      Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
      Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
      303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
      corrections@appellate.courts.state.ak.us.



               THE SUPREME COURT OF THE STATE OF ALASKA

GLEN ALSWORTH, SR. and          )
LORENE “SUE” ANELON,            )                       Supreme Court No. S-14978
                                )
                Petitioners,    )                       Superior Court No. 3DI-12-00059 CI
                                )
    v.                          )                       OPINION
                                )
VICTOR SEYBERT, JOHN HOLMA N, )                         No. 6900 – April 25, 2014
KIMBERLY WILLIAMS, GEORGE G . )
JACKO, and RICK DELKITTIE, SR., )
                                )
                Respondents.    )
                                )

              Petition for Review from the Superior Court of the State of
              Alaska, Third Judicial District, Dillingham, Steve W. Cole,
              Judge.

              Appearances: Rebecca J. Hozubin and Michael A. Moberly,
              Law Office of Hozubin & Moberly, Anchorage, for
              Petitioners. Timothy A. McKeever and Scott Kendall,
              Holmes Weddle & Barcott, P.C., Anchorage, for
              Respondents.

              Before: Winfree, Stowers, and Bolger, Justices, and
              Matthews and Eastaugh, Senior Justices.* [Fabe, Chief
              Justice, and Maassen, Justice, not participating.]

              WINFREE, Justice.



      *      Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
I.    INTRODUCTION
             A group of citizens sued two borough assembly members, alleging various
violations of borough and state conflict of interest laws and the common law conflict of
interest doctrine. After the borough took official action facilitating the assembly
members’ defense, the citizens moved to enjoin the assembly members from using their
official positions to defend the lawsuit or pursue personal financial gain. The superior
court granted a preliminary injunction under the balance of hardships standard,
concluding that the citizens faced the possibility of irreparable harm if the injunction
were not granted and that the assembly members were adequately protected by the
injunction. The injunction barred the assembly members from taking various actions in
their official capacities, including speaking about a local mining project.
             The assembly members filed a petition for review, which we granted. They
argue, inter alia, that the superior court applied the wrong preliminary injunction
standard and that the injunction violates their free speech rights. We agree. The court
should have applied the probable success on the merits standard because the injunction
does not adequately protect the assembly members, and the injunction imposes an
unconstitutional prior restraint on speech. Shortly after oral argument, we vacated the
portion of the preliminary injunction barring the assembly members from taking certain
official acts or speaking about the mining project. We now vacate the injunction in full.
II.   FACTS AND PROCEEDINGS
      A.     Facts1
             Petitioner Glen Alsworth, Sr. is the Lake and Peninsula Borough (Borough)


      1
             We base our fact recitation on the superior court’s factual findings, in turn
based primarily on unauthenticated documents attached to Respondents’ unverified
superior court complaint. Because no one contests these facts on appeal, we assume
them to be accurate.

                                           -2-                                      6900
Mayor and, as such, is a voting member of the Borough Assembly. Alsworth owns and
operates Lake Clark Air, an air taxi business serving the Bristol Bay region. Lake Clark
Air has received considerable business from the Borough, the Borough’s School District
(School District), and Pebble Limited Partnership;2 the latter two entities are Lake Clark
Air’s largest revenue sources. Alsworth also owns and operates The Farm Lodge, which
has received income from the School District and Pebble Limited Partnership.
             Petitioner Lorene “Sue” Anelon was, during all times relevant to the
complaint in this case, a voting member of the Borough Assembly. Anelon lost her
reelection bid in November 2012 and no longer is on the Assembly. Anelon has been
employed by Iliamna Development Corporation since at least 2006.                  Iliamna
Development Corporation’s primary client is Pebble Limited Partnership.
             The Respondents are registered voters in the Borough. Respondent Victor
Seybert is also a voting member of the Borough Assembly. We refer to the Respondents
collectively as “Seybert.”
             The Borough Assembly approves the Borough’s and the School District’s
annual budgets. The Assembly, during Alsworth’s and Anelon’s tenures, enacted
resolutions supporting Pebble Mine’s development and subleasing Borough property to
Northern Dynasty Mines, the parent company of Pebble Limited Partnership. On at least
one occasion, Alsworth gave a speech, ostensibly in his official capacity as Mayor,
advocating for Pebble Mine.
      B.     Proceedings
             Seybert filed the present lawsuit against Alsworth and Anelon in May 2012.
In an unverified complaint, to which several hundred pages of unauthenticated



