Seventh Circuit strikes down overbroad injunction against libel

|The Volokh Conspiracy |

Last Friday, the Seventh Circuit handed down an interesting opinion about libel injunctions in McCarthy v. Fuller. It's not a novel ruling—indeed, it fits very well with the precedents—but it may still be helpful to future litigants and courts.

Plaintiffs Kevin McCarthy and Albert Langsenkamp sued defendants Patricia Ann Fuller and Paul Hartman for libel, and, among other things, sought and got an injunction. Whether a court can issue such an injunction against statements specifically found at trial to be libelous is an interesting question, which the Seventh Circuit panel split on; for more on that, see this post. But the three judges all agreed that this injunction was too broad:

The focus of the injunction was the defamation claims, and its terms were drawn mainly from the following jury instruction:

The Plaintiffs claim that the following statements were made by the Defendants and were defamatory:

1. McCarthy, an attorney in good standing, suggested that Jim Whitta's name be forged on a quit claim deed.

2. The Plaintiffs bribed various members of the Clergy.

3. McCarthy physically threatened Fuller.

4. The plaintiffs stole the Latrobe Statue, the Crucifix, the Plaque, and the Medallions.

5. Langsenkamp stole the websites ourladyofamerica.com and ourladyofamerica.org.

6. The Plaintiffs stole $750,000 in proceeds from Fuller's Key Bank Stock.

7. Langsenkamp was involved in a car chase in which he chased Fuller around Fostoria.

8. The Plaintiffs used the name "Ron Norton" in an inflammatory e-mail exchange that was first published by Hartman on his website, ourladyofamerica.blospot.com.

9. McCarthy, without the knowledge or consent of Fuller, caused a will to be drafted for Fuller in which she left the Devotion to McCarthy.

But the jury was not asked which of these statements had been made by the defendants and, of those statements, which were defamatory. All it was asked to find and all it did find was that the defendants had defamed the plaintiffs and should be ordered to pay damages. The district judge awarded damages, as we have described, and a permanent injunction.

The permanent injunction states:

It is hereby ordered, adjudged and decreed that Defendants Fuller and Hartman … are hereby permanently enjoined from publishing the following statements, as well as any similar statements that contain the same sorts of allegations or inferences, in any manner or forum:

Defendants' statements that[:]

McCarthy suggested that Jim Whitta's name be forged on a quit claim deed;

McCarthy suggested that Jim Whitta's name be forged on a quit claim deed;

Plaintiffs bribed various members of the Clergy (including Catholic Priests, Bishops, Archbishops, Cardinals and Popes);

McCarthy physically threatened Fuller or otherwise committed any wrongful act against Fuller;

Plaintiffs are con-men, crooks, forgers, thieves, racketeers, or otherwise stole or converted property from Fuller or engaged in any conspiracy against Fuller with any Catholic clergy, lawyer (canon or civil) or investigator, or any Catholic lay person promoting the devotion;

Plaintiffs stole any statue (including the Latrobe statue), crucifix, plaque, medallions, pins, gold coinage, website (including the ourladyofamerica.com and ourladyofamerica.org web-sites) and/or proceeds from Fuller's Key Bank Stock;

Langsenkamp was involved in a car chase in which he chased Fuller around Fostoria;

Plaintiffs used the name "Ron Norton" in an inflammatory email exchange that was first published by Hartman at his website, ourladyofamerica.blogspot.com; and

McCarthy, without the knowledge or consent of Fuller, caused a will to be drafted for Fuller in which she left the Devotion to McCarthy.

It is further ordered, adjudged and decreed that Defendant Hartman is hereby ordered to take down the website operated by Hartman at ourladyofamerica.blogspot.com….

… [But] since the jury didn't indicate specifically which accusations in the jury instruction it found to be defamatory and to have been made by the defendants, the judge had no basis in the jury's verdict for issuing an injunction that tracked the instruction. Nor had he, without making his own factual determinations, authority to enjoin defamatory statements that the jury had not been asked to consider in deciding on its verdict.

For example, the judge enjoined Fuller and Hartman from stating that "McCarthy physically threatened Fuller," a defamatory statement alleged in one of the jury instructions but not mentioned in the jury's verdict. Also on his own the judge enjoined Fuller and Hartman from saying that the plaintiffs had "committed any wrongful act against Fuller," a proposition that the jury had not even been asked to consider, and from calling the plaintiffs "con-men, crooks, forgers, thieves, racketeers, or [saying that they] otherwise stole or converted property from Fuller or engaged in any conspiracy against Fuller with any Catholic clergy, lawyer (canon or civil) or investigator, or any Catholic lay person promoting the devotion." Those charges, too, had not appeared in the instruction.

The injunction's preamble, moreover, greatly expanded the scope of the injunction by prohibiting "any similar statements [that is, similar to the injunction's specific prohibitions] that contain the same sorts of allegations or inferences, in any manner or forum," as those listed in the body of the injunction.

That expansion was improper. An injunction must be specific about the acts that it prohibits. How could such vague terms as "similar" and "same sorts" provide guidance to the scope of the injunction? The injunction also ordered Hartman to take down his website, without the judge's having made a finding that everything published on the website defamed McCarthy or Langsenkamp (or both)….

[T]his is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge's own evaluation of the evidence.

We have no jury findings as to which statements were defamatory, and the plaintiffs didn't even ask the judge to address that absence, so he didn't. As illustrative of the injunction's resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech….

The judge could have based the injunction on his own assessment of the evidence, since the issuance of an injunction is the responsibility
of the trial judge rather than of the jury. But he didn't do that ….

Sounds clearly correct to me.

UPDATE: I originally didn't include the last paragraph of the block quote ("The judge could have …"), but I added it in response to a reader comment. (For more on the dispute whether judges should be able to issue even narrow injunctions against libel, whether based on jury findings or their own findings, see this post; Judge Posner's majority opinion and Judge Sykes' concurrence disagree on this.)