United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PLAINTIFF'S EMERGENCY
MOTION FOR TEMPORARY RESTRAINING ORDER (ECF NO. 61)
V. PARKER U.S. DISTRICT JUDGE.
AFT Michigan (“Plaintiff”), initiated this
lawsuit against Defendants Project Veritas (“Defendant
PV”) and Marisa L. Jorge, a/k/a Marissa Jorge, a/k/a
Marissa Perez (“Defendant Jorge”) in state court
on or about September 28, 2017. (ECF No. 1 at Pg ID 1.) On
October 6, 2017, Defendants removed this case to federal
court. (Id.) Presently before the Court is
Plaintiff's Emergency Motion for Temporary Restraining
Order, filed May 4, 2018. (ECF No. 61.) Defendants filed a
response on May 7, 2018. On May 7, 2018, this Court held a
telephone conference. For the reasons stated below, the Court
finds that Plaintiff has not met its burden to warrant a
temporary restraining order.
must balance four criteria in deciding whether to issue a
temporary restraining order:
(1) whether the movant has a strong likelihood of success on
the merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether the issuance of
the injunction would cause substantial harms to others; and
(4) whether the public interest would be served by the
issuance of the injunction.
Bailey v. Callaghan, 715 F.3d 956, 958 (6th Cir.
2013) (quoting Hunter v. Hamilton Cnty. Bd. of
Elections, 635 F.3d 219, 233 (6th Cir. 2011)) (brackets
omitted). Plaintiff has not presented any new evidence to
permit the Court to issue an injunction prohibiting
Defendants from publishing any documents or videos it has in
their possession. Plaintiff refers the Court to statements
Defendant PV founder James O'Keefe made where he states
he is in possession of videos and documents relating to AFT
that will be released this week. However, these recent
statements are no different than the statement Mr.
O'Keefe previously made that was the subject of the prior
motion for injunctive relief. (See ECF No. 7 at Pg
ID 121.) Strikingly, Plaintiff's focus is on video or
documents Defendant Jorge may have taken while she was an
intern with Plaintiff. However, Plaintiff terminated
Defendant Jorge's internship almost a year ago, and no
video or documents have been published relating to Plaintiff,
even after the Court denied Plaintiff's first motion for
injunctive relief, which was almost five months ago. Nothing
in Plaintiff's recently filed motion for injunctive
relief changes the Court's analysis on Plaintiff's
claims. (See ECF No. 46.)
Plaintiff cannot show that its commercial interests are more
fundamental than Defendants' First Amendment
right. As the Court stated in its Order dated
December 27, 2017:
United States Supreme Court noted:
Although the prohibition against prior restraints is by no
means absolute, the gagging of publication has been
considered acceptable only in ‘exceptional cases.'
Even where questions of allegedly urgent national security,
or competing constitutional interests, are concerned, we have
imposed this ‘most extraordinary remedy' only where
the evil that would result from the reportage is both great
and certain and cannot be mitigated by less intrusive
CBS v. Davis, 510 U.S. 1315, 1317 (1994); see
also Proctor & Gamble v. Bankers Trust Co., 78 F.3d
219, 225 (6th Cir. 1996) (“The private litigants'
interest in protecting their vanity or their commercial
self-interest simply does not qualify as grounds for imposing
a prior restraint.”); [Ford Motor Co. v. Lane,
67 F.Supp.2d 745, 751 (E.D. Mich. 1999)]; LL NJ, Inc. v.
NBC-Subsidiary (WCAU-TV), L.P., No. 95-4078, 2006 U.S.
Dist. LEXIS 77431, at *4 (E.D. Mich. Oct. 6, 2006).
(ECF No. 46 at Pg ID 1538.) Further, the Sixth Circuit
“has held that allegedly improper conduct in obtaining
the information is insufficient to justify imposing a prior
restraint.” See e.g., Murray Energy
Holdings Co. v. Mergermarket USA, Inc., No.
2:15-cv-2844, 2016 U.S. Dist. LEXIS 79183, at *27-28 (S.D.
Ohio June 7, 2016) (citing Proctor & Gamble Co.,
78 F.3d at 225 (“Weeks passed with the ‘gag
order' in effect, while the court inquired painstakingly
into how Business Week obtained the documents and
whether or not its personnel had been aware that they were
sealed. While these might be appropriate lines of inquiry for
a contempt proceeding or a criminal prosecution, they are not
appropriate bases for issuing a prior restraint.”)).
“Only when ‘publication [would] threaten an
interest more fundamental than the First Amendment
itself' is such a restraint justified.” Proctor
& Gamble Co., 78 F.3d at 225. Therefore, the Court
denies Plaintiff's emergency motion for temporary
restraining order. (ECF No. 61.)
IT IS ORDERED, that Plaintiff's
emergency motion for temporary restraining order (ECF No. 61)
IS SO ORDERED.