United States District Court, D. Nevada
before the court is plaintiff List Industries Inc.’s
ex parte motion for a temporary restraining order
(TRO) (ECF No. 3) and ex parte motion for a
preliminary injunction (ECF No. 4). Plaintiff requests this
court to enjoin defendant Lawrence (Larry) List from
“contacting, intimidating or otherwise interfering in
any way with any employee, agent, representative, vendor,
distributor, customer and potential vendor, distributor or
customer of List Industries, and any of their subsidiaries,
in any form or fashion, including, but not limited to, in
person, by letter, e-mail, text, any social media and by
telephone and/or fax, for any reason, pending the outcome of
this action.” (ECF No. 3 at 1).
August 11, 2017, plaintiff filed its complaint against
defendant. (ECF No. 1).
August 15, 2017 plaintiff filed the instant motions for a TRO
and motion for a preliminary injunction. (ECF Nos. 3, 4). On
the same day, plaintiff filed affidavits in support of the
motions. (ECF Nos. 5, 6).
August 23, 2017, plaintiff filed an affidavit of service
indicating that plaintiff personally served defendant
Lawrence (Larry) List the instant motions for a TRO and
preliminary injunction on August 16, 2017. (ECF No. 9).
Although defendant has notice of both motions, he has not
been heard on them.
motions for a temporary restraining order and preliminary
injunction (ECF Nos. 3, 4) allege the following facts.
Defendant Larry List is one of the grandsons of the founder
of List Industries and, at one point many years ago, owned
shares in List Industries, but his interest was repurchased
in full. (ECF No. 3 at 2). “Sadly, [Larry’s
brother] and the representatives of List Industries are
informed and believe that Larry has succumbed to a disease,
most likely alcoholism, and become increasingly hostile,
obscene and threatening toward [his brother JR, the president
of List Industries], other representatives of List Industries
and the vendors, distributors and customers of the Company. .
. . Larry clearly seeks to defame his brother and those who
manage and work for List Industries . . . .”
Id. “List Industries has endured attacks from
Larry since 2012, but even proceedings in a lower court have
not stopped his behavior.” Id. at 3. Larry has
left “threatening and obscene messages on List
Industries’ counsel’s voicemail system, filled
with threats, personal insults, and profanity. Id.
“Larry’s messages became so vile and personal
that eventually Florida counsel became concerned for the
safety of his staff and implemented security precautions at
this office.” Id. “After a brief
respite, by 2015, Larry’s threats, via e-mail and voice
mail, were arriving on the Company’s website and on its
employees’ voice mails.” Id. List
Industries, on behalf of JR List (Larry’s brother)
personally, obtained a temporary protective order (TPO) from
the Henderson Justice Court in Nevada, and notified the FBI.
Id. “Despite the TPO, Larry’s harassing
phone calls and messages continued, specifically accusing
List Industries of selling defective lockers and performing
substandard installations. . . . Larry went so far as leaving
a threatening, profanity laced message with J R Lists’s
golf club and another obscene and insulting message with a
female representative of a Company client.”
motions continue, alleging further threatening and defaming
communications from defendant Larry List to, among other
people, List Industries employees, customers, business
partners, vendors, and distributors. Id. at
3–9. The motions allege that he even sent a false lead
to a detective at Penn State University attempting to tie
List Industries’ product to the Jerry Sandusky scandal.
Id. Many of these communications allegedly contained
threatening and profane language. Id.
the allegations is that on or about December 21, 2016,
“Larry sent an e-mail to a [List Industries] customer
which alleged it could not legally sell List Industry
products and threatened to hold that customer
‘responsible’ for doing so.” Id.
at 4. Another specific allegation is that on May 25, 2017,
“Larry sent an e-mail to fifteen (15) of List
Industries’ business partners, demanding that Colin
List ‘resign’ and alleging that Colin List is a
‘sexual pervert’, Colin ‘verbally sexually
assaulted’ him, along with another List employee, J R
List physically assaulted him, and he had been
‘violated, harassed and ripped off’ by List
Industries.” Id. at 5.
