Stopping a horse is harder than you think …

Horse Running Without Jockey

There’s been a lot of news about the attempt by Robert Trump, brother of President Donald Trump, to block the publication of niece Mary Trump’s book on the family’s internal dirty laundry. Just this evening, a judge denied Robert Trump’s request for a preliminary injunction against publication, meaning the book should start shipping tomorrow absent some last-minute intervention.

A preliminary injunction is a temporary order which attempts to preserve the status quo until a dispute can be decided on the merits. In order to obtain an injunction, not only does the plaintiff have to show that he or she will likely prevail on the merits of the case, but also that the plaintiff will suffer “irreparable harm” if the injunction is not granted. That’s where many if not most attempts to seek an injunction fail – for the most part, courts assume that most commercial disputes can be resolved by the payment of damages afterwards, and will only grant an injunction where that’s clearly not the case. This court, at least, was not persuaded otherwise.

In this instance, the issuance of a preliminary injunction was further complicated by the First Amendment. Generally speaking, the United States Constitution does not permit what is called a “prior restraint” on speech, since a government actor (the court) cannot normally take steps to prevent speech before it takes place. They can, however, make the speaker liable for any damages caused by the speech after the fact, so Mary Trump may join John Bolton in the list of Trump tattlers who face legal action long after, as two judge have now put it, “the horse is not just out of the barn, it is out of the country.”

Image: Horse Running Without Jockey by Paolo Camera (Wikimedia Commons)

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