Criticisms of People That Might Create a Risk of Attack by Third Parties
I blogged this morning about what I think is an unconstitutional injunction that bars defendants—who had accused a police officer of making a white supremacist gesture—from mentioning the name of the officer, who is suing them for libel. I think the underlying allegations against the officer are quite weak (the gesture, the familiar “OK,” has long been used with no racial dimension, and I expect continues to be largely used this way). His libel case may also be weak, because the allegations may well be understood as the expression of opinion (a complicated question). But my point was simply that it’s unconstitutional to broadly ban defendants from mentioning the plaintiff’s name, especially when that’s done before trial and without adversary argument.
Some commenters, though, suggested that perhaps the injunction might be justifiable not on a libel theory, but on the theory that the accusations against the officer might foment threats of violence against him, or outright violent attack. That argument doesn’t work, I think, but let me explain why.
[1.] Something similar, though with more risk of violence, arose in NAACP v. Claiborne Hardware Co. (1982). In that case, the NAACP had organized (in the late 1960s) a black boycott of white-owned businesses in Claiborne County, Mississippi. Not all black residents were inclined to join, so to enforce the boycott, the organizers stationed “store-watchers” who wrote down the names of blacks who weren’t complying; “names of boycott violators were rea
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