “frivolous” speech become actionable? (Jimmy Kimmel, The View, call your lawyers.) The Louisiana Court of Appeals lifted the injunction and gave this remedial lesson on the reason why we do not allow prior restraint of speech in America:
 
“The School Board is correct that the protection of the First Amendment does not extend to defamatory and libelous speech. However, for First Amendment protection to be in jeopardy, there must first be a determination that the words are defamatory. Until words lose First Amendment protection, they are guarded against prior restraint …
 
“We also note that the preliminary injunction issued in favor of the School Board prohibits more than the utterance of allegedly defamatory statements. It prohibits speech that is merely disparaging or ‘frivolous’ – speech that is not within the categories excluded from the First Amendment.”
 
Until a court finds speech to be slander or libel, it is protected by the First Amendment. To hold otherwise would be to allow plaintiffs’ lawyers and courts to preemptively declare someone’s future utterances as defamation and start gagging Americans right and left.
 
The Founders shrewdly left us the liberty to speak – and they also left us to deal with the consequences of our speech.