Harassment

Can a Person Be Banned from Posting Anything About Someone Else, Because His Past Speech Supposedly Stems from a "Vendetta"?

Yes, said an Ohio Court of Appeals majority opinion, reasoning that the speaker's past speech "was not engaged in for a legitimate reason, but instead for an illegitimate reason born out of a vendetta seeking to cause mental distress to his mother and sister and to exact personal revenge." No, argue the EFF, Prof. Aaron Caplan, and I in a brief we've just filed with the Ohio Supreme Court.

|The Volokh Conspiracy |

Last month, the Ohio Court of Appeals upheld (over a partial dissent) an injunction that provided, in relevant part,

[1] Respondent shall refrain from posting about Petitioners [his mother and sister] on any social media service, website, discussion board, or similar outlet or service and shall remove all such postings from CountyCoverUp.com that relate to Petitioners.

[2] Respondent shall refrain from posting about the deaths of Petitioners' husbands in any manner that expresses, implies, or suggests that the Petitioners are culpable in those deaths.

But wait: Can it be constitutional to ban all speech by defendant about plaintiffs? And can it be constitutional to ban even specific allegedly defamatory statements, if the order is just a pretrial "order of protection," entered without any jury trial (or even full bench trial) at which the statements are found to be false and libelous? Yes, says the court, chiefly because the respondent's speech

was not engaged in for a legitimate reason, but instead for an illegitimate reason born out of a vendetta seeking to cause mental distress to his mother and sister and to exact personal revenge.

Now it seems to me that there is no First Amendment exception for speech that the judge views as being "born out of a vendetta," or even as "seeking to cause mental distress"; but even to the extent there are exceptions for, say, defamation, or true threats, or perhaps even speech on matters of private concern that's "extreme and outrageous" and intended to cause severe emotional distress, that can't justify an overbroad, categorical "shall refrain from posting about Petitioners" order. And just yesterday the Electronic Frontier Foundation, Prof. Aaron Caplan, and I filed a brief—with the invaluable help of pro bono local counsel Karin L. Coble, as well as my student Sara Williams—so arguing, and urging the Ohio Supreme Court to hear the case (Rasawehr v. Rasawehr). Here's the meat of our argument:

[* * *]

This Case Is of Great General Interest and Involves a Substantial Constitutional Question

[1.] The decision below upholds a strikingly overbroad injunction, which bans Mr. Rasawehr from posting anything online about petitioners. This is inconsistent with the First Amendment, with U.S. Supreme Court precedent, and with precedent from appellate courts in other states. And even to the extent that courts may enjoin repetition of speech that fits within some narrow First Amendment exceptions, those exceptions cannot justify barring all speech by the defendant about plaintiffs.

[2.] The decision below reasons that Mr. Rasawehr's speech is enjoinable because it stems from "an illegitimate reason born out of a vendetta seeking to cause mental distress." Yet there is no "vendetta speech" exception to the First Amendment, and no exception for speech that judges believe has an "illegitimate reason."

[3.] The decision below also upholds a narrower provision barring Rasawehr from accusing petitioners online of being culpable in their husbands' death. Such a provision could be constitutional following a finding on the merits that such specific statements are libelous, but it cannot be imposed before such a finding. That is what this Court concluded in O'Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975); and, again, appellate courts in other jurisdictions have reached the same result.

[4.] Mr. Rasawehr might appear to some to be obsessed and even perhaps delusional. But the decision below is not limited to speech by people who come across this way. Rather, it sets a precedent for enjoining speech by anyone who sharply and repeatedly criticizes others—whether government officials, businesspeople, or, as here, family members.

At least five Ohio courts have already issued similar speech-restrictive injunctions in other cases, including cases involving political and consumer disputes. Now that there is a published decision endorsing such injunctions, such broad speech restrictions will likely become even more common.

And such restrictions will often arise where the defendant cannot fight the case all the way up to this Court. This case, in which the defendant was willing and able to fight the case all the way up, therefore offers an excellent opportunity for this Court to instruct lower courts about First Amendment restraints on anti-speech injunctions.

Argument in Support of Propositions of Law

Proposition of Law I: Injunctions barring all online speech about a person violate the First Amendment.

