Update: Dr. Mario Saad Asks Court To Reconsider Prior Restraint On Epically Ridiculous Grounds

Last week I wrote about how a Massachusetts federal court rejected Dr. Mario Saad's bumptious demand for a temporary restraining order forbidding the American Diabetes Association from publishing statements of concern about his scientific articles.

As I said, that was not a close call. But Dr. Saad, and his lawyers, are determined, in the sense of "completely out of their minds." They filed a motion for reconsideration, supported by what I will call, in an excess of mercy, a legal brief.

Federal courts strongly disfavor motions for reconsideration; generally you have to cite facts or law that you could not have cited before. Dr. Saad doesn't. Dr. Saad argues . . . well. I won't characterize it. Let me quote it.

Narrowly focusing on the expression of concern – this is speech that has already been published both online and in print format and has been disseminated to countless individuals. Dr. Saad’s request for injunctive relief, asking this Court to order this existing speech to be removed from publication, obviously does not constitute a prior restraint.

In other words, Dr. Saad thinks that when he asks the Court to order the ADA not to publish items in its print magazine, and to take down its online content, that's not "prior restraint" because the ADA has already gotten to speak once.

Dr. Saad does not cite a single case relating to the doctrine of prior restraint, the core issue he is arguing about.

That is not an argument I'd expect from a lawyer. That is an argument I'd expect from a guy trying to start a fight in a bowling alley. That is an argument that shows that the advocate making it either (1) has no idea what prior restraint is and is too lazy and/or stupid to look it up, or (2) thinks the judge is very, very gullible, or (3) both.

As the ADA points out with remarkable patience, that's not what prior restraint means. Prior restraint doesn't mean "once they've said it once you can keep them from saying it again." Prior restraint is when a court uses the force of law to limit speech before a final determination of whether it is lawful. That's exactly what Dr. Saad is asking for.

I cannot immediately recall a lawyer making an argument this breathtakingly ridiculous. I hope that the judge sua sponte imposes sanctions.

Edited to add: A bowling alley line in a prior restraint post wasn't a Lebowski reference. I'm not that clever.

Last 5 posts by Ken White

Comments

  1. ketchup says

    That is an argument that shows that the advocate making it either (1) has no idea what prior restraint is and is too lazy and/or stupid to look it up, or (2) thinks the judge is very, very gullible, or (3) both.

    How about (4) is an attorney who has a crazy client with money and will do whatever the client tells him to do as long as he gets paid

  2. Noscitur a sociis says

    Style points to the defendants for implicitly comparing Saad to a convicted sex offender.

  3. Katherine says

    Oh c'mon, surely some of Prenda's stuff exceeded this….the Gay Marriage motion comes to mind.

  4. Fasolt says

    That is not an argument I'd expect from a lawyer. That is an argument I'd expect from a guy trying to start a fight in a bowling alley.

    A guy that has had way too many "Mean Caucasians". Lebowski reference intended. :)

  5. Dan Weber says

    "Your Honor, clearly, you didn't hear what I said, because you didn't rule for me, so let me say it louder this time."

  6. Dan says

    Ken, I'm getting a "403 forbidden" error when I try to read any of the linked documents.

    Can haz a saad excuse for a legal argument?

  7. says

    @Dan, I've just confirmed that all the PDF files are downloadable. Perhaps your connection passes through a proxy that filters such files.

  8. I Was Anonymous says

    This sounds almost like the lawyers for the SCOundrels in the SCO/IBM/Novell fiaSCO.

  9. EGPF says

    "an attorney who has a crazy client with money" — bigger issue is, perhaps the money is not even exactly his to spend on such frivolous things. I would bet this legal motion is being covered by the university, i.e. public, tax-payers' pockets…

  10. notthatJack says

    My word, that underlining and bolding.
    "Your Honor, clearly, you didn't hear what I said, because you didn't rule for me, so let me say it louder this time."
    Indeed.

    I am literally salivating in anticipation of the Court's response to these …things which resemble in some ways a legal motion and brief, but clearly fall short of the mark.

  11. Flip says

    It's even worse.

    This Court should enjoin the ADA from continuing to publish its expression of concern regarding Dr. Saad’s four articles in Diabetes until, at the very least, the March I.C. is completed.

    The request is basically "we're not asking for prior restraint, except, yes we are."

  12. Babs says

    @David Byron: I get a 403 also. I have no problem with Nicholas Weaver's links, so it is perhaps a WordPress issue.

  13. notthatJack says

    Thanks for the link, Nicholas Weaver.

    (FWIW, I've had no problem accessing any of the PDFs linked here.)

    …Am I wrong for being disappointed that Judge Hillman was so diplomatic in sidestepping the thoroughly incorrect representation of prior restraint? Aside from the missed opportunity for schadenfreude, Saad's lawyer might genuinely need the education in legal terminology the judge avoided providing.

  14. anne mouse says

    I'm with NotThatJack, and Ken: very sad that the judge simply ignored their "argument" and went with "well I wouldn't have issued the injunction anyway, for a whole other reason." I'd half-expected a true smackdown – "stop wasting my time, you not only haven't understood the concept of prior restraint, you haven't understood the purpose of motions for reconsideration, and you're so ludicrously wrong the other party might want to ask for fees, wink wink", though I'm far too well-acquainted with the American judicial system to expect sua sponte sanctions.

  15. DB says

    The judge's reply was very well considered. It basically said "snowball.. hell.. learn to read between the lines".

    Turning down the repeated request for a preliminary injection by again saying "prior restraint" wouldn't have advanced the case. Telling the plaintiff "you have no chance of winning" might get them to face reality.

  16. EGPF says

    Any update on this? According with their appeal, UNICAMP should have presented a new investigation result by the end of last month? Or they gave up on investigating since the judge did not want to hear their result?