The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One more interesting item from last week's decision by the U.S. Court of Appeals for the 7th Circuit in McCarthy v. Fuller—potentially very helpful to First Amendment litigants. Plaintiffs had gotten an injunction against defendants, on the grounds that the defendants had libeled the plaintiffs. The injunction was too broad, because it covered even statements that had not been found libelous. Here's how the court dealt with a procedural objection to the defendants' challenge to the injunction:
[Defendants] missed the deadline for responding to [the] motion for a permanent injunction … and ordinarily such a miss would have justified the judge's rejecting any objection to the injunction as untimely. But the injunction in this case had the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers. As this same district judge noted in a previous case, "while Local Rule 7.1 does, as the Defendants note, provide that the '[f]ailure to file a response or reply within the time prescribed may subject the motion to summary ruling,' the Court will not summarily grant a motion where, as here, it is apparent from the face of the motion in question that the movant is not entitled to the relief sought." … [A] "motion for summary judgment cannot be granted simply because there is no opposition[."] The judge was obligated to consider the public interest despite the waiver of the parties….
An injunction against speech harms not just the speakers but also the listeners (in this case the viewers and readers). "[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("the Constitution protects the right to receive information and ideas"). The injunction in this case is so broad and vague that it threatens to silence [defendants] completely…. [The judge] accepted the plaintiffs' formulation of the injunction without considering the defendants' response, because it was untimely, even though the preamble to the injunction was a patent violation of the First Amendment.
And this acceptance, the 7th Circuit concluded, was unconstitutional.