The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court has held that false, defamatory statements are generally constitutionally unprotected against civil damages liability, and even against prosecutions for criminal libel. (Sometimes the plaintiff or the prosecutor may have to show that the defendant knew the statements were false or likely false, though sometimes a civil plaintiff may just need to show the defendant should have known this, and sometimes there might even be strict liability; but important as these "mens rea" doctrines are, I will set them aside here.)
But what about injunctions? From the mid-1800s to the late 1900s, the conventional wisdom was that such injunctions are unconstitutional "prior restraints," and the only remedies against defamation were civil damages or criminal punishment. But since the late 1900s, several state and federal appellate courts (state courts in California, Georgia, Kentucky, Minnesota, Nebraska, Ohio, and Tennessee, and the federal Sixth Circuit) have held that such injunctions are permissible, at least if entered after a trial on the merits in which particular statements were found to be defamatory. The Seventh Circuit also opined that injunctions might be permissible, but didn't squarely hold this.
On the other hand, the Pennsylvania Supreme Court has held that such injunctions violate the Pennsylvania Constitution's freedom of expression guarantee. And the Texas Supreme Court has held that they violate the First Amendment (as well as the state constitution) when they forbid repetition of particular statements, but are constitutional when they mandate the removal of past statements posted online.
The First Circuit has today weighed in (Sindi v. El-Moslimany) largely on the anti-injunction side, at least when it comes to many bans on repeating particular statements. The problem, the court concludes, is that such injunctions don't take into account the possibility that a statement that is libelous in one context would not be libelous in another:
In this case, Dr. Sindi argues that the challenged injunction comports with the First Amendment because the six statements were previously employed to defame her and, thus, no longer constitute protected speech. This argument has some superficial appeal: an injunction against speech sometimes may pass constitutional testing if it follows an adjudication that the expression is unprotected, and the injunction itself is narrowly tailored to avoid censoring protected speech. For instance, the Supreme Court has approved a permanent injunction against the distribution of specific booklets "found after due trial to be obscene," where the injunction did not extend to "matters not already published and not yet found to be offensive." Kingsley Books, Inc. v. Brown (1957). The analogy that Dr. Sindi draws to Kingsley Books is tempting because (in the idiom of the First Amendment) obscenity — like defamation — is a category of unprotected speech.
In the end, though, Dr. Sindi's proffered analogy glosses over significant distinctions between obscenity and defamation that make injunctions of obscene communications less problematic in constitutional terms. The obscenity doctrine proscribes specific expressive works (such as books or movies) that appeal to prurient interests, depict sexual behaviors in patently offensive ways, and lack "serious literary, artistic, political, or scientific value." Works adjudged obscene — such as the booklets in Kingsley Books — are immutable forms of expression. Hence, the permanent injunction there could be carefully crafted to ensure that it applied only to the specific publications found obscene without exposing the bookseller to contempt sanctions for distributing other publications that might be protected under the First Amendment.
An injunction that prevents in perpetuity the utterance of particular words and phrases after a defamation trial is quite a different matter. By its very nature, defamation is an inherently contextual tort. Words that were false and spoken with actual malice [i.e., knowledge of falsehood or likely falsehood] on one occasion might be true on a different occasion or might be spoken without actual malice. What is more, language that may subject a person to scorn, hatred, ridicule, or contempt in one setting may have a materially different effect in some other setting.
The cardinal vice of the injunction entered by the district court is its failure to make any allowance for contextual variation. Refined to bare essence, it enjoins [defendants] from repeating certain words, regardless of their purpose in employing them. Consequently, the injunction "sweeps … more broadly than necessary" by prohibiting the appellants from engaging in speech about a public figure "before an adequate determination that it is unprotected by the First Amendment."
For instance, the injunction precludes the appellants from restating that Dr. Sindi "is an academic and scientific fraud." Although the appellants have in the past used those words with actual malice (or so the district court supportably found), there are a number of future contexts in which their repetition of this statement might be protected speech. We offer three examples:
* If, say, [one of the defendants] learns in the future of fraud actually perpetrated by Dr. Sindi and accurately reports it, the speaker would face contempt sanctions under the injunction even though the right to disseminate truthful information about public figures lies at the core of the First Amendment.
