Waiting Sixteen Months Was Not “Reasonable Diligence” to Seek Preliminary Injunction in Free Speech Case, Holds Eighth Circuit

In Kohls v. Ellison, No. 25-1300 (8th Cir. Feb. 9, 2026), the Eighth Circuit affirms denial of a preliminary injunction in a case where the plaintiffs waited “more than sixteen months after the legislature enacted the challenged provisions” to seek relief, finding that lack of urgency underscored a lack of irreparable harm.

Plaintiffs sued officials in Minnesota, under the First Amendment, “to enjoin them from enforcing a Minnesota statute that regulates the use of ‘deep fake’ technology to influence elections. A ‘deep fake’ is defined as material ‘that is so realistic that a reasonable person would believe it depicts speech or conduct of an individual who did not in fact engage in such speech or conduct.’ Minn. Stat. § 609.771, subd. 1(c)(1). The district court determined that only [one plaintiff] had standing to challenge the statute, and then denied a motion for a preliminary injunction on the ground that she had unreasonably delayed in seeking relief.”

The Eighth Circuit affirms. After addressing the standing issue, the panel reviews the district court’s finding that plaintiff Franson failed to establish irreparable harm, one of the equitable factors weighed in entering an injunction under Fed. R. Civ. P. 65(a).

“A plaintiff’s delay may justify denial of preliminary injunctive relief where it is not adequately explained, . . . and Franson has not provided a sufficient explanation for her sixteen-month delay.”

“On appeal, Franson argues that she really did not delay for sixteen months because the legislature amended the 2023 statute in July 2024. The 2024 amendments, however, altered only the timing and penalty provisions of the statute. They did not change the statute’s basic prohibition on dissemination of deep fake videos, the enforcement of which Franson seeks to enjoin. Franson’s proposed conduct was arguably proscribed and subject to criminal penalties ever since May 2023.”

Delay is a factor even when free speech rights are involved. The Supreme Court “has said that a plaintiff must generally show ‘reasonable diligence’ in seeking a preliminary injunction, even where First Amendment rights are allegedly at stake.”

The panel also notes the oddity that the appeal itself prolonged adjudication of the case.

“The district court entered its order on preliminary relief in January 2025, and the case likely could have proceeded toward a final resolution on the merits in the year that has elapsed since. But [plaintiffs] appealed the order denying preliminary relief, and then stipulated that the case should be stayed in the district court pending disposition of this appeal. At oral argument, counsel explained that the plaintiffs sought ‘guidance’ from the court of appeals on the merits of their constitutional claims. This court, however, does not sit to dispense guidance on matters that are unnecessary to a decision.”

“We conclude here only that the district court did not abuse its discretion in denying extraordinary preliminary relief in light of the delay in bringing the request.”