      2
            We refer to Pebble Limited Partnership’s current mineral exploration in the
Borough as Pebble Mine.

                                           -3-                                      6900
documents were attached, Seybert alleged Alsworth and Anelon:                    (1) violated
AS 39.50.090,3 Lake and Peninsula Borough (L&PB) Code § 2.20.090,4 L&PB Charter
§ 15.01,5 and the common law conflict of interest doctrine6 by participating in Assembly
decisions from which they benefit directly and using their official positions to promote




      3
             AS 39.50.090(a) provides in relevant part:
                     A public official may not use the official position or
             office for the primary purpose of obtaining personal financial
             gain or financial gain for a spouse, dependent child, mother,
             father, or business with which the official is associated or in
             which the official owns stock.
               AS 39.50.100(a) provides a private right of action to enforce the conflict
of interest statute: “A qualified Alaska voter may bring a civil action to enforce any of
the sections of this chapter.”
      4
             L&PB Code § 2.20.090 provides, in relevant part:
                    A member of the assembly shall declare a substantial
             financial interest he or she has in an official action and ask to
             be excused from a vote on the matter. The presiding officer
             shall rule on the request for abstention (excusal). The
             decision of the presiding officer on the request may be
             overridden by the majority vote of the assembly.
      5
              L&PB Charter § 15.01(A) provides, in relevant part: “Prohibition. No
elected official may vote on any question on which he has a substantial financial
interest.”
      6
              See Carney v. State Bd. of Fisheries, 785 P.2d 544, 547-49 (Alaska 1990)
(applying common law conflict of interest doctrine from Marsh v. Town of Hanover, 313
A.2d 411, 414 (N.H. 1973)). Unlike AS 39.50.090, which focuses on a public official’s
intent, a common law conflict of interest exists “where a potential exists for a public
officer to influence the outcome of a matter in which he has a direct personal and
pecuniary interest,” regardless of the official’s intent. Marsh, 313 A.2d at 414; accord
Carney, 785 P.2d at 548.

                                           -4-                                          6900

Pebble Mine; and (2) violated AS 39.50.020 and .030 7 by failing to properly report gifts
and income. Seybert sought various forms of injunctive and legal relief. The Borough’s
attorney entered an appearance and filed an answer for Alsworth and Anelon in early
June.
              Sometime after the lawsuit was filed, an unsigned “open letter” on official
Borough letterhead was mailed to Borough residents refuting the claims against Alsworth
and Anelon. The Borough Assembly did not authorize the letter. Shortly thereafter, the
Borough Assembly announced it would hold a June 12 vote on Resolution 12-09 to
undertake Alsworth and Anelon’s legal defense. The Resolution set forth the Borough’s
rationale in providing the defense: (1) “the Borough [did] not believe that the allegations
set out in the Complaint [were] true”; (2) the Alaska Municipal League Joint Insurance
Association (AMLJIA) had denied Alsworth and Anelon coverage for the lawsuit; and
(3) the financial burden “cases of this kind” impose on assembly members “is so onerous
and burdensome that it is highly likely that the prospect of having to defend themselves
against these kinds of claims will deter qualified, competent persons [from] serving as
Borough Assembly members.”
              On June 11 Seybert filed a motion for a temporary restraining order and
preliminary injunction, requesting expedited consideration of the motion in advance of
the Assembly vote on the Resolution. The motion recited the complaint’s allegations and
cited the open letter, use of the Borough attorney, and the upcoming Assembly vote on
Resolution 12-09 as evidence that Alsworth and Anelon were using Borough resources
for personal gain. Seybert asked the court to enjoin Alsworth and Anelon from:
(1) authorizing, approving, accepting, or using any Borough resources to defend against


        7
                AS 39.50.020(a) provides, in relevant part: “A public official . . . shall file
a statement giving income sources and business interests, under oath and on penalty of
perjury . . . .” AS 39.50.030 specifies the statement’s required contents.

                                             -5-                                         6900
the current lawsuit or to investigate, attack, or question the allegations or plaintiffs in the
lawsuit; (2) speaking in favor of Pebble Mine while acting in an official capacity, or
taking any official action against those who oppose Pebble Mine; (3) voting or failing
to declare a conflict of interest when any matters come before the Borough Assembly
related to the lawsuit; and (4) voting, taking official action, or failing to declare a conflict
of interest on matters in which Alsworth or Anelon has a significant financial interest.
              The superior court did not rule on the motion before the Assembly voted
to approve Resolution 12-09 on June 12. Seybert filed a supplemental memorandum on
June 13 expressing concern that the “invalid” Resolution would facilitate Alsworth and
Anelon’s misuse of Borough resources.8 Alsworth and Anelon, proceeding with new
counsel retained by the Borough, opposed the temporary restraining order and
preliminary injunction on June 20. They argued: (1) the claim was not properly before
the court because the Borough had not been joined under Alaska Civil Rule 19(a);
(2) Seybert had not complied with Rule 65’s requirement that an applicant file a verified
complaint or affidavit proving specific facts in support of a motion for a temporary
restraining order or preliminary injunction; (3) Seybert was not likely to succeed on the
merits; (4) Seybert had not demonstrated irreparable injury; (5) Seybert unjustifiedly
delayed seeking injunctive relief; and (6) the balance of equities and public interest
favored abstention.



