Tribal court strikes down prior restraint on journalist

A tribal appellate court in Michigan last month vacated a broad injunction that prohibited a Native American journalist from reporting on issues related to tribal membership.

A trial court issued the injunction on Feb. 19, during a libel case against freelance reporter Nancy Kelsey and three other defendants. The injunction was the second order gagging Kelsey, replacing a temporary restraining order that another judge issued last summer. On Jan. 19, Kelsey asked the Little River Band of Ottawa Indians Court of Appeals to vacate the injunction, arguing that it was an impermissible prior restraint on the press.

The Reporters Committee and the First Amendment Project filed a friend-of-the-court brief in support of Kelsey. It noted that the U.S. Supreme Court said in 1976 in Nebraska Press Ass’n v. Stuart that prior restraints on speech are “the most serious and the least tolerable infringement on First Amendment rights.” Though the First Amendment does not directly apply to tribal governments, other laws applying to tribal governments contain language identical to the First Amendment.

The appellate court vacated the injunction in an opinion signed by Professor Matthew L.M. Fletcher of the Michigan State University College of Law, who sat as special chief justice, and associate justices Ronald Douglas and Martha Kase. While it noted that the case “involves very complex questions involving the freedom of speech, freedom of the press, and the interpretation” of a defamation statute, the court found it unnecessary to reach those questions. Instead, it vacated the injunction because the trial court did not go through the procedures required to issue a preliminary injunction.

Though it vacated the injunction on procedural grounds, the appellate court also found that the order “involves what [Kelsey] characterizes with some justification as a ‘prior restraint’ of public speech and of the press.” It added that the tribe’s defamation statute may bar prior restraints altogether, because it “strongly implies that the only remedy for slander or libel is” to sue for damages after allegedly defamatory statements are made.