Featured Guest Blogger Sarah Hinchliff Pearson

Allowing the Presses to Roll: How the Second Circuit Expanded First Amendment Protections Despite Resistance from the Estate of J.D. Salinger

As most journalists probably know, Courts interpreting the First Amendment have always strongly resisted any “prior restraints” on speech because they suppress expression before a court can determine that the speech should indeed be denied First Amendment protection. In other words, our system says “we won’t prevent you from speaking, but we may punish you for it after the fact.” The breadth of protection goes rather far. Back in 1971, a federal judge deemed national security concerns to be insufficient to prevent publication of the Pentagon Papers, an internal defense department study of the Vietnam War that had been leaked to the New York Times.

What could be more important than national security? Well, the answer is copyright law. Despite the strong constitutional presumption against prior restraints on speech, historically copyright owners have been able to prevent publication of other works before trial simply by showing that the defendant’s work was likely to infringe their copyright. In April, however, the Second Circuit decided an important case involving the classic novel Catcher in the Rye that will begin to address this inconsistency under the law.

The case, Salinger v. Colting, is a copyright infringement suit by Salinger’s estate against a 2009 novel, “60 Years Later: Coming Through the Rye,” by Fredrick Colting (or J. D. California, which Mr. Colting adopted as his pen name for the book). The book, which was published in Europe (Colting is a Swedish writer) draws on themes and characters from the original 1951 Catcher in the Rye, including using both Holden Caulfield and J.D. Salinger as characters, with Caulfield, 76 years old now and on the run from a nursing home. Salinger, who was as famous for being a recluse as he was for his youthful literary achievements, died earlier this year at the age of 91, but his estate requested a preliminary injunction barring distribution of the defendant’s book, which means the book could not be published until after a full trial on the merits of the copyright claim. The district court granted the preliminary injunction, but the Second Circuit vacated the order and in doing so, significantly expanded the test for issuing preliminary injunctions in copyright cases.

While the case has major First Amendment implications, it is important to point out that the Second Circuit did not actually make its decision on constitutional grounds. Instead, the Court was applying recent Supreme Court precedent involving some fairly technical procedural law. In a unanimous opinion relating to a 2006 patent law case, the Supreme Court had already declared that courts must apply a traditional four-factor test before granting injunctive relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that damages are inadequate compensation for the injury; (3) that the balance of hardships between the two parties tips in its favor; and, (4) that the public interest would not be disserved by a permanent injunction.

In the Salinger case, the Second Circuit held these same principles apply for preliminary injunctions that are issued for alleged copyright infringement. In other words, for the presses to be halted in advance of publication (“prior restraint”), there has to be the same kind of air-tight case that one might demand for any other injunction; otherwise, let ‘em roll. To justify and injunction, the copyright holder must actually demonstrate that he or she is likely to be irreparable harmed without the injunction, and that such hardship is likely to be worse than any potential harm to the defendant if the injunction is issued. The Second Circuit explained that such balancing must take into account the important First Amendment interests of the defendant in cases like Salinger, which involve the distribution of expressive works. In other words, the Court recognized that the defendant experiences a First Amendment harm by not being able to publish his book, even if the restraint is temporary. This is the same perceived harm recognized in all cases involving prior restraints, but one that has gone largely unacknowledged in copyright cases until now.

Finally, the court must consider the public interest before granting a preliminary injunction. In its decision, the Second Circuit explained the public has a First Amendment interest in receiving information, which is furthered by encouraging and promoting free expression. This aspect of the Court’s holding is especially significant because it explicitly recognizes the potential public harm in granting preliminary injunctions in copyright cases.

Overall, the new standard will make it much more difficult for copyright owners to prevent publication of allegedly infringing works before trial. While Salinger was decided by a Circuit Court of Appeals and not the Supreme Court, the Second Circuit is a major forum for copyright cases, and it is extremely influential. Yet even with the decision to allow publication, the case still needs adjudication on the merits. Does Colting’s novel represent an unauthorized “sequel,” or should it be more appropriately be considered a “parody,” which would then clearly be granted protection under the First Amendment? Second Circuit Judge Guido Calabresi, a PJP Board Member, gave it a description more fitting for a critic than a lawyer: while deciding to reverse the injunction on the book, he nonetheless declared it “a rather dismal piece of work.”