Speech about a person cannot be enjoined absent a finding that the speech falls within a First Amendment exception. Even if narrow restrictions on speech that is intended to cause severe emotional distress are constitutional, they cannot apply to all speech by the defendant about plaintiffs.

Yet the Order covers all "posting about Petitioners on any social media service, website, discussion board, or similar outlet or service." Id. at ¶ 20. The dissent below notes the injunction's overbreadth: "[P]otential harmless posts . . . (i.e. birthday greetings, holiday invitations, condolences, days of special meaning, family events, etc. etc.) are impacted." Id. at ¶ 53 (Zimmerman, P.J., concurring in part and dissenting in part). And the requirement that Rasawehr "remove all such postings from CountyCoverUp.com that relate to Petitioners," id. at ¶ 21, also extends to all speech, as opposed to unprotected speech.

In O'Brien v. Univ. Comm. Tenants Union, Inc., this Court made clear that only specific restrictions on speech that track the narrow exceptions to the First Amendment may be upheld. "Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper." 42 Ohio St.2d 242, 244, 327 N.E.2d 753 (1975) (emphasis in original). Perhaps speech may also be enjoined if it fits within another one of the "narrow classes of speech [that] are unprotected by the First Amendment." Id. But the Order here unconstitutionally bans all online speech Rasawehr might make about his mother and his sister, regardless of whether the speech fits within one of those "narrow [unprotected] classes of speech."

U.S. Supreme Court precedent likewise forbids injunctions against all speech about a person. For instance, in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), activists who disapproved of a real estate agent's (apparently lawful) behavior repeatedly leafleted near where he lived and went to church, demanding that he change his practices. Id. "Two of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the 'no solicitation' agreement." Id. at 417. Yet the Court struck down an injunction against such leafleting:

No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy . . . is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.

Id. at 419-20.

To be sure, some unwanted speech to an unwilling recipient may be restricted—but, as Keefe indicates, this cannot justify restrictions on speech about an unwilling subject. The government may be able "to stop the flow of information into [an objecting person's] household," but it may not attempt to stop the flow of such information about a person "to the public." Id. at 420; see also Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking," 107 Nw.U.L.Rev. 731, 745-46 (2013).

Other states have similarly struck down such overbroad injunctions against speech about a person. Here are five examples:

[1.] In In re Marriage of Suggs, the Washington Supreme Court set aside a civil harassment restraining order that barred "knowingly and willfully making invalid and unsubstantiated allegations or complaints to third parties which are designed for the purpose of annoying, harassing, vexing, or otherwise harming [plaintiff] and for no lawful purpose." 152 Wash.2d 74, 78, 93 P.3d 161 (2004). The order, the court held, was an "unconstitutional prior restraint," in part because it "chill[ed] all of [defendant's] speech about [the beneficiary of the order], including that which would be constitutionally protected, because it is unclear what she can and cannot say." Id. at 84. In this case, the order is even more chilling, because it is clear to Mr. Rasawehr that he cannot say anything about plaintiffs, "including that [speech] which would be constitutionally protected," id.

[2.] In TM v. MZ, the Michigan Court of Appeals reversed an overbroad protective order obtained against a respondent who posted "highly inflammatory and negative comments" about petitioner and her family online, including allegations of involvement in a kidnapping. __ Mich.App. __, No. 329190, 2018 WL 7377288, *1 (Oct. 23, 2018) (precedential). The order, the court held, was an unconstitutional prior restraint. Id. at *7. And the respondent's words were constitutionally protected even if they "amounted to harassment or obnoxiousness." Id. at *6.

[3.] In Flood v. Wilk, the Appellate Court of Illinois struck down as unconstitutional an order prohibiting the respondent from "communicating in any form any writing naming or regarding [petitioner], his family, or any employee, staff or member of [the petitioner's congregation]." __ N.E.3d __, Ill.App. No. 172792, ¶ 1 (Feb. 7, 2019) (precedential). "It is all but impossible," the court held, "to imagine a factual record that would justify this blanket restriction on respondent's speech." Id. at ¶ 35.

[4.] In David v. Textor, the Florida Court of Appeal struck down an injunction barring "text messages, e[-]mails, . . . tweets[, or] . . . any images or other forms of communication directed at John Textor without a legitimate purpose." 189 So.3d 871, 874 (Fla.App.2016), This injunction, the court held, was a forbidden "prior restraint" because it prevented "not only communications to Textor, but also communications about Textor." Id. at 876 (emphasis in original).