       8
              Seybert, Alsworth, and Anelon recused themselves from voting on
Resolution 12-09, leaving only four of the seven Assembly members to vote on the
Resolution. Three members voted in favor of the Resolution and one member voted
against it. Seybert alleged the Resolution was invalid because state and Borough laws
provide that actions of a governing body may be adopted only by “a majority of the total
membership of the body”; a majority of the seven-member Assembly requires at least
four affirmative votes, and the Resolution garnered only three. AS 29.20.160(d); L&PB
Charter § 2.08(E); L&PB Code § 2.08.010(E).

                                              -6-                                         6900

              AMLJIA shortly thereafter agreed to fund Alsworth and Anelon’s defense,
despite continuing to contend that “there [was] no coverage with respect to any of the
claims asserted.” Alsworth and Anelon asked Seybert to dismiss his motion for a
temporary restraining order and preliminary injunction because the Borough no longer
would be funding their defense, but Seybert refused. The superior court held a hearing
on Seybert’s motion on August 20. During arguments, Seybert’s counsel announced that
Respondent Rick Delkittie, Sr. recently had received an email supporting Alsworth that
had been sent from one of Anelon’s relatives to an anonymous email list. Alsworth and
Anelon’s counsel did not address the email claim.
              Following the hearing, the superior court issued a written order granting the
motion for a preliminary injunction. The court explained that, although Seybert’s motion
“lacks a ‘verified complaint’ or affidavit proving specific facts,” Rule 65 requires such
evidence only for temporary restraining orders, and the court could consider “hundreds
of pages of exhibits that were filed with the Complaint” in granting a preliminary
injunction.9 The court specifically found Alsworth had a significant financial interest in


       9
               Rule 65(b) allows a court to grant a temporary restraining order without
notice to the adverse party “only if (1) it clearly appears from specific facts shown by
affidavit or by the verified complaint that immediate and irreparable injury, loss, or
damage will result to the applicant before the adverse party or that party’s attorney can
be heard in opposition,” and (2) the applicant explains why notice should not be
required. Rule 65(a) governs preliminary injunctions and makes no reference to
affidavits or verified complaints. Our evidentiary standard at the preliminary injunction
stage remains an open question, and we decline to determine that standard in this case.
See, e.g., Acevedo v. Burley, 994 P.2d 389, 393-94 (Alaska 1999) (Eastaugh, J.
dissenting) (asserting motion lacking “any affidavit or equivalent document (verified
motion or memorandum)” was insufficient to “establish any facts that would have
entitled [plaintiff] to an injunction”); State v. Kluti Kaah Native Vill. of Copper Ctr., 831
P.2d 1270, 1273 (Alaska 1992) (noting “single affidavit containing the obviously self-
interested statements of a single [plaintiff] . . . cannot establish with any genuine
                                                                               (continued...)

                                            -7-                                        6900

the Borough’s and School District’s transportation budgets, and that Alsworth and
Anelon had significant financial interests in advancing Pebble Mine’s development. The
court also found that Resolution 12-09 “was not lawfully enacted” and that, although the
court could not bind the Borough, “it has the authority to enjoin both defendants from
accepting Borough funds.” It concluded that “[a]ny promise or transmittal of Borough
funds made for the purpose of convincing [AMLJIA] to reverse its coverage decision
regarding this proceeding . . . is invalid and unlawful,” and Borough funds could not be
transmitted to AMLJIA for the purpose of securing AMLJIA’s coverage of Alsworth and
Anelon.
              The superior court then applied the balance of hardships standard in
granting the injunction.10 The court identified five irreparable harms Seybert would face
absent an injunction: (1) use of Borough money to fund Alsworth and Anelon’s defense
under Resolution 12-09; (2) risk that AMLJIA’s coverage would not preclude
expenditure of Borough funds under Resolution 12-09; (3) unauthorized use of the



