by Paul Alan Levy
This week Public Citizen became involved in a case pending in a trial court in Alabama, in which a lawyer is handling both a mass action and a class action against an exterminating company named A-1 Exterminating and its affiliates. Plaintiffs allege that A-1 both provides bad services and fraudulently advertising its services; the law firm has cooperated with reporters covering the case and mentioned the litigation on its firm web site as and Facebook page. But after several months of trying, the defendants were able to persuade the judge to enter a gag order of astonishing breadth — it barred both the consumer plaintiffs and their lawyers from referring to the litigation or its surrounding circumstances “outside of court.” The judge did not give any reasons for the injunction, or issue any supporting factual findings; the defendants had argued variously that plaintiffs’s counsel were hurting their business by making false and defamatory statements about the extermination services, that plaintiffs’ counsel were improperly using their discussion of the case to troll for more plaintiffs, and that public discussion of problems with A-1 could pollute the jury trial and thus prevent the defendants from getting a fair trial. The judge was, apparently, unconcerned about the possibility that prejudging the veracity of plaintiffs’ claims by suppressing further criticism of this company might deprive consumers of the opportunity to avoid getting hurt by a bad company; and he did nothing to prevent the company from touting its services to potential jurors.
Early this week, we sought mandamus from the Alabama Supreme Court, seeking to have the gag order set aside as a prior restraint. Preliminary injunctions are never justified to restrain alleged defamation; the First Amendment protections for mass media advertising about the rights of consumers vis a vis specific defendants is well-established (in part by one of Public Citizen’s own cases, Zauderer v. Ohio; we have litigated the issue in the Eleventh Circuit as well), and no showing was made that comes close to meeting the standards that Alabama itself has set for the sort of pre-trial publicity that warrants the imposition of a remedy.
We'll be seeking a emergency stay next week. Stay tuned.