The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In the past couple of months, I've blogged several times about Brummer v. Wey, a remarkable New York decision in which an appellate court essentially ordered defendants to remove certain images from an online tabloid (TheBlot) that accused a recently withdrawn presidential nominee for the Commodity Futures Trading Commission, Prof. Christopher Brummer, of participating in a figurative "lynching" of two stockbrokers. (Brummer had been one of the arbitrators in the industry self-regulatory proceeding that essentially banned them from participating in the financial industry.) This pretrial order, I think, is a blatant violation of the First Amendment.
I'm delighted to say that yesterday, our pro bono local counsel Daniel Schmutter (Hartman & Winnicki)—many thanks to him!—submitted an amicus brief in the case on behalf of Reporters Committee for Freedom of the Press and leading First Amendment scholars Martin Redish (Northwestern) and Steve Shiffrin (Cornell). The brief supports the defendants' motion for leave to reargue the case before the appellate court, or to appeal to the state high court, and is addressed to the appellate court itself; that's the way appellate procedure works in New York. Here is the text, though you can also read the PDF:
Christopher Brummer was, until recently, a Presidential nominee for the Commodities and Futures Trade Commission. Even before that, he was an arbitrator within a government-authorized self-regulatory system that has the power to effectively ban people from a major industry.
Yet the August 1, 2017 decision of this Court ordered a media outlet to remove images that sharply criticized Brummer, and not to repost any similar images. The order was not limited to speech found at trial to have been libelous, or found to fall within the true threats or incitement exceptions to the First Amendment. Instead, it covered, among other things, "any … images depicting … lynching in association with plaintiff"—even though the images in this case do not threaten the lynching of Brummer, but rather figuratively accuse Brummer of lynching.
Amici are unaware of any appellate decision in the last 40 years that has imposed this sort of prior restraint on constitutionally protected speech. Instead, the precedents make clear that such injunctions violate the First Amendment; and this applies whether or not the outlet appears to be unreliable and sensationalistic. This Court should either rehear the matter and vacate the injunction entirely or allow it to be appealed to the Court of Appeals.
I. A court may not enjoin speech that has not been found to fit within a First Amendment exception (such as the exception for defamation, or perhaps true threats or incitement)
Courts disagree about whether injunctions against future libels are constitutionally permissible. Compare, e.g., Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339 (Cal. 2011) (holding that such injunctions can be constitutional); Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky. 2010) (same), with Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978) (holding that such injunctions are unconstitutional), and Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) (holding that such injunctions are unconstitutional, though injunctions ordering the removal of already posted libelous statements can be constitutional). In Tory v. Cochran, 544 U.S. 734 (2005), the Supreme Court was set to consider the issue, but ended up not deciding it because the plaintiff died while the case was pending.
But even those cases that allow some such injunctions stress that the injunctions must be limited to speech that has been found to be constitutionally unprotected at trial. For instance, the California Supreme Court upheld such an injunction, but only to the extent that the injunction barred the defendant from repeating statements found defamatory at a previous trial. Balboa Island Vill. Inn, 156 P.3d at 344-45. While courts can "issu[e] a posttrial injunction after a statement that already has been uttered has been found to constitute defamation," the court held, "preventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published" is an unconstitutional prior restraint on the defendant's speech. Id. at 344.
Likewise, the Kentucky Supreme Court held that "defamatory speech may be enjoined only after the trial court's final determination by a preponderance of the evidence that the speech at issue is, in fact, false," and that any injunction must "be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false." Hill v. Petrotech Res. Corp., 325 S.W.3d at 309.
The Seventh Circuit has similarly held that, "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." McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015). And the Seventh Circuit applied this to strike down the injunction that it was considering:
The injunction that the district judge issued in this case was of that character [i.e., forbade statements not yet found to be defamatory], 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 ….
The same principle applies beyond defamation, to other First Amendment exceptions as well. See, e.g., Vance v. Universal Amusement Co., 445 U.S. 308, 311, 316 (1980) (preliminary injunctions against the showing of films "that have not been finally adjudicated to be obscene" are generally unconstitutional prior restraints); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (injunction of charitable solicitation would be permitted only "after a final adjudication on the merits that the speech is unprotected"). And this principle would equally apply to speech that allegedly fits within the "true threat" exception or the incitement exception.
