Judge issues, lifts restraining order preventing WBTV investigation from airing

Published: Nov. 14, 2019 at 9:53 PM EST

CHARLOTTE, N.C. (WBTV) – A Mecklenburg County judge issued a temporary restraining order early Wednesday evening prohibiting WBTV and Investigative Reporter David Hodges from airing an investigative story. That order was dissolved following a court hearing Thursday.

Judge Lisa Bell signed the order, which was sought by SL Recovery, LLC, a towing company that operates in Charlotte.

The towing company is the subject of a WBTV investigation that aired Thursday at 6:00 p.m. Specifically, the story focused on the company’s efforts to tow and, later, sell the car of a soldier deployed to the US border with Mexico.

Cedric Rainey, a lawyer representing SL Recovery, alleged in his motion seeking the restraining order that Hodges, the WBTV reporter assigned to the story, was using false information to prepare his investigative report.

DOCUMENT: Filings from SL Recovery

“Hodges has not produced any evidence to substantiate his claims that Plaintiff has engaged in predatory towing practices, and thus far, Defendant Gray Television, Inc., (sic) has refused to pull the story which will air on November 14 if temporary and/or permanent injunctive relief is not granted to Plaintiff,” the motion said.

The motion also claimed SL Recovery had lost business and received threats of physical violence as a result of an advertisement being run by WBTV to promote the piece.

Rainey’s motion did not give any details of the purported threat of violence but did say a car dealership that had previously purchased cars from SL Recovery had informed the tow company it would no longer do so as a result of WBTV’s reporting.

The order signed by Bell late Wednesday prohibited WBTV “from taking any further action with regard to the WBTV On Your Side investigative report of or relating to Plaintiff’s towing business until a hearing is held on the merits of Plaintiff’s motion for preliminary injunction.”

A hearing on the motion was held Thursday afternoon in front of Bell.

Hodges and WBTV were represented at the hearing by media law attorney Jon Buchan.

Prior to the hearing, Buchan filed a motion to dissolve the temporary restraining order, which noted the strong body of caselaw from state and federal courts ruling that judges cannot restrain the speech of media outlets before it is published, as Bell’s order did in this case.

DOCUMENT: WBTV motion to dissolve temporary restraining order

“The Supreme Court has thus rejected efforts to impose prior restraints in various circumstances, and has never upheld such a prohibition on speech based on a claim that publishing false and defamatory statements would cause irreparable harm and justify such a draconian infringement on the First Amendment guarantee of freedom of speech and of the press,” Buchan argued in his motion and, later, during the hearing.

“You don’t keep the news media in this country from publishing truthful—or what they believe to be truthful—information in this country,” Buchan argued at Thursday’s hearing.

Rainey, the attorney for SL Recovery, began his arguments at Thursday’s hearing by saying the First Amendment was not the issue here.

“There hasn’t been a prior restraint at any level,” Rainey said, dismissing the argument that getting a temporary restraining order preventing WBTV from airing an investigative report is a violation of the First Amendment.

Because Rainey contended WBTV’s story was premised on false statements, he said the court would be allowing SL Recovery’s reputation to be further harmed by lifting the restraining order.

“The court would be tacitly permitting them to make ongoing libelous statements,” Rainey said.

Related: Charlotte company tows, sells soldier’s car while she was deployed

But Buchan, the attorney for Hodges and WBTV, argued that the law allows companies and individuals to sue for money damages in the event they have been defamed.

Buchan told Judge Bell allowing the restraining order to remain in place would set dangerous precedent for the rights of a free and independent press moving forward and said continuing to prohibit WBTV’s publication of the story would turn the court into a venue where reporting was deemed to be truthful or not prior to publication.

“That’s not how the First Amendment was designed to work or has ever worked,” Buchan said. “When he says this is not a prior restraint, this is the definition of a prior restraint.”

During the hearing, Bell said Rainey’s motion was presented to her late Wednesday and there were “significant procedural flaws” in how the order was presented to her.

Bell said she used two factors in weighing whether to sign the order retraining the station’s constitutionally protected right to broadcast its story: the fact that Rainey claimed Hodges had been confronted with alleged inaccuracies in his story and presented a disregard for the truth and that SL recovery claimed to have received threats of violence as a result of the ad promoting WBTV’s story.

At the time she signed the restraining order, Bell said, she thought the potential significant harm to SL Recovery outweighed the potential harm to WBTV by having to hold its story.

“At that point alone, I stand corrected,” Bell said.

Ultimately, Bell granted WBTV’s motion to dissolve the restraining order and acknowledged she should not have signed it in the first place.

“I conclude that the court was in error in granting a temporary restraining order,” Bell said in announcing her ruling granting WBTV’s motion.

SL Recovery has filed a defamation lawsuit against WBTV alleging the station’s story is false and defamatory. WBTV has not yet responded to the merits of the towing company’s claims but did air its story at 6:00 p.m.

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