       9
               (...continued)
certainty” that plaintiffs would suffer irreparable harm). But see Univ. of Texas v.
Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is
merely to preserve the relative positions of the parties until a trial on the merits can be
held. Given this limited purpose, and given the haste that is often necessary if those
positions are to be preserved, a preliminary injunction is customarily granted on the basis
of procedures that are less formal and evidence that is less complete than in a trial on the
merits.”); Michael J. Lichtenstein, Settling the Law in the Circuits: Presenting Hearsay
Evidence in a Preliminary Injunction Hearing, 29 A M . J. TRIAL A DVOC . 415 (2005)
(explaining several circuits allow use of inadmissible hearsay evidence to support
preliminary injunction motions).
       10
              See State, Div. of Elections v. Metcalfe, 110 P.3d 976, 978 (Alaska 2005)
(explaining balance of hardships standard is applied only when plaintiff faces danger of
irreparable harm, opposing party is adequately protected, and plaintiff raises serious and
substantial questions going to the merits of the case).

                                            -8-                                       6900

Borough’s letterhead to defend the lawsuit and attack the plaintiffs; (4) unauthorized use
of the Borough’s address and email lists to defend the lawsuit and attack the
plaintiffs; and (5) Alsworth’s and Anelon’s potential failures to fully and timely disclose
their incomes in their financial disclosures. The court also found Alsworth and Anelon
would be adequately protected because the injunction would only require them “to
comply with the law.” It thus concluded that the balance of hardships “weigh[ed]
heavily in favor of granting plaintiffs’ requested preliminary injunction.”
              The preliminary injunction imposed ten orders:
                     1.     Based on the above Findings of Fact and
              Conclusions of Law, the plaintiffs’ Motion for a Preliminary
              Injunction is granted, and defendants’ [sic] Glen Alsworth Sr.
              and Lorene “Sue” Anelon are ordered to immediately cease
              and desist from any and all uses of their official positions in
              the Lake and Peninsula Borough for personal or financial
              gain. More specifically, they are enjoined from taking the
              actions that are set out below.
                     2.     They may not authorize, approve, accept or use
              any Borough funds or resources to defend against this
              lawsuit, including (a) the time and efforts of the Lake and
              Peninsula Borough Attorney, (b) Lake and Peninsula
              Borough staff, property, equipment, website, letterhead or
              any other resources, (c) Lake and Peninsula Borough mailing
              and emailing lists, and (d) any method of mailing, emailing,
              distribution or publication paid for in whole or in part by the
              Lake and Peninsula Borough;
                    3.     They may not authorize, approve, accept, or use
              any Borough funds or resources purportedly appropriated to
              defend this lawsuit through Borough Resolution #12-09,
              which this court finds was not lawfully enacted.
                     4.     The defendants may not authorize, approve,
              accept or use any Borough funds transmitted by the Borough
              through [AMLJIA] for the specific purpose of securing that
              entity’s agreement to reverse its coverage decision regarding

                                           -9-                                       6900

their defense in this proceeding. They can accept AMLJIA
funds for their legal fees that do not otherwise fall into that
category.
       5.    They may not use any Borough facilities,
property or other resources or staff to investigate, attack or
question the allegations in this lawsuit or plaintiffs in this
lawsuit.
       6.      While acting in any official capacity as the
Borough Mayor and/or being a member of the Borough
Assembly, they may not speak in favor of (or against) or
endorse the Pebble Mine Project or any entities with an
interest in the success of the Pebble Mine Project or take any
official action against those who oppose the Pebble Mine
Project and/or related entities.
       7.     They shall not fail to declare a conflict of
interest and/or take official actions when any matters come
before the Borough Assembly related to this lawsuit.
       8.      The defendants shall not fail to declare a conflict
of interest and/or take official action on matters in which they
have a significant financial interest, including, with regard to
Glen Alsworth Sr., the transportation budget of the Lake and
Peninsula School District and the transportation budget of the
Lake and Peninsula Borough, and for both Mr. Alsworth and
Ms. Anelon, any votes relating, directly or indirectly, to the
Pebble Mine Project.
       9.     They may not vote on any matters before the
Borough Assembly in which defendants have a significant
financial interest, including, with regard to Mr. Alsworth, the
transportation budget of the Lake and Peninsula School
Board and the transportation budget of the Lake and
Peninsula Borough, and for both Mr. Alsworth and
Ms. Anelon, any votes relating, directly or indirectly, to the
Pebble Mine Project.




