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Wednesday, April 10, 2024

Specific Performance and the First Amendment

The Bryn Mawr Film Institute canceled a screening of The Child Within Me, a documentary about Israeli musician Yehuda Poliker, citing fears about appearing to endorse Israel and its position in the war. A state trial court issued an injunction ordering the Institute to show the film, pursuant to terms of the contract.

This surprised me. I assumed that the First Amendment would limit specific performance, where the order would compel the party to engage in speech it no longer wished to engage in. Much as the Thirteenth Amendment (if I remember right) limits specific performance of employment contracts. The only thing I found (courtesy of a 2019 law review article) is a 1982 Indiana Court of Appeals case involving a contract for a newspaper to run an ad for a political candidate. The court enjoined to newspaper to perform the contract and run the ad. As to the First Amendment, the court ended the opinion as follows:

The appellant finally contends that the trial court's decision violated its first amendment guarantee of freedom of the press. Again, we agree with the appellant that a newspaper has a right to publish or reject advertising as its judgment dictates. However, once a newspaper forms a contract to publish an advertisement, it has given up the right not to publish the ad unless that right is specifically reserved or an equitable defense to publication exists. The Herald-Telephone's first amendment right is not being infringed. It may still choose to publish or not publish any material it wishes, as long as the decision is made before a binding contract is formed. The trial court's decision is not constitutionally infirm.

It would appear that a party can contract away any right against compelled expression. I have asked my wisest contracts colleagues for more; I will update if I hear anything. I am leaving comments open for anyone who knows anything about the contracts side of this.

Posted by Howard Wasserman on April 10, 2024 at 12:41 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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