Bringing Structure to the Law of Injunctions Against Expression

Part I of this Article reviews the Court\u27s cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court\u27s prior restraint decisions. Part I also reviews the Court\u27s other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen\u27s interaction with the Court\u27s previous decisions and discusses how Madsen furthers the incoherence of the Court\u27s previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction\u27s function as a proxy for illegitimate motive does not hold with injunctions as it does with statutes. Part IV suggests that a more direct search for illegitimate motives might be appropriate in the context of injunctions. It further explicates the manner in which courts can accomplish this. Finally, Part V discusses whether certain miscellaneous issues particular to injunctive relief, such as the contempt power, the collateral bar rule, and interim relief, still justify a rule of special antipathy toward all or some injunctions