                              -10-                                   6900

                    10. They shall not fail to file timely, complete and
              accurate Public Official Financial Disclosures as required by
              law. (Emphasis in original.)
              Alsworth and Anelon moved for reconsideration, which the superior court
denied. Alsworth and Anelon then petitioned this court for review, arguing: (1) the
injunction impermissibly restricts their freedom of speech and infringes on their
legislative immunity; (2) the superior court erred in applying the balance of hardships
preliminary injunction standard because there is no threat of irreparable harm and
Alsworth and Anelon are not adequately protected under the injunction; and (3) the
superior court erred by finding that the Borough is not an indispensable party. We
granted the petition.
III.   STANDARD OF REVIEW
              Although we “review the issuance of preliminary injunctions for abuse of
discretion,”11 “we review de novo the superior court’s legal determinations in issuing the
preliminary injunction.”12 “We apply our independent judgment to constitutional law




       11
               City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 455 (Alaska
2006) (citing Metcalfe, 110 P.3d at 978). Under the abuse of discretion standard, “ ‘an
injunction will not be disturbed unless contrary to some rule of equity, or the result of
improvident exercise of judicial discretion.’ ” Kluti Kaah, 831 P.2d at 1272 n.4 (quoting
Alaska Pub. Utils. Comm’n v. Greater Anchorage Area Borough, 534 P.2d 549, 557
(Alaska 1975) (quoting Prendergast v. N.Y. Tel. Co., 262 U.S. 43, 50-51 (1923))); cf.
Friends of Recreation Ctr., 129 P.3d at 455 (“We will find an abuse of discretion only
when we are left with a definite and firm conviction, after reviewing the whole record,
that the trial court erred in its ruling.” (quoting DeSalvo v. Bryant, 42 P.3d 525, 528
(Alaska 2002)) (internal quotation marks omitted)).
       12
            Friends of Recreation Ctr., 129 P.3d at 455 (citing People ex rel. Gallo v.
Acuna, 929 P.2d 596, 626 (Cal. 1997)).

                                           -11-                                      6900

issues, and consider precedent, reason, and policy.”13
IV.    DISCUSSION
       A.     The Superior Court Erred In Its Preliminary Injunction Standard.
              A plaintiff may obtain a preliminary injunction by meeting either the
balance of hardships or the probable success on the merits standard.14 The balance of
hardships standard requires balancing the harm the plaintiff will suffer without the
injunction against the harm the injunction will impose on the defendant.15 A preliminary
injunction is warranted under that standard when three factors are present: “(1) the
plaintiff must be faced with irreparable harm; (2) the opposing party must be adequately
protected; and (3) the plaintiff must raise serious and substantial questions going to the
merits of the case; that is, the issues raised cannot be frivolous or obviously without
merit.”16 Our rationale in adopting the balance of hardships rule in A.J. Industries
demonstrates that a court is to assume the plaintiff ultimately will prevail when assessing
the irreparable harm to the plaintiff absent an injunction, and to assume the defendant
ultimately will prevail when assessing the harm to the defendant from the injunction:
              “Where the questions presented by an application for an
              interlocutory injunction are grave, and the injury to the


       13
              Bridges v. Banner Health, 201 P.3d 484, 489 (Alaska 2008) (citing Alaska
Pub. Interest Research Grp. v. State, 167 P.3d 27, 34 (Alaska 2007); Alaska Legislative
Council v. Knowles, 21 P.3d 367, 370 (Alaska 2001)).
       14
              A.J. Indus., Inc. v. Alaska Pub. Serv. Comm’n, 470 P.2d 537, 540 (Alaska
1970), modified in other respects, 483 P.2d 198 (Alaska 1971). We adopted the balance
of hardships standard as an alternative to the rule “requiring a clear showing of probable
success” on the merits. Id.
       15
              Id.
       16
            Kluti Kaah, 831 P.2d at 1273 (quoting Messerli v. Dep’t of Natural Res.,
768 P.2d 1112, 1122 (Alaska 1989)) (internal quotation marks omitted).

                                           -12-                                      6900

              moving party will be certain and irreparable, if the
              application be denied and the final decree be in his favor,
              while if the injunction be granted the injury to the opposing
              party, even if the final decree be in his favor, will be
              inconsiderable, or may be adequately indemnified by a bond,
              the injunction usually will be granted.”[17]
Accordingly, the balance of hardships standard
              applies only where the injury which will result from the
              temporary restraining order or the preliminary injunction can
              be indemnified by a bond or where it is relatively slight in
              comparison to the injury which the person seeking the
              injunction will suffer if the injunction is not granted. Where
              the injury which will result from the temporary restraining
              order or the preliminary injunction is not inconsiderable and
              may not be adequately indemnified by a bond, a showing of
              probable success on the merits is required . . . .[18]
              The superior court concluded in this case that the balance of hardships
militated in favor of granting the preliminary injunction. The court identified five forms
of irreparable harm Seybert would suffer if the injunction did not issue. Alsworth and
Anelon argue the superior court’s irreparable harm finding was in error, but we do not
need to address this issue because we decide this case on the “adequately protected”
prong.
              The superior court summarily concluded the injunction would not cause
unnecessary harm to Alsworth or Anelon: “The defendants are adequately protected
because plaintiffs are essentially asking only that defendants be required to comply with