* If, say, [one of the defendants] were interviewed by a reporter and asked what speech the challenged injunction prevented them from repeating, a reply to the effect that, "I am not allowed to state that Dr. Sindi is an academic and scientific fraud" would subject the speaker to contempt sanctions notwithstanding the truth of the reply.
* Perhaps most remarkably, the appellants would face contempt sanctions for disseminating a letter describing their accusations and apologizing for them.
The list of contextual permutations is virtually endless. The situations that we have described are but a few of the possible examples that show, beyond hope of peradventure, that the challenged injunction is neither narrowly tailored nor precisely fitted to the circumstances of the case.
As framed, the injunction is so wide-ranging and devoid of safeguards that it plainly contravenes the First Amendment's limitation of liability for speech about public figures to false assertions of fact made with actual malice. We conclude, therefore, that the injunction punishes future conduct that may be constitutionally protected, and thus fails the First Amendment requirement that it be "tailored as precisely as possible to the exact needs of the case."
In an effort to blunt the force of this reasoning, our dissenting brother [Judge Barron] defends the injunction on the ground that, should the appellants choose to republish any of the six statements for a non-defamatory purpose, they may move to modify the injunction in light of changed circumstances. To support this defense, he relies on the California Supreme Court's dictum surmising that a defamation defendant's ability to move to modify an injunction alleviates any concern that the injunction may penalize or chill constitutionally protected speech. But this is little more than a hopeful improvisation: neither our dissenting brother nor the California Supreme Court identifies any other First Amendment precedent supporting this extraordinary proposition.
In light of a court's power to levy contempt sanctions (up to and including imprisonment) for disobedience under the collateral bar rule, "the right to free speech should not lightly be placed within the control of a single man or woman," A decree that requires a judicial permission slip to engage in truthful speech is the epitome of censorship. To make a bad situation worse, the appellants would bear the burden of pointing to changed circumstances in any proceeding to modify the injunction. Such a circumstance would be repugnant to the First Amendment, which requires a public-figure plaintiff, not the defendant, to prove actual malice and falsity….
When all is said and done, we need not answer the vexing question of whether a federal court may ever permanently enjoin republication of ad hoc oral or written statements on the ground that those statements will be defamatory if made anew. Similarly, we take no view of the legality of an injunction ordering "the removal or deletion of speech that has been adjudicated defamatory," such as a decree requiring the erasure of a statement from a website after an adjudication that the statement was "unprotected in the context in which it was made." Kinney v. Barnes (Tex. 2014) (upholding such an injunction and explicating the "legally cogent division between mandatory injunctions calling for the removal of speech that has been adjudicated defamatory and prohibitive injunctions disallowing its repetition").
The dissent, as you might gather from the excerpt above, is more open to such injunctions, but ultimately doesn't come to a clear conclusion on whether they should be permissible; rather, the dissenting judge argues that the court should have declined to confront the issue, because the defendants hadn't properly raised the argument.
Note that the majority doesn't resolve whether a court may issue an injunction that bars defendants from "falsely, defamatorily, and without privilege stating that plaintiff is an academic and scientific fraud." That injunction wouldn't suffer from the context-insensitivity to which the majority objected: If the defendants, for instance, acquire evidence that plaintiff has indeed begun to engage in scientific fraud, then repeating the statement wouldn't be speaking "falsely," and thus wouldn't violate the injunction. Likewise, if the defendants quote the statements while apologizing for them, then that statement wouldn't be defamatory, and thus wouldn't violate the injunction. By the injunction's terms, falsity, defamatory character, and absence of privilege would be elements of the injunction, and would have to be proved before the defendants could be punished for violating the injunction.
One could still criticize such an injunction on other grounds, but not on the context-insensitivity grounds that the court advances. And that might help explain why the majority said that it wasn't answering "the vexing question of whether a federal court may ever permanently enjoin republication of ad hoc oral or written statements on the ground that those statements will be defamatory if made anew."
Disclosure: I filed an amicus brief on my own behalf in the case; you can read my First Amendment argument (which is consistent, in relevant part, with the majority's position, and which the dissent in relevant part expressly disagreed with) and my state-law-based argument (which the majority expressly declined to follow).