also cited various hyperlinks to audio files on the internet
that plaintiff purports represent true and correct copies of
voice mail messages from Larry List. (See, e.g., ECF
No. 5 at 2). But plaintiff has not provided the court with a
physical copy of these files, such as on a CD or other
electronic information storage device. Therefore, they are
not part of the record: “Neither a hyperlink nor any
site to which it refers will be considered part of the
official record. Hyperlinks are simply convenient mechanisms
for accessing material cited in a filed document. If a party
wishes to make any hyperlinked material part of the record,
the party must attach the material as an exhibit.” LR
IA 7-3(c)(2). Regardless, because this court denies the
instant motions on other grounds, this court can assume for
the purposes of these motions that the audio records contain
threatening, profane, defamatory messages from Larry List as
The First Amendment: Prior Restraints, Overbreadth, and
shall make no law . . . abridging the freedom of
speech.” U.S. Const. amend. I. While it is true that no
one “would have the hardihood to suggest that the
principle of freedom of speech sanctions incitement to
riot,” Carroll v. President & Comm'rs of
Princess Anne, 393 U.S. 175, 180 (1968) (quoting
Cantwell v. Connecticut, 310 U.S. 296, 308
(1940))-or, perhaps as the plaintiff alleges here, the
tortuous interference with contracts-it is equally true that
“[a] free society prefers to punish the few who abuse
rights of speech after they break the law than to throttle
them and all others beforehand,” Southeastern
Promotions Ltd. v. Conrad, 420 U.S. 546, 559 (1975).
Indeed, the United States Supreme Court has declared that
“prior restraints on speech and publication are the
most serious and the least tolerable infringement on First
Amendment rights.” Nebraska Press Assn. v.
Stuart, 427 U.S. 539, 559 (1976); see also Tory v.
Cochran, 544 U.S. 734 (2005).
term prior restraint is used to describe administrative and
judicial orders forbidding certain communications
when issued in advance of the time that such communication
are to occur.” Alexander v. United States, 509
U.S. 544, 550 (1993) (emphasis in original) (internal
quotation marks omitted) (citation omitted). “Temporary
restraining orders and permanent injunctions-i.e.,
court orders that actually forbid speech activities-are
classic examples of prior restraints.” Id. A
prior restraint bears a “heavy presumption against its
constitutional validity.” See New York Times v.
United States, 403 U.S. 713, 714 (1971) (quoting
Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70
problem of prior restraints is multiplied when a court issues
one before a proper trial on the merits. “[A]
preliminary injunction poses a danger that permanent
injunctive relief does not: that potentially protected speech
will be enjoined prior to an adjudication on the merits of
the speaker’s or publisher’s First Amendment
claims.” DVD Copy Control Ass’n, Inc. v.
Bunner, 75 P.3d 1, 21 (Cal. 2003), as modified
(Oct. 15, 2003) (Moreno, J., concurring) (citing
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human
Relations, 413 U.S. 376, 390 (1973) (noting that an
order did not “endanger arguably protected
speech” because, in part, “no interim relief was
granted, the order will not have gone into effect before our
final determination that the actions of the Pittsburgh Press
problem with preliminary injunctions and temporary
restraining orders that restrict speech is that a person who
violates a court order risks punishment even if the order
itself is later deemed unconstitutional: “[A] court
order must be obeyed until it is set aside, and . . . persons
subject to the order who disobey it may not defend against
the ensuring charge of criminal contempt on the ground that
the order was erroneous or even unconstitutional.”
Stephen Barnett, The Puzzle of Prior Restraint, 29
Stan. L. Rev. 539, 552 (1977) (citing United States v.
Dickinson, 465 F.2d 496 (5th Cir. 1972)).
in Carroll v. President and Comm’rs of Princess
Anne, the United States Supreme Court declared
unconstitutional a 10-day restraining order “issued ex
parte, without formal or informal notice to the petitioners
or any effort to advise them of the proceeding.” 393
U.S. at 181. Likewise, in Quantity of Copies of Books v.
State of Kansas, the supreme court held unconstitutional
the seizure of allegedly profane books because the court did
not first afford the seller of the books an adversary
hearing. 378 U.S. 205, 211 (1964).
any restriction on speech must be narrowly tailored to
achieve its lawful purpose; it must burden no more speech
than necessary to accomplish its desired goals. Madsen v.
Women’s Health Center, 512 U.S. 753, 765 (1994).
That means an order restricting speech must be “couched
in the narrowest terms that will accomplish the pin-pointed
objective permitted ...