[5.] In Evans v. Evans, the California Court of Appeal struck down a preliminary injunction prohibiting an ex-wife from posting "false and defamatory statements" and "confidential personal information" about her ex-husband online because the injunction was not limited to statements that had been found to be constitutionally unprotected. 162 Cal.App.4th 1157, 1161, 76 Cal.Rptr.3d 859 (2008).

The upshot of these cases is consistent and simple: Injunctions against speech about a person are unconstitutional if they go beyond constitutionally unprotected categories of speech (such as defamation or true threats).

Proposition of Law II: Speech cannot lose constitutional protection just because it is believed to have an "illegitimate reason."

The court below rested its decision on Rasawehr's speech being "for an illegitimate reason born out of a vendetta seeking to cause mental distress." Bey v. Rasawehr, 3rd Dist. Mercer Nos. 10-18-02, 10-18-03, 2019-Ohio-57, ¶ 20. But "under well-accepted First Amendment doctrine, a speaker's motivation is entirely irrelevant to the question of constitutional protection." FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (Roberts, C.J., joined by Alito, J.) (alteration and internal quotation marks omitted); id. at 492 (Scalia, J., concurring in part and in the judgment, joined by Kennedy and Thomas, JJ.) (taking the same view). Speech cannot be stripped of protection on the grounds that it lacks "good motives" or "justifiable ends." State v. Turner, 864 N.W.2d 204, 209 (Minn.Ct.App.2015). And "there is no categorical 'harassment exception' to the First Amendment,'" State v. Burkert, 231 N.J. 257, 281, 174 A.3d 987 (2017) (quoting Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir.2001) (Alito, J.)), nor a "vendetta" exception.

Indeed, even in cases where speech likely stemmed from the speaker's personal vendetta or some other "illegitimate reason," the U.S. Supreme Court has treated such speech as broadly constitutionally protected. For example, Hustler Magazine, Inc. v. Falwell upheld Hustler's right to criticize Jerry Falwell, even in a harsh, vulgar, and deeply emotionally distressing way. 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988). There, Hustler had published a parodic advertisement which "portrayed respondent as having engaged in a drunken incestuous rendezvous with his mother in an outhouse." Id. at 877. The Court never suggested that the speech lost its protection because it stemmed from a personal vendetta or was motivated by an "illegitimate reason." And in Near v. Minnesota, the Supreme Court made clear that a speaker's past libelous speech cannot justify broad restrictions on nonlibelous speech in the future, even when the injunction is limited to speech said without "good motives." 283 U.S. 697, 713, 51 S.Ct. 265, 75 L.Ed. 1357 (1931).

Likewise, in Tory v. Cochran, the Court considered a case challenging the constitutionality of an injunction barring a disgruntled litigant from picketing outside his former lawyer's office "holding up signs containing various insults and obscenities" (apparently as a means of pressuring the lawyer to pay the litigant money). 544 U.S. 734, 735, 125 S.Ct. 2108, 161 L.Ed.2d 1042 (2005). The Court ultimately vacated the injunction on narrow grounds: The lawyer had died while the case was pending, so "the grounds for the injunction [were] much diminished, if they have not disappeared altogether." Id. at 738. But the Court agreed to hear the case despite the defendant's likely bad intentions or his "vendetta" against the lawyer; and it never suggested that these factors stripped the speech of First Amendment protection.

Similarly, in Henry v. Collins, the petitioner had issued press releases calling his arrest "'a diabolical plot'" driven by the County Attorney and police chief. 380 U.S. 356, 85 S.Ct. 992, 13 L.Ed.2d 892 (1965), rev'g Henry v. Pearson, 253 Miss. 62, 158 So.2d 695 (1963) (which offers more factual details). But the Court agreed to hear the case despite that, and held that the petitioner's speech was protected by the New York Times v. Sullivan rule, with no suggestion that it was less protected on the grounds that it may have stemmed from a personal vendetta or an "illegitimate reason."

Proposition of Law III: Injunctions against making specific factual allegations are unconstitutional absent a finding on the merits that those allegations are false.