         17
             470 P.2d at 540 (emphasis added) (quoting Ohio Oil Co. v. Conway, 279
U.S. 813, 815 (1929)).
         18
             State v. United Cook Inlet Drift Ass’n, 815 P.2d 378, 378-79 (Alaska 1991)
(citations omitted) (citing A.J. Indus., 470 P.2d at 540; Alaska Pub. Utils. Comm’n v.
Greater Anchorage Area Borough, 534 P.2d 549, 554 (Alaska 1975)).

                                          -13-                                      6900

the law. The court does not see how any harm could occur from ordering them to
comply with laws that already govern them.”19 Alsworth and Anelon assert three harms
from the injunction: (1) the injunction reduces the number of members available to
conduct Borough business because Alsworth and Anelon are prohibited from taking
official actions on matters related to Pebble Mine, the Borough budget, and the School
District budget; (2) the injunction interferes with Alsworth’s and Anelon’s abilities to
perform their functions as elected officials to the detriment of voters’ expectations; and
(3) the injunction hinders free debate within the Borough by limiting the subjects on
which Alsworth and Anelon may speak. Seybert counters that the preliminary injunction
does not interfere with official duties or free debate because state and Borough laws
already prohibit the enjoined actions.
             The superior court erred by considering the injunction’s harms to Alsworth
and Anelon under the assumption that the enjoined actions will ultimately be found to
be illegal.20 We addressed an analogous situation in State v. Kluti Kaah Native Village
of Copper Center, where the plaintiff sought an injunction ordering the State to comply
with the law and refrain from enforcing “an illegal regulation.”21 We held the superior
court erred in its “adequately protected” analysis because it failed to consider the


      19
             The superior court did not expressly conclude Seybert had raised “serious
and substantial questions going to the merits of the case” — the third prong of the
balance of hardships standard — but we infer the superior court so concluded because
the issues Seybert had raised are not “frivolous or obviously without merit.” See Kluti
Kaah, 831 P.2d at 1273 (quoting Messerli, 768 P.2d at 1122) (internal quotation marks
omitted).
      20
            Cf. A.J. Indus., 470 P.2d at 540 (quoting Ohio Oil Co., 279 U.S. at 815)
(noting “adequately protected” inquiry should presume defendant will ultimately
prevail).
      21
             831 P.2d at 1271.

                                          -14-                                      6900

injunction’s interference with the State’s “role as protector of the resource” and with the
interests of other subsistence users, notwithstanding the alleged illegality of the State’s
actions.22 The proper inquiry under the balance of hardships standard is not whether the
injunction merely orders a defendant to comply with the law, but whether, assuming the
defendant will ultimately prevail, “the injury which will result from the . . . injunction
can be indemnified by a bond or . . . is relatively slight in comparison to the injury which
the person seeking the injunction will suffer if the injunction is not granted.”23
              Enjoining the listed actions — speaking about Pebble Mine, conducting
official Borough business, accepting Borough money for legal defense — imposes
serious harm on Alsworth and Anelon.24 Alsworth’s and Anelon’s injuries are not
“relatively slight in comparison”25 to Seybert’s alleged injury in the absence of the
injunction, nor can they be indemnified by a bond. Our statement in an earlier case rings
true here: “issuance of this injunction is a zero-sum event, where one party will
invariably see unmitigated harm to its interests.”26 The superior court should have




       22
              Id. at 1273.
       23
             United Cook Inlet Drift Ass’n, 815 P.2d at 378-79 (citing A.J. Indus., 470
P.2d at 540; Alaska Pub. Utils. Comm’n, 534 P.2d at 554).
       24
              We consider the injunction’s impact on Anelon as it would have applied at
the time the superior court issued its order, although the injunction may no longer have
any practical impact on Anelon due to her reelection defeat. We do not need to decide
the relevance of the injunction’s current impact on Anelon because we vacate the
injunction in full.
       25
              United Cook Inlet Drift Ass’n, 815 P.2d at 379.
       26
              State, Div. of Elections v. Metcalfe, 110 P.3d 976, 979 (Alaska 2005).

