West Virginia Record

Thursday, April 9, 2020

Law professor says Williams' motion for restraining order should be denied

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By Kyla Asbury | Mar 26, 2020

Woodywilliams

HUNTINGTON — A University of California-Los Angeles School of Law professor filed an amicus brief in a case involving the author of a book written about Hershel "Woody" Williams.

Eugene Volokh filed the amicus brief March 26, contending that Williams' motion for a temporary restraining order should be denied for at least two reasons.

"First, West Virginia law—which this Court should apply in this diversity suit—categorically forbids injunctions in libel cases," the amicus brief states. "Second, First Amendment law forbids pretrial injunctions in libel cases."


Volokh

Volokh contended in the brief that West Virginia law forbids injunctions against libel and against right of publicity infringements and that First Amendment law forbids pretrial injunctions against libel and right of publicity infringements in any event.

"If an injunction is unavailable to a West Virginia plaintiff suing a West Virginia defendant in state court, the same rule applies to a West Virginia plaintiff suing a Texas defendant under West Virginia law in a case removed to federal court," Volokh wrote. "Relatedly, an out-of-state defendant should not be deprived of an important substantive protection offered by West Virginia law—the ban on injunctions in libel cases—just by exercising his federal right to remove the case to federal court."

Volokh wrote that any injunction restricting speech may go into effect only after a final determination on the merits, following a trial, and not based on a mere finding of likelihood of success on the merits at a pretrial injunction hearing.

Williams filed the motion for a temporary restraining order March 21, claiming that he would suffer significant damages if the book, which was published March 20, was allowed to remain on shelves.

Bryan Mark Rigg argued that Williams failed to identify any defamatory or reputationally damaging statements that he's been alleging harm from.

Williams, 96, filed the lawsuit May 31 in U.S. District Court for the Southern District of West Virginia against Rigg and his then-publishing companies.

Williams claims in 2015, he met Rigg while accompanying other veterans on a tour of Guam and Iwo Jima and had several conversations with him over the years about the possibility of collaborating for a book.

By 2018, there was a deterioration of Williams' and Rigg’s relationship, resulting in a “significant breakdown in communication” between the two. and Williams alleged that Rigg failed and refused to provide subsequent drafts of the book.

Williams is seeking a restraining order to prevent Rigg from publishing the book, as well as compensation and the return of his personal property. Williams is represented by J.H. Mahaney, J. Tanner Watkins and Brittany S. Given of Dinsmore & Shohl.

Rigg is represented by Thomas M. Hancock and Alexander C. Frampton of Nelson Mullins Riley & Scarborough in Huntington; and Geoffrey Scott Harper of Winston & Strawn in Dallas, Texas.

U.S. District Court for the Southern District of West Virginia case number: 3:19-cv-00423

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U.S. District Court for the Southern District of West Virginia