Oh, hello there.
I’m Imani Gandy, and my colleague Jessica Mason Pieklo is lurking in the background.
Say hello, Jessica!
(She says hello.)
Together, we are Rewire’s new legal department, affectionately dubbed #TeamLegal.
If you are a fan of Rewire, you have likely read our legal commentary over the past several years. And maybe every now and again, your eyes glaze over because we use a lot of legal mumbo-jumbo that you might not understand. And why should you? You haven’t made a habit of being a pompous ass, spewing such Latin phrases as ipse dixit and in flagrante delicto. (That last one was a favorite of mine in law school.)
We here at #TeamLegal understand that you have better things to do than spend hours on Google trying to figure out what the hell we’re talking about when we bandy about the term “preliminary injunction” or “emergency stay.”
And so as our gift to you, over the course of the year, we will be explaining key legal terminology and principles in a new column called “Boom! Lawyered.”
The next time you’re at a cocktail party discussing, for example, the Center for Medical Progress’ smear campaign against Planned Parenthood, you’ll be able to say things like, “The judge is probably going to convert the temporary restraining order it issued in favor of the National Abortion Federation into a preliminary injunction. I mean, how could he not? NAF established that it would suffer irreparable injury and that there was a likelihood NAF would succeed on the merits.”
Did your eyes just glaze over?
Never fear! #TeamLegal is here.
You may have heard the term “temporary restraining order,” or TRO. It’s an emergency order that a judge issues to stop, or “restrain,” someone from doing something that will cause immediate, irreparable harm to someone else while that “someone else” pursues claims in court.
Let me give you an example.
Let’s say your ex-boyfriend has threatened to release a sex tape you and he filmed back when you were together and happy before everything went to shit. But you don’t want that sex tape to be released, because the last thing you need is the world watching you and your ex knocking boots to “Pony” by Ginuwine.
So you file a lawsuit against your ex for invasion of privacy and intentional infliction of emotional distress, and whatever other claims you decide to toss in, and you file for a TRO. You want to enjoin—the legal word for “stop”—your former boyfriend from releasing your sex tape.
The judge assigned to your case will issue the TRO if she thinks you’ll suffer immediate, irreparable injury, and she won’t if she doesn’t.
“What does ‘irreparable injury’ mean?” you may be asking. It’s exactly what it sounds like: injury that cannot be repaired with traditional legal remedies, like suing the crap out of someone for a large sum of money. By contrast, if someone plans to breach a contract to, say, fix your roof, you could sue them for damages and get someone else to do it. You can’t get an injunction to force the roofer to do his job; you can’t enjoin the roofer from not doing his job.
If your ex releases that tape, there’s no turning back. Everyone, from your family and friends, to current and future employers, will be able to see it because the Internet is forever. That sort of injury is irreparable.
The next step after winning a TRO is trying to convert that TRO into a preliminary injunction. A judge can issue a TRO without notifying your ex-boyfriend in advance in order to maintain the status quo—in other words, in order to keep the situation (a world without your sex tape in it) the same. But in federal court, a TRO expires after 14 days (unless the TRO itself expressly states otherwise); a judge can’t issue a preliminary injunction until after a hearing, and after your boyfriend has had his day in court.
At the preliminary injunction hearing, you’ll make your arguments about why you’re entitled to a preliminary injunction—in other words, why your ex should be enjoined from releasing the sex tape. Your ex will make his arguments about why he should be allowed to release the sex tape if he wants.
The judge will issue a preliminary injunction if you’re able to show two things: (1) that you’ll suffer immediate and irreparable injury; and (2) you have a “likelihood of success on the merits.” (That’s legalese for “you’re probably going to win at trial.”)
The first element is the same thing you had to prove when you asked for a TRO. The second element is where you’ll duke it out with your ex. You’ll claim that he’s inflicting emotional distress. He’ll claim you’re violating his First Amendment rights. You’ll claim he has no right to invade your privacy. Perhaps, in a shocking turn of events, he’ll produce a contract that you signed giving him the right to release the sex tape. You’ll counter that he forged the contract. And on and on.
Whatever the facts are, the judge will consider them and make her decision. When making her decision, she’ll “balance the equities,” meaning she will consider the effect of issuing or not issuing the injunction. She will also consider whether or not “public interest” will be harmed if she issues the injunction.
Once she makes her decision, either she will convert the TRO into a preliminary injunction—basically the same thing, except it lasts until the end of the case. Or, she will dissolve the TRO and refuse to issue a preliminary injunction, which lets your dastardly ex go ahead and release the sex tape if he wants to.
If you understand what I’ve written so far, congratulations! You understand the basics of preliminary injunctions and temporary restraining orders.
When thinking about injunctions, it’s key to remember one thing: Winning a preliminary injunction doesn’t necessarily mean that you’ve won the case. TROs and injunctions simply maintain the status quo while the parties make their case in court. In the meantime, they protect you from that irreparable injury the person you’re suing could cause you.
In most cases, you and your ex will probably settle because neither of you wants to spend all the money on attorneys’ fees. But if that doesn’t happen, and you win at trial, then a court will prevent him from ever releasing the sex tape—otherwise known as a permanent injunction. If you lose in court, your boyfriend can release the tape.
So there you have it: injunctions for beginners. Now go forth and spread your newfound legal knowledge throughout the land.