Though Ohio law allows injunctions against speech once particular statements have been found unprotected by the First Amendment, such injunctions can only be imposed after a trial on the merits:

Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper. The judicial determination that specific speech is defamatory must be made prior to any restraint.

O'Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). And "'[t]he presumption against prior restraints is heavier—and the degree of protection broader—than that against limits on expression imposed by criminal penalties.'" Id. at 246 (citation omitted). Therefore, the law may allow only a "'limited injunctive remedy'" against the "continued publication" of material "'found after due trial'" to be constitutionally unprotected. Id. (citation omitted). In the words of the Kentucky Supreme Court dealing with the same question,

[T]he modern rule [is] 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 only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.

Hill v. Petrotech Resources Corp., 325 S.W.3d 302, 309, 313 (Ky.2010) (reversing an injunction that was issued before a trial on the merits); see also Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141, 1156, 57 Cal.Rptr.3d 320, 156 P.3d 339 (2007) (concluding that an injunction against libel can be "issued only following a determination at trial that the enjoined statements are defamatory").

Many courts have in particular recognized that it is improper to enjoin libels through procedures that "deprive [the defendant] of the right to a jury trial concerning the truth of his or her allegedly defamatory publication." Sid Dillon Chevrolet v. Sullivan, 251 Neb. 722, 730, 559 N.W.2d 740 (1997); see also McFadden v. Detroit Bar Ass'n, 145 N.W.2d 285, 287, 4 Mich.App. 554 (1966) ("[T]he defendant in a defamation action has the right to a jury trial which would be precluded by granting of an injunction"). Court decisions upholding injunctions barring continued publication of libels have stressed that the injunction was issued only after a "jury determination of the libelous nature of specific statements." Kramer v. Thompson, 947 F.2d 666, 678 (3d Cir.1991); see also Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc., 352 N.W.2d 1, 11 (Minn.1984) (same). Yet here there was no jury trial justifying this injunction.

More broadly, order of protection proceedings offer "[n]one of the substantive and procedural limitations that have been carefully constructed around defamation law." Aaron Caplan, Free Speech and Civil Harassment Orders, 64 Hastings L.J. 781, 822 (2013). "A petitioner should not be able to evade the limits on defamation law (many of them constitutionally mandated) by redesignating the claim as civil harassment." Id. The right to be free from injunctions against speech until the speech is found to be false and defamatory at a full trial, before a jury, is one such important limit on defamation law.

Argument in Support of the Importance of This Case

This Court should especially consider this issue because other Ohio courts are making the same mistake as did the court below

This case especially merits this Court's attention because other Ohio courts have also issued these sorts of unconstitutional, overbroad orders.

[A.] In Kleem v. Hamrick, the court banned all online speech by Johanna Hamrick about Norma Kleem—a city commissioner and organizer of the July 4 parade—and Kleem's family, including her brother, mayor Cyril Kleem:

[Hamrick] is prohibited from posting any information/comments/?????threats/????or any other data on any internet site, regarding the petitioner and any member of her immediate or extended family; . . . she is prohibited from blogging/posting on any site [about] petitioner including but not limited to these blogs.

Kleem v. Hamrick, Cuyahoga C.P. No. CV 11 761954, at 3 (Aug. 15, 2011), rev'd, Journal Entry, id. (Aug., 22, 2011), both available at http://www.volokh.?com/?wp-content/uploads/2012/07/KleemvHamrickOrder.pdf; see Volokh, supra, 107 Nw.U.L.Rev. at 734-35. Ham­rick had posted various items critical of Kleem; one of these posts included comments about Kleem's control over the city's July 4 parade, and alluded to throwing tomatoes at her: "Please Sunday July 3rd, DO NOT FORGET YOUR TOMATOES!!! I truly would love to chuck one right at someone in THAT camp. It would be quite enjoyable. Happy Independence Day Berea." Volokh, supra, 107 Nw.U.L.Rev. at 734-35. Even if this post could somehow be seen as a threat of actual tomato-throwing, surely it could not justify a categorical ban on all online speech about the commissioner and the mayor. Yet the court imposed such a ban.

