Document Type


Publication Date

Fall 2000


Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's 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's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with injunctive relief because the content-based/content-neutral distinction's 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.



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