Freedom of speech and injunctions in intellectual property cases

Preliminary injunctions against libel, obscenity, and other kinds of speech are generally considered unconstitutional prior restraints. Even though li bel may inflict truly irreparable harm on its victim, the most a libel plai ntiff can hope for is damages, or perhaps a permanent injunction after fina l adjudication, not preliminary relief: Professors Lemley and Volokh argue the same rule should apply to preliminary injunctions in many copyright, tr ademark, right of publicity, and trade secret cases. They note that intelle ctual property rights, unlike other property rights, are a form of content- based, government-imposed speech restriction. The mere fact that the restri ction is denominated a "property right" should not exempt it from conventio nal First Amendment scrutiny, or justify government action that restricts s peech which ultimately proves to be constitutionally protected. This is esp ecially so because in most cases, damages would be a relatively effective r emedy. The Court's prior restraint doctrine and sound First Amendment polic y suggest that preliminary injunctions in intellectual property cases are o ften (though not always) unconstitutional.