Alabama Court Case From 1994 Finds That Preliminary Injunction Was Prior Restraint On Free Speech

A grisly Alabama murder from 1984 led to publication of a book that sparked a classic prior restraint lawsuit. The Alabama Supreme Court, in a 1994 ruling, cited the state constitution in ruling that attempts to suppress publication amounted to an unlawful prior restraint.

The take-home lesson? Efforts to impose prior restrictions on speech run afoul of both the U.S. Constitution and its First Amendment--plus the Alabama Constitution. That means the preliminary injunction that led to my incarceration was unlawful on multiple levels.

The case in question is styled Doe v. Roe, 638 So. 2d 826 (1994), and the high-court ruling came 10 years after a murder that gave rise to a book. Here is background from the Doe opinion:

In 1984, the natural mother of Roe's adoptive children was murdered by their natural father. The man dismembered his wife's body and buried it under a fish pond in the back yard of the family's home. When her body was discovered approximately three years later, the event and the resulting trial received much publicity. The children's natural father was convicted and is now serving a life sentence in the penitentiary.

After the children's natural father was arrested for the murder of their mother, they remained in the custody of relatives for more than a year. Later, they were adopted by John Roe and his wife, who lived in another area of the state. The children moved to the home of their adoptive parents about a month before the trial of their natural father, and since that time they have been undergoing counseling to enable them to lead normal lives.

Doe wrote a novel based upon the events of the murder. She contacted various commercial publishers, but none was interested in publishing her book. She then invested her own money in publishing the book. She had approximately 1,000 copies printed in hopes that she could distribute the book herself. Roe learned of Doe's plan to distribute this book. As next friend of his minor adoptive children, Roe filed a complaint for an injunction against the distribution of the book.

The trial court granted a preliminary injunction, as it did in my case. But it did not hold up in Doe, and that finding helps explain why there never should have been in injunction in my case. From the Doe opinion:

Although Doe raises several issues on appeal, the dispositive question is whether the injunction violated Article I, § 4, of the Constitution of the State of Alabama. According to Article I, § 4, "no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." The trial court held that a prior restraint was necessary because, it felt, the distribution of the book would injure the children by invading their right to privacy. We do not agree that Doe's right to freedom of speech as guaranteed by the constitution is overcome by the privacy interests raised in this case.

Alabama might not be thought of as a progressive state, but those are powerful words in support of free speech--showing that are free-speech traditions have been supported both by those on the left and the right.