When we apply to the court of appeal for a supervisory writ, our first task is to persuade the court to exercise its supervisory jurisdiction to consider the application’s merits. To do this, we often argue either that the trial court’s judgment causes irreparable injury (meaning an injury that cannot be corrected on appeal after final judgment) or that the case meets the three criteria of Herlitz Contruction Co. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 (La. 1981): (1) the trial court’s judgment is arguably incorrect; (2) reversal would terminate the litigation; and (3) there is no dispute of fact to be resolved.
If you represent a defendant with a First Amendment defense, that defense may be another way to persuade the court to decide the merits. The Louisiana Fourth Circuit said so explicitly in Roppolo v. Moore, 93-2361, p. 2 (La. App. 4 Cir. 7/27/94), 644 So. 2d 206, 208*:
This Court believes that the exercise of its supervisory powers should be liberally invoked where First Amendment freedoms are at stake. The exercise of First Amendment rights should not be discouraged by the threat of harassing lawsuits.
In support of its stance, the Fourth Circuit cited the Louisiana Supreme Court’s decision in Mashburn v. Collin, 355 So. 2d 879 (La. 1977). Mashburn contains the following quotable quotes:
In cases affecting the exercise of First Amendment liberties, proper summary judgment practice is essential. [Id. at 890.]
. . .
Summary adjudication may be thought of as a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press. [Id. at 891.]
Two other cases worth a look in this situation are Schaefer v. Lynch, 406 So. 2d 185 (La. 1981), and Batson v. Time, Inc., 298 So. 2d 100 (La. App. 1 Cir. 1974). In these cases, the Louisiana Supreme Court and the Louisiana First Circuit respectively granted writs to decide the merits of First Amendment issues raised in the writ application. In Schaefer, the Louisiana Supreme Court granted the writ “to determine whethe trial on the merits in this libel action would infringe on the rights of freedom of speech and freedom of the press guaranteed under the First and Fourteenth Amendments of the United States Constitution.” 406 So. 2d at 187. In Batson, the First Circuit suggested that a case involving a First Amendment defense also involves the prospect of irreparable injury. After discussing the First Amendment arguments raised by the defendants and applicants but finding that it lacked appellate jurisdiction, the First Amendment considered the merits under its supervisory jurisdiction because “adequate remedy does not exist by appeal, and ... irreparable injury might otherwise result.” 298 So. 2d at 106.
* Disclosure: Roppolo was one of my early successes.