This is a question that clients actually ask a lot. The short answer is almost always no, because prior restraints on free speech, through the use of an injunction or other order of a court, are presumptively unconstitutional.
Both the United States and Texas Constitutions have robust protections of free speech; in fact, the Texas Constitution may grant citizens even broader protection than its federal counterpart – the more well-known First Amendment. Under 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. Tex. Const. Art. I, § 8. As such, the Texas Supreme Court has long held that prior restraints on free speech are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992); Kinney v. Barnes, 443 S.W.3d 87, 90 (Tex. 2014), cert. denied, 2015 WL 231998 (U.S. Jan. 20, 2015).
The First Amendment of the U.S. Constitution is similarly suspicious of prior restraints, which include judicial orders “forbidding certain communications” that are “issued in advance of the time that such communications are to occur.” Kinney, 443 S.W.3d at 90. (quoting Alexander v. United States, 509 U.S. 544, 550, (1993) (citation and internal quotation marks omitted)). Accordingly, 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.” Id. (quoting Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976)).
In the Kinney case, the Texas Supreme Court was asked to decide whether it was constitutionally permissible to enter a permanent injunction restraining future speech after there had already been an adjudication on the merits at trial that the plaintiff had defamed the defendant. Kinney, 443 S.W.3d at 89. The Texas Supreme held that the Texas Constitution does not permit injunctions against future speech following an adjudication of defamation. Id. at 99. Importantly, the Texas Supreme Court further held, “the concern that damages will not provide an effective remedy in defamation cases is not a new one, but we have never deemed it sufficient to justify a prior restraint.” Id. at 100. Accordingly, the Texas Supreme Court held, an injunction prohibiting future speech, even if based on an adjudication of defamation on the merits, impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texans’ free-speech rights under Article I, Section 8 of the Texas Constitution. Id. at 101.
Therefore, under Kinney, even if a plaintiff is ultimately successful at trial, he would not be entitled to a permanent injunction that prohibits future speech by a defendant. In reality, this question more often comes up in the context of a temporary injunction than a permanent one. Typically, the plaintiff will want to obtain a temporary injunction prohibiting speech by the defendant at the very inception of the case before there has been a trial on the merits. Of course, this is arguably an even greater restraint on speech than that which the Texas Supreme Court found unconstitutional in Kinney because it is being sought before there has even been an adjudication on the merits of any of the plaintiff’s claims. For this reason, courts almost always refuse to issue temporary injunctions restraining future speech.
There is a narrow exception to this general rule that sometimes comes into play in commercial disputes. Texas courts will occasionally grant prior restraints on speech if the speech constitutes “commercial speech,” which courts have found have fewer constitutional protections. Commercial speech is defined in Texas as false and misleading speech that is “related solely to the economic interests of the speaker and its audience.” Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387, 394 (Tex. App. – Austin 2000, no pet.). In Amalgamated Acme, the speech that was enjoined involved statements by a company about its former employee – now a competitor – to customers requesting that they withhold payments to the employee’s new company under their contracts. Id. at 390-91. There, the economic interests of both the speaker and the audience were firmly at play, so the court found this was commercial speech because these were communications by a direct business competitor made with the specific intent to end contractual relationships between the plaintiff and its customers. Id. at 394. As such, the court found that an injunction prohibiting such speech would be permissible.
Of equal if not greater importance is the fact that for commercial speech to be enjoined, the speech must be first proven to be false and misleading. Amalgamated Acme, 33 S.W.3d at 394. Indeed, misrepresentations in commercial speech can only be restrained if, as in Amalgamated Acme, the applicant first establishes that commercial speech that was false and misleading has actually been uttered; there is no support in the law for the position that a party can be prohibited from making misrepresentations without that type of proof. Marketshare Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 919 (Tex. App. – Dallas 2006, no pet.). If the plaintiff does not first establish that the speech at issue is false and misleading, the distinction between commercial and non-commercial speech does not matter and there can be no injunction prohibiting future speech. Id.
Further, where the speech is couched as belief or opinion, the statements are more statements of position rather than statements of fact, and as such, the plaintiff cannot satisfy its burden of proving the speech was false and misleading to constitute commercial speech that would justify a prior restraint. Id. at 920; See also, Texas Mut. Ins. Co. v. Sur. Bank, N.A., 156 S.W.3d 125, 130 (Tex. App. – Fort Worth 2005, no pet.) (declining to find that a possible negative interpretation or impression of factually accurate words renders speech false or misleading and thus refusing to find speech was commercial and subject to a prior restraint).
Thus, while there is an exception that allows courts to enjoin speech if it falls under the narrow definition of true commercial speech, these instances are few and far between. Accordingly, as a general rule, getting a court to enjoin or prohibit someone from speaking is not likely.
© Eric C. Wood, 2017