In this case, Plaintiff SIG Sauer, Inc. seeks a preliminary injunction prohibiting Defendant Jeffrey S. Bagnell and his law firm from displaying an animation that depicts alleged product defects in SIG’s P320 semi-automatic pistol. SIG claims that the animation includes material falsehoods and misrepresentations regarding the P320 in violation of the Lanham Act, 15 U.S.C. § 1125(a), New Hampshire’s unfair competition law, RSA 358:A:1, I, and New Hampshire’ common law defamation tort.  On May 23, 2022, the ACLU and ACLU-NH filed an amicus brief in this case arguing that SIG’s request for a preliminary injunction would amount to an impermissible prior restraint on speech addressing matters of public concern.

As this brief argues, prior restraints are anathema to the First Amendment, which was specifically designed to prevent the government from suppressing speech before it occurs. In particular, it is well established that courts cannot enjoin allegedly defamatory speech based on preliminary findings of falsity. At the preliminary injunction stage, the risk of unfounded judicial censorship is simply too great for the First Amendment to bear. SIG argues that its requested injunction does not implicate this aspect of the bar on prior restraints because, according to SIG, Mr. Bagnell’s display of the Animation constitutes commercial speech. Even if a less stringent prior restraint test applies to commercial speech, however, the values underlying the bar on prior restraints counsel strongly against SIG’s requested preliminary injunction.  In light of these considerations, the ACLU and ACLU-NH urge the Court to deny SIG’s motion for a preliminary injunction.

Attorney(s)

Gilles Bissonnette, ACLU-NH Legal Director, and Henry Klementowicz, ACLU-NH Senior Staff Attorney

Date filed

May 23, 2022

Court

U.S. District Court for the District of New Hampshire

Judge

Landya Boyer McCafferty

Status

Pending

Case number

1:22-cv-00078-LM