II. The enjoined speech does not constitute a "true threat" of violence or incitement of violence
The injunction is thus procedurally flawed, because it was issued before any finding on the merits that the forbidden speech was unprotected. But the injunction is also substantively faulty: the enjoined speech cannot be found unprotected under well-established First Amendment standards.
The injunction, as modified by this Court, orders defendants to
remove all photographs or other images and statements from websites under defendants' control which depict or encourage lynching; encourage the incitement of violence; or that feature statements regarding plaintiff that, in conjunction with the threatening language and imagery with which these statements are associated, continue to incite violence against plaintiff.
Aug. 1, 2017 Order, at 1-2. It also forbids defendants "from posting on any traditional or online media site any photographs or other images depicting or encouraging lynching in association with plaintiff." Id. at 2.
But the lynching images did not say that Brummer should be lynched or will be lynched; rather, they accused Brummer of figuratively lynching the two stockbrokers who were banned by a FINRA NAC decision that Brummer signed. They thus cannot fit within the narrow First Amendment exception for "true threats"—statements through which the "speaker means to communicate a serious expression of an intent to commit an act of unlawful violence." Virginia v. Black, 538 U.S. 343, 359 (2003). And certainly the injunction by its terms goes far beyond such true threats.
(One of the comments posted at the Blot might conceivably be found to be a true threat. But there has been no trial finding that the comment was posted by the defendant, and in any event the injunction covers the lynching images, not the comment.)
Nor can speech be restricted simply on the theory that it "encourage[s] lynching" or "encourage[s] the incitement of violence." Aug. 1, 2017 Order, at 2. Under Brandenburg v. Ohio, 395 U.S. 444 (1969), even "advocacy of the use of force or of law violation" cannot be forbidden "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Id. at 447. Yet the injunction is not limited to speech "directed to inciting" crime or "likely to incite" crime, much less "imminent" crime. See Hess v. Indiana, 414 U.S. 105, 108 (1973) (making clear that the imminence prong of the Brandenburg test precludes punishment for "advocacy of illegal action at some indefinite future time"). Amici doubt that defendants' speech is advocacy of illegal action at all; but it is certainly not advocacy of imminent illegal action.
The Blot is sensationalistic, hyperbolic, and over-the-top. The posts may well prove to be defamatory at trial. They are certainly racially charged. No one would want to be the subject of such material. But none of that can justify the injunction involved here, just as the sensationalistic, hyperbolic, over-the-top, likely defamatory, and overtly anti-Semitic content of the newspaper in Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), could not justify the injunction in that case.
To be sure, the Near injunction was broader than the one in this case, since it closed the entire newspaper. But First Amendment law bars injunctions against particular statements and images as well as against entire publications, at least unless those statements and images are specifically found to fall within a specific First Amendment exception at trial—something that has not happened here.
III. The injunction appears unprecedented, at least in the last 40 years
Amici believe the injunction in this case would have been unconstitutional even if it covered an individual speaker, rather than an online tabloid, or even if it was limited to speech about an ordinary citizen rather than about a recent nominee to high federal office. But the facts of this case just show how clearly unconstitutional the injunction is. Amici are unaware of any appellate decision in recent decades that has allowed an injunction against words or images on facts such as this. Indeed, since the Pentagon Papers case (New York Times Co. v. United States, 403 U.S. 713 (1971)) and Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) (discussed in more detail in the brief amicus curiae of the Electronic Frontier Foundation), it has been clear that the U.S. Supreme Court roundly condemns such injunctions.
Today, this injunction just applies to the Blot, Brummer, and the use of images of lynching. But if it is upheld, then similar injunctions could easily be issued against many other publications that criticize many other people—including public officials, public figures, and professionals involved in matters of public concern—in many different ways. All it would take is some court concluding that the speech in some loose sense "encourage[s] the incitement of violence," or even just "depict[s]" violent conduct, with no showing that the usual First Amendment tests for incitement or true threats are satisfied. "It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings." W. Va. Bd. of Ed. v. Barnette, 319 U.S. 624, 641 (1943).
The injunction in this case suppresses speech that has not been (and cannot be) found to be constitutionally unprotected. It is therefore an unconstitutional prior restraint. This Court should rehear the matter and amend its Order of August 1, 2017 to vacate the injunction below in its entirety or, in the alternative, allow the Order to be appealed to the Court of Appeals.
The Electronic Frontier Foundation has filed an amicus brief as well. I hope the appellate court allows leave to appeal this to the New York high court and that the high court reverses the injunction.
UPDATE: Here's EFF's post about its brief.