[B.] In W.6 Restaurant Group Ltd. v. Bengtson, two popular YouTube speakers created a video which criticized a restaurant. The restaurant owner was granted a strikingly overbroad order barring the speakers from "publishing on social media platforms any statements, videos, or images concerning [owners of an Ohio restaurant], their employees, their related entities, and their patrons." (emphasis added). W.6 Restaurant Group Ltd. v. Bengtson, Cuyahoga C.P. No. CV 17 889784, at 2 (Nov. 30, 2017), available at http://?volokh.com/?wp-content/?uploads/?2018/?03/???????W6vBengston.?pdf. The case was later removed to federal court, and settled.

[C.] In Aukerman v. Adams, the court ordered the defendant to "immediately cease and desist from making further comments of any nature referencing [plaintiff] Garner Ted Aukerman." Aukerman v. Adams, Knox C.P. No.14ST08-0272, at 2 (Sept. 5, 2014), available at http://?law.?ucla.edu/volokh/ac/rasawehr/AukermanOrder.pdf. The plaintiff at whose behest the order was issued had earlier been found guilty of forging a different court order, aimed at trying to get certain material about him removed from Google searches.[1] Unsurprisingly, if overbroad injunctions become available, they can be used by all sorts of litigants—some sympathetic, as the plaintiffs in the case before this Court might be, and some less so.

[D.] In A Plus Expediting & Logistics, Inc. v. Harris, a court issued a temporary restraining order requiring defendant to "[i]mmediately cease and desist from making any defamatory, reckless or false statement about plaintiff or any of plaintiff's officers, owners, employees agents or representatives." Montgomery C.P. No. 2011 CV 4409, at 1 (Sept. 28, 2011), available at http://law.?ucla.edu/volokh/ac/rasawehr/APlusOrder.pdf. This order was expressly not limited to false and defamatory statements, but included any statements that were false or defamatory. And this too was issued before any trial on the merits or any jury finding that particular statements were defamatory.

[E.] In U.S. Diamonds & Gold, Inc. v. Snyder, the court issued a temporary restraining order requiring a defendant "to secure the immediate removal of any post [she] has made on Facebook or any other social media site concerning Plaintiff." Montgomery C.P. No. 2015 CV 06344, at 1 (Dec. 10, 2015), available at http://law.ucla.edu/volokh/ac/rasawehr/USDiamondsOrder.pdf. This too was not limited to defamatory material, and was issued before any trial on the merits and without any jury finding.

These are just the orders that amici are aware of; doubtless there are many similar Court of Common Pleas orders that are just not easily findable. Indeed, the published opinion below, which validates such injunctions, will encourage courts to enter similar orders.

And most such orders will not reach this Court, because the speakers will be unable or unwilling to spend the money, time, and effort to take the case all the way up to this Court. This case thus provides an excellent opportunity to set lower courts straight on this subject.

Conclusion

Injunctions against repeating libelous statements may be constitutional, if they are entered after a trial in which they are found to be libelous. But neither challenged part of the injunction in this case qualifies: One part covers all speech about the plaintiffs, not just libelous speech, and the other covers specific statements that had not yet been found libelous at trial. This Court should hear the case, and reverse the dangerous precedent set by the court below.

[1] See Aukerman v. Adams, Fla.Cir.Ct. Volusia Cnty. No. 2013-33765-FMCI (Feb. 5, 2014), available at https://www.washingtonpost.com/?news/???volokh-conspiracy/wp-content/?uploads/sites/14/2017/04/?AukermanProsecution?.?pdf; Eugene Volokh, Two Past Prosecutions for Forged Court Orders in Libel Takedown Cases, Reason, Apr. 21, 2017, https://reason.com/volokh/2017/04/21/?two-past-prosecutions-for-forg.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

35 responses to “Can a Person Be Banned from Posting Anything About Someone Else, Because His Past Speech Supposedly Stems from a "Vendetta"?

  1. Get begin working at home with Google! it was the utilization of a gigantic edge the pleasant profession move had. last Wednesday I were given a simple out of the issue new BMW on the grounds that getting a compensation for $6474 this – a month past. I started this 8-months past and immediately have moved toward becoming aligning home at any cost $77 with hour. I craftsmanship by means of this association visit tech tab for work detail? ????? GOOD LUCK??