                                           -15-                                       6900

applied the probable success on the merits test, not the balance of hardships test.27
Because the superior court applied the wrong standard, we vacate the preliminary
injunction in full.28
       B.	    Paragraph Six Of The Preliminary Injunction Is A Prior Restraint On
              Speech In Violation Of Article I, Section 5 Of The Alaska Constitution.
              Even though we vacate the injunction in full, we explain our earlier order
vacating the portion of the preliminary injunction barring certain official action and
speech by additionally holding that the injunction’s restriction on Alsworth’s and
Anelon’s speech on Pebble Mine is an impermissible prior restraint on speech.
Paragraph Six of the preliminary injunction prohibits Alsworth and Anelon from
“speak[ing] in favor of (or against) or endors[ing] the Pebble Mine Project or any entities
with an interest in the success of the Pebble Mine Project or tak[ing] any official action
against those who oppose the Pebble Mine Project and/or related entities.” Alsworth and
Anelon argue these prohibitions violate their rights to freedom of speech under article I,
section 5 of the Alaska Constitution. Seybert counters that: (1) elected officials have no
protected right to expression in their official capacities; (2) Alsworth’s and Anelon’s
speech about Pebble Mine does not qualify as protected speech; (3) the injunction is a
valid restriction on speech because it is merely enforcing laws that pass intermediate
scrutiny; and (4) Alsworth waived his speech rights by participating in the enactment of
Borough laws restricting the speech at issue.



       27	
              See id.
       28
              We do not consider whether the superior court could have granted this
injunction under the probable success on the merits standard. See State v. Kluti Kaah
Native Vill. of Copper Ctr., 831 P.2d 1270, 1275 (Alaska 1992) (concluding vacatur is
appropriate remedy when superior court applies incorrect preliminary injunction
standard).

                                           -16-	                                     6900

              1.	    Paragraph Six imposes an impermissible prior restraint on
                     speech.
              The First Amendment broadly protects the “freedom of expression upon
public questions.”29 “[T]he Alaska Constitution protects free speech at least as broad[ly]
as the U.S. Constitution and in a more explicit and direct manner.”30
              Preliminary injunctions against speech are prior restraints,31 and “[a]ny
system of prior restraints of expression . . . bear[s] a heavy presumption against its
constitutional validity.”32 This is true even when the speech is alleged to violate an
otherwise constitutional law.33 Preliminary injunctions are almost always held to be
unconstitutional burdens on speech because they involve restraints on speech before the




      29	
              N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).
       30
              Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 198 (Alaska
2007) (alteration in original) (footnotes omitted) (quoting Vogler v. Miller, 651 P.2d 1,
3 (Alaska 1982); Messerli v. State, 626 P.2d 81, 83 (Alaska 1980)) (internal quotation
marks omitted).
      31
              See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 66-68 (1989);
Vance v. Universal Amusement Co., 445 U.S. 308, 316 (1980) (per curiam); Org. for a
Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971); Auburn Police Union v. Carpenter,
8 F.3d 886, 903 (1st Cir. 1993).
      32
              Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963); see also Pittsburgh
Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 390 (1973) (“The
special vice of a prior restraint is that communication will be suppressed, either directly
or by inducing excessive caution in the speaker, before an adequate determination that
it is unprotected by the First Amendment.”); Kritz, 170 P.3d at 205 (“Both the federal
and Alaska Constitutions look with disfavor on broad-based prior restraint rules . . . .”).
      33
             Fort Wayne Books, 489 U.S. at 66 (“[O]ur cases firmly hold that mere
probable cause to believe a legal violation has transpired is not adequate to remove books
or films from circulation [via preliminary judgment].”).

                                           -17-	                                     6900

speech has been fully adjudged to not be constitutionally protected.34 A preliminary
injunction barring speech may be permissible only if the trial court has fully adjudicated
and determined that the affected speech is not constitutionally protected.35
              Nothing in the record indicates that the superior court evaluated, much less
conclusively determined, whether Alsworth’s or Anelon’s speech concerning Pebble
Mine is unprotected under the Alaska Constitution. Paragraph Six thus imposes an
unconstitutional prior restraint on Alsworth’s and Anelon’s speech in violation of their
rights under article I, section 5 of the Alaska Constitution and must be vacated.36
              2.	    Alsworth’s and Anelon’s official speech is not unprotected
                     simply because they are elected officials.
              Seybert argues Alsworth’s and Anelon’s speech about Pebble Mine is not
protected because “[t]he protected speech rights of elected public officials and public
employees under the First Amendment and the Alaska Constitution are limited to speech


