From: firstname.lastname@example.org (T. Devon Sharkey)
Subject: How to Handle a TRO hearing...
Date: Fri, 30 Jan 1998 18:06:57 GMT
If indeed the Church of Scientology is engaging in a new strategy of attempting to enjoin organization picket attempts, the readers here may find it helpful to know what strategies they can employ if they find themselves in court as pro se litigants. All of the following concerns general principles of equity and does not deal with any specific state. It is not legal advice, and I do advise you to retain counsel if you should find yourself in court. That being said ...
Injunctive relief sounds in equity; it is asking the court for extra-ordinary relief. Courts have a great deal of discretion in granting equitable (as opposed to legal) relief, but all the same they are, in general, reluctant to grant it.
A litigant seeks a temporary restraining order (TRO) in a somewhat expedited hearing, the full hearing to determine a final injunction is usually set for trial at some future date. To successfully obtain a TRO a litigant must generally show:
A litigant generally has to give notice of a TRO hearing to the opposing party. If a litigant proceeds ex parte (without your presence) they usually have to show that they could not find you and show what good faith efforts were made to locate you. If a TRO is granted in an ex parte hearing most states have a means to obtain a full adversarial hearing in fairly short order.
In First Amendment jurisprudence there is a doctrine known as "prior restraint." Prior restraint is the stifling of speech by injunction before the speaker has had the opportunity to speak. The Supreme Court has spoken out against prior restraints very strongly in a whole body of decisions. Similarly, equity does not allow injunctions to prevent defamation, trade libel, invasion of privacy, or other cases which touch upon the freedom to speak.
In short, the law prefers you to speak, and then face the consequences afterwards rather than restrain the speech before it is spoken. If you find yourself in Court, use the term "prior restraint" as frequently as possible where relevant. This serves doubly to show that 1) the case lacks merit and will ultimately be unsuccessful, and 2) well, it's a prior restraint, and those are forbidden.
Equity also has a special set of defenses, two of which are of special note:
In conclusion, equitable relief is indeed special relief, and is only granted where deserved. The Court does have a great deal of discretion in granting it, but where the relief touches upon the first amendment the Court's discretion is severely hobbled by the doctrine against prior restraints.