The Daily Iberian has asked the 16th Judicial District Court to dissolve a temporary restraining order that forced the newspaper to remove an opinion posted on its online forum, saying the order is unconstitutional.
The request for temporary restraining order was filed Tuesday by New Iberia lawyer David Groner and signed by state District Judge Curtis Sigur. The order was issued related to an anonymous visitor’s posting on the newspaper’s website that referenced a 2008 investigation of the Louisiana Office of Disciplinary Board that stated Groner was issued a six-month suspension from practicing law for engaging in a conflict of interest. The suspension was deferred — meaning Groner did not have to actually stop practicing law — subject to a year of supervised probation. The posting also included a link to a document on the Louisiana Supreme Court website detailing the consent disciplinary action given to Groner, an action in which Groner agreed to in order to halt the investigation and included certain phrases from that document.
The comment concerning Groner was sparked by a lawsuit he recently filed on behalf of Sanders Butler, of New Iberia, that countered allegations of sexual harassment against Butler.
Facing threats of contempt from Groner, the newspaper removed the opinion comment from its website.
On Wednesday, New Orleans attorney Scott Sternberg, who also represents the Louisiana Press Association, filed an emergency motion requesting the order be rescinded, stating in the motion that the order “constitutes an unconstitutional prior restraint in violation of the First Amendment.”
The emergency motion states neither he nor the newspaper has seen Groner’s petition “or any affidavit signed by the plaintiff which shows that his damage is so great that The Daily Iberian should not have been afforded the opportunity to oppose the temporary restraining order.”
The newspaper’s motion also states Groner’s request was signed by the judge but was served without notice or bond, which is required by law, except in few circumstances.
The issue of prior restraint, a legal term meaning someone wants to suppress material from being published or broadcast in any medium “on the grounds that it is libelous or harmful,” as opposed to seeking a legal remedy after it is published, is the more egregious part of the temporary restraining order, said Daily Iberian Publisher Will Chapman.
Attorney Ken White, a member of the First Amendment Lawyers Association and a national First Amendment litigator, in recent days wrote in his blog popehat.com, “forcing the paper to take the comment down — not to mention the link to a public document — is nothing short of lawless. First, the paper isn’t responsible for the comment as a matter of law under Section 230 of the Communications Decency Act. Second, the judge’s order is classic — and classically unconstitutional — prior restraint.”
A hearing to address the newspaper’s motion to rescind the temporary restraining order has been tentatively set for Sept. 11.