Allowing the Presses to Roll: How the Second Circuit Expanded First Amendment Protections Despite Resistance from the Estate of J.D. Salinger
As most journalists probably know, Courts interpreting the First Amendment have always strongly resisted any “prior restraints” on speech because they suppress expression before a court can determine that the speech should indeed be denied First Amendment protection. In other words, our system says “we won’t prevent you from speaking, but we may punish you for it after the fact.” The breadth of protection goes rather far. Back in 1971, a federal judge deemed national security concerns to be insufficient to prevent publication of the Pentagon Papers, an internal defense department study of the Vietnam War that had been leaked to the New York Times.
The case, Salinger v. Colting, is a copyright infringement suit by Salinger’s estate against a 2009 novel, “60 Years Later: Coming Through the Rye,” by Fredrick Colting (or J. D. California, which Mr. Colting adopted as his pen name for the book). The book, which was published in Europe (Colting is a Swedish writer) draws on themes and characters from the original 1951 Catcher in the Rye, including using both Holden Caulfield and J.D. Salinger as characters, with Caulfield, 76 years old now and on the run from a nursing home. Salinger, who was as famous for being a recluse as he was for his youthful literary achievements, died earlier this year at the age of 91, but his estate requested a preliminary injunction barring distribution of the defendant’s book, which means the book could not be published until after a full trial on the merits of the copyright claim. The district court granted the preliminary injunction, but the Second Circuit vacated the order and in doing so, significantly expanded the test for issuing preliminary injunctions in copyright cases.