Recent Fifth Circuit Nominee Once Issued Controversial Prior Restraint
As a state trial judge, Elrod once issued a controversial prior restraint enjoining an exposé by local news station KTRK about conservative evangelical preacher Benny Hinn. A third-party acquired documents embarassing to Hinn from Hinn's legal counsel, and passed these documents to KTRK. Because Hinn enjoyed an attorney/client privilege with his counsel, Judge Elrod held that this was sufficient reason to issue a temporary restraining order forbidding KTRK from broadcasting any information contained in the document.
Judge Elrod's order was subsequently lifted by another judge. The U.S. Supreme Court has held that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights."
Written By:anon On March 29, 2007 7:00 PM Written By:FA On March 29, 2007 7:57 PM
A prior restraint is, by definition, a restraint on speech before the speech uttered. This is a textbook example of a prior restraint.
Also, attorney/client privilege is a relationship between an attorney and a client. It has no effect on a third party, such as a news station. Furthermore, even if it did, the First Amendment is in the Constitution. A/C privilege is not, so the Constitution would win.
Seriously, dude, know what the hell you are talking about before you go posting blog comments.
Yes, the First Amendment is in the Constitution. So are the Fifth and Sixth, and they have some bearing on the case. It's not so simple, FA.
Seriously dude, you should switch to decaf.
Too young & inexperienced! She has time! Not sure what the admin. was thinking! More qualified candidates were on the radar. And above all concerns, the 5th Circuit is lacking ethnic diversity & its shameful!
It's odd that this judge is being faulted by ACSBlog for SUPPORTING a prior restraint, when Janice Rogers Brown was attacked on this very same blog for OPPOSING a prior restraint in the Aguilar case.
That's inconsistent.
In the Aguilar case, Brown dissented against an injunction against speech that the trial judge in that very case admitted had ceased two years before the trial, an injunction that banned speech even if it did not rise to the level of an independent legal violation.
Thus, the injunction Brown opposed was clearly a classic prior restraint, regardless of whether the speech that originally gave rise to the underlying lawsuit was tortious or justified an award of damages.
Yet Janice Rogers Brown was attached for opposing the injunction.
A cynic might detect an ideological double-standard at work here.
The beneficiaries of the prior restraint in Aguilar, which this blog liked, were Hispanic employees represented by a liberal advocacy group.
By contrast, the beneficiary of the Texas state court injunction Elrod issued was an evangelist that few liberal commentators would sympathize with.
This doesn't disqualify her in my eyes. For that matter, I'm not sure this is a prior restraint - not all injunctions against speech are. If the speech were to destroy the privilege, in that case or in the future, it should not be allowed.