       34
              See, e.g., id. at 66-68; Vance, 445 U.S. at 316 (expressing concern that a
defendant “would be required to obey such an order pending review of its merits and
would be subject to contempt proceedings even if the [speech] is ultimately found to be
[protected]”). See generally, Mark A. Lemley & Eugene Volokh, Freedom of Speech
and Injunctions in Intellectual Property Cases, 48 D UKE L. J. 147, 169-180, 199-210
(1998). Permanent injunctions, on the other hand, may be valid restrictions on speech
because “the order will not have gone into effect before [the court’s] final determination
that the actions of [the defendant are] unprotected.” Pittsburgh Press Co., 413 U.S. at
390.
       35
                San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d
1230, 1239 (9th Cir. 1997). But see id. at 1240 (Kozinski, J., dissenting) (noting the case
“is the first ever (so far as I am aware) to uphold a preliminary injunction against speech
covered by Sullivan”).
      36
             The U.S. Supreme Court has suggested that a preliminary injunction against
speech might be permissible if special procedural safeguards are in place to ensure that
no protected speech is enjoined, but the injunction in this case contains no safeguards
whatsoever. Vance, 445 U.S. at 317.

                                           -18-	                                      6900

on matters of legitimate public concern”; and “any speech by Alsworth in his official
capacity regarding the Pebble Project is speech on a topic of personal interest,” not
public concern. Seybert’s argument is based on a line of cases holding public employees
do not enjoy broad First Amendment protection against employer discipline when they
speak on matters of private concern during the performance of their official duties.37
Seybert urges this court to extend the rule to elected officials’ speech. While a few trial
courts have extended the principle to limit elected officials’ speech rights,38 neither the
U.S. Supreme Court nor this court has done so, and other courts have expressly declined
the invitation.39 Limiting elected officials’ speech protections runs counter to the
jurisprudence of the U.S. Supreme Court and this court. The U.S. Supreme Court held
in Bond v. Floyd that legislators’ First Amendment rights are as broad as those of private




      37
               See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 421 (2006); Connick v. Myers,
461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will
Cnty., Ill., 391 U.S. 563, 568 (1968); Wickwire v. State, 725 P.2d 695, 700-03 (Alaska
1986); State v. Haley, 687 P.2d 305, 311-14 (Alaska 1984).
      38
             See, e.g., Hartman v. Register, No. 1:06-CV-33, 2007 WL 915193, at *6
(S.D. Ohio Mar. 26, 2007); Hogan v. Twp. of Haddon, No. 04-2036 (JBS), 2006 WL
3490353, at *6 (D.N.J. Dec. 1, 2006).
       39
              See Siefert v. Alexander, 608 F.3d 974, 991 (7th Cir. 2010) (Rovner, J.,
dissenting in part) (“Neither this court nor the Supreme Court, however, has ever held
that these decisions limiting the speech of public employees can be applied to elected
officials’ speech, including the speech of elected judges.”); Alaskans for a Common
Language, Inc. v. Kritz, 170 P.3d 183, 202-04 (Alaska 2007) (applying Pickering and
Connick to public employee speech, but not to elected official speech); see also Rangra
v. Brown, 566 F.3d 515, 522 (5th Cir. 2009) (“The district court’s premise that the First
Amendment’s protection of elected officials’ speech is limited just as it is for the speech
of public employees, however, is incorrect.”), vacated as moot, 584 F.3d 206 (5th Cir.
2009) (en banc).

                                           -19-                                      6900

citizens.40 This court held similarly in Thoma v. Hickel, concluding that the governor
enjoys the same speech rights under the U.S. and Alaska constitutions as do his critics
in the citizenry.41 Alsworth and Anelon enjoy no less speech protection as elected
officials than do private citizens under article I, section 5 of the Alaska Constitution.42
Because Alsworth’s and Anelon’s positions as elected officials do not render their speech
regarding Pebble Mine unprotected, the preliminary injunction amounts to a prior
restraint on speech not yet adjudged to be unprotected.43
V.     CONCLUSION
              Based on the foregoing,44 we REVERSE the superior court’s preliminary
injunction.




       40
              385 U.S. 116, 136-37 (1966).
      41
              947 P.2d 816, 821, 824 (Alaska 1997).
       42
              Seybert offers no legal authority establishing that voting for speech-
restricting laws waives one’s speech rights; accordingly, his argument that Alsworth
waived his speech right by helping to enact the Borough’s conflict of interest laws fails.
       43
             We also note that enjoining the Borough Mayor from speaking in an official
capacity on a subject the Borough has officially endorsed — Pebble Mine — seems to
lack any basis whatsoever.
       44
              Because we vacate the injunction based on the incorrect application of the
preliminary injunction standard and on free speech grounds, we do not address Alsworth
and Anelon’s additional arguments that the injunction violates their legislative immunity
and that the superior court erred by not joining the Borough as an indispensable party.

                                           -20-                                      6900
