Corpus Christi Caller-Times v. Mancias

OPINION

KENNEDY, Justice.

Relators, the Corpus Christi Caller Times, the Brownsville Herald, the McAllen Monitor, and the Valley Morning Star (The Newspapers), seek relief from a trial court injunction by writ of mandamus. In their motion, the Newspapers request relief from an order issued by the Honorable Fernando Mancias, Judge of the 93rd District Court in Hidalgo County, prohibiting the Newspapers from printing false, misleading or deceptive headlines which are not substantiated by the contents of any story involving Sheriff Brigido Marmolejo, the real party in interest. The Newspapers contend that the injunction is void, illegal and amounts to a clear abuse of the trial court’s discretion. We agree.

Brigido Marmolejo, sheriff of Hidalgo County, filed suit against the Newspapers alleging that the newspapers defamed him and published headlines which were not substantiated by the contents of the corresponding news article. The headline of the article in question suggested that the FBI had accused Marmolejo of abetting drug trafficking. After a hearing on Marmole-jo’s request for injunctive relief, the trial court entered an order enjoining the Newspapers from printing false, misleading, or deceptive headlines that are not substantiated by the contents of the story as they concerned Marmolejo. The Newspapers *854filed this petition for writ of mandamus, raising both the facial and constitutional invalidity of the trial court’s order.

Our first inquiry is whether mandamus is the proper remedy in this instance. Mandamus is an extraordinary remedy which should be used sparingly. Generally, mandamus is not proper when there is an adequate remedy by appeal. However, the availability of other remedies will not prohibit mandamus to issue to correct a gross abuse of discretion. State v. Sewell, 487 S.W.2d 716, 719 (Tex.1972). Likewise, mandamus is appropriate in matters in which justice demands a speedy resolution. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex.1987). Mandamus is also proper when delay subjects a party to the prospect of irreparable loss in the meantime. Broyles v. Ashworth, 782 S.W.2d 31, 34 (Tex.App.—Fort Worth 1989) (orig. proceeding). The Newspapers claim that the first amendment issues presented in this appeal make any remedy by appeal, even accelerated, inadequate. They argue that every day the injunction remains in effect, their constitutional rights are impermissibly restricted and subject to the prospect of new, irreparable harm flowing from that restriction.

The liberty of the press is essential to a free state. Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 630, 75 L.Ed. 1357 (1931). This liberty consists of allowing no prior restraints upon publication, rather than freedom from censure when what is published is improper. Id. An injunction which imposes a prior restraint upon speech and publication constitutes an impermissible restraint on First Amendment rights. Pirmantgen v. Feminelli, 745 S.W.2d 576 (Tex.App.—Corpus Christi 1988, no writ). A person’s right to speak cannot co-exist with a power to compel silence or fashion the form of speech. Id. at 578. The essence of a prior restraint by injunction is that it is a predetermined judicial prohibition restraining specific expression. See Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir.1980).

Here, the injunction in question potentially subjects the Newspapers to the personal censorship of the trial judge each time a news item concerning Sheriff Mar-molejo presents itself. The injunction prohibits the Newspapers from printing false, misleading or deceptive headlines. These terms necessarily involve the subjective determination by the trial judge that a particular headline fits that category. We find that such a prohibition amounts to an impermissible prior restraint on the Newspapers. This threat of censorship is not remediable by the normal appellate process because it is a continuing threat which concerns the fundamental constitutional right to speak freely which must be protected. For these reasons, we find that mandamus should issue.

Relators also point to the fact that the injunction order on its face fails to comply with Tex.R.Civ.P. 683, because it does not contain a trial setting. We agree. The Supreme Court, in Interfirst Bank San Felipe v. Paz Constr. Co., 715 S.W.2d 640 (Tex.1986), held that an order which does not adhere to the requirements of the rules governing injunctions is subject to being declared void. We declare this injunction void for failing to contain the required trial date. We note that the lack of a trial date under normal circumstances would not render an appeal inadequate. We wish to make clear that our reasons for granting this mandamus relief are those set forth earlier in this opinion.

We conditionally grant the Newspapers’ petition for writ of mandamus. In view of the foregoing, we are confident the trial judge will vacate the injunction order signed on June 20, 1990. Mandamus will issue only if he refuses to do so.

BENAVIDES, J., dissents.