In their zeal to rationalize support for Obama's decision making, several people on the left are arguing that Doninger is "OK" because its only a preliminary injunction hearing.

I reject that view for three reasons.

1. The ruling does not present the possibility that Doninger's blog post might turn out to be protected speech nor does it narrowly refuse the injunction based on a concern that there is some possibility that Doninger might loose at trial. The ruling very strongly favors the school. It argues that Doninger has no chance because her speech clearly isn't protected by the First Amendment. This isn't a case where the court thought it was a close call.

2. As I've argued elsewhere, the reasoning in this decision is deeply flawed and corrosive to democratic values. The fact that its just a preliminary injunction doesn't change the character of the argument being made.

3. The First Amendment is a strong positive right. The government can rarely sanction acts of expression. We should expect that most preliminary injunctions for first amendment claims will be issued unless the claim is facially unreasonable.

Another point on Doninger.