Digital Media and Data Privacy Law Blog

The 2008 general election has been hard-fought on the federal and state levels.  We previously reported about the institution of legal actions in two hotly contested U.S. Senate races, and we provided an update on those matters.  In addition to federal races, claims have also been filed in state races, as well. 

For example, on October 20, 2008, fifteen days before the general election, a candidate for a local judicial office in Ohio filed a complaint for defamation against a radio broadcaster related to an editorial broadcast over the air and posted on the Internet in which the broadcaster endorsed one of the two other candidates for the position.  In addition to the defamation claim, the plaintiff in Christiansen v. Pricer et al. also sought an ex parte temporary restraining order (“TRO”) seeking to have the broadcaster ordered not to engage in any negative communications about the judicial candidate.

Instead of approving the TRO without first hearing arguments from the broadcaster, a special judge assigned to the matter held a hearing related to the TRO just eight days after the complaint and TRO application were filed (and one week before Election Day).  During the hearing, the plaintiff had an opportunity to demonstrate that a TRO was justified.  Likewise, the defendants were allowed to show why a TRO should not be issued.  The judge allowed the plaintiff to question the defendant broadcaster about the editorial but upheld objections, based on Ohio’s Shield Law, to questions concerning the broadcaster’s confidential sources in writing the editorial.  The plaintiff was also permitted to bring on several witnesses who testified about their reactions to the editorial.  After examination and cross examination of the plaintiff’s witnesses, the judge then allowed the parties to argue why the editorial should or should not be enjoined. 

After hearing from each side, the judge ruled from the bench, denying the plaintiff’s application for a TRO because the plaintiff had not demonstrated she would be likely to obtain an injunction.  Essentially, the judge determined that enjoining the defendants from editorializing about the plaintiff amount to a "prior restraint" on speech.  The U.S. Supreme Court, in the famous Pentagon Papers case, held that prior restraints on speech presumptively violate the First Amendment to the U.S. Constitution and are justified only in order to avert very great public harm.  Because the judge denied the TRO application, the broadcaster was not enjoined from further broadcasting or publishing the editorial in question—that is, the broadcaster was allowed to continue airing the editorial and posting it on the station’s website.  The judge’s order following the hearing is linked here.

Importantly, the judge did not make any ruling on the merits of the plaintiff’s defamation claim.  As of this writing, the lawsuit is still pending.