    HERE? http://www.ezflyhigh.com

  2. This is another in a long sequence of posts by EV. In these, he attempts to build a bridge of precedents from pre-internet speech law to the post-internet era. His apparent intent is to extend wise pre-internet legal interpretations to radically-changed post-internet conditions, to which former precedents often should not be applied.

    The internet has changed the very concept of “speech.” Volokh uses that very word throughout these posts, again and again, without ever noting that what passed as “speech,” pre-internet, is now, post-internet, not mere “speech,” but publishing. EV neglects to note that during the pre-internet era published speech was different?subject to efficient, non-legal, privately operated screening procedures, which largely prevented publication of the kinds of scurrilous personal attacks of no public importance which provide the substance of most of these post-internet cases

    What has changed is that now a giant body of would-be personal malice can find a published outlet, which never could before. Opening the door to that is a consequential decision, requiring careful consideration and revised precedent, lest the new reality call into public question the very idea of protection for speech freedom. Volokh would be wise to reconsider his advocacy.

    1. If so, you are encouraged to pass an amendment granting the government power to silence people for Really Good Reasons, that being defined by what those in power say it is.

      1. Krayt, no amendment needed, nor any government oversight either. Just repeal Section 230 and go back to the publishing regime pre-internet, where private editing took care of these problems.

        1. I love arguments like this! It would basically kill dead any open-to-the-public forum that had even the slightest bit of moderation.

          The only forums allowed would either be secret to the public (with publicly discussing the contents be a contract violation causing the violator to owe some restitution), or places lacking any and all moderation (even the light moderation of Reason’s comment board would be too much to escape liability).

          Even reddit and 4Chan have lines you can’t cross, and thus would incur liability.

          It’s very much a “throwing out the baby with the bathwater” solution.

          1. Escher, you are mistaken. Access to publishing would be broader than it ever had been before the internet?for the simple reason that technology has largely eliminated the substantial seed capital that used to be required to accomplish publication. Now, anyone who wants a forum can start his own, at trivial cost. The difference between us is merely that I suggest?as you do not?that everyone who does so should be subject?as previously?to the liability laws which still today constrain ink-on-paper publishers.

            Your argument is really nothing more than a demand that publishing be liability free?something it had never been prior to Section 230. During that previous interval, it seems to me, publishing was a tool more socially useful, and more privately profitable, than it has lately become.

            Indeed, our present publishing regime is on the verge of wiping out most of the value that private publishing so long contributed to society. In exchange, it offers some unique new benefits, and many more detriments.

            My impression is that many of the most vigorous advocates of the new regime found their advocacy mainly on enthusiasm for the new detriments. That strikes me as nihilistic, and as I said, unwise.

            1. Your argument is really nothing more than a demand that publishing be liability free?something it had never been prior to Section 230. During that previous interval, it seems to me, publishing was a tool more socially useful, and more privately profitable, than it has lately become.

              Your argument is nothing more than your continued misunderstanding of the fact that hosting and publishing are different things. It’s ironic that you keep talking about the fact that the “new” technology of the Internet changes the very concept of speech, but don’t grasp that it changes the concept of publishing. Facebook is not publishing everyone’s posts. The Volokh Conspiracy, or Reason, are not publishing everyone’s comments. They are hosting the comments. And imposing the print liability regime for publishers on Internet hosts is a terrible idea, as it would in fact deeply restrict what people would be able to say.

        2. Again: Lathrop supports censorship. He will pontificate about how “private editing” isn’t censorship, but aside from the fact that he’s wrong about that, he’s not really talking about private editing in the first place. He’s talking about editing under the threat of liability imposed by the government.

    2. I don’t agree with everything you say (I don’t think the Internet changed the very notion of speech), but I do agree that the Internet makes it very easy to conduct harassment campaigns, including often anonymous ones, which were never possible or required a great deal of effort in the past.

      And that may require that courts have some power to address targeted harassment in a swift manner.

      Now, how we go about that and how we do that while protecting free speech is an unresolved question.

      1. What makes it particularly problematic is that the issue arises at the same time that accusing somebody of harassing speech has become the method of choice for silencing dissent.

        1. I agree Brett!

          That’s the conundrum. You don’t want anyone to be able to scream “harassment!” at any speech they disagree with or which hurts their feelings and get a court order suppressing it.

          But on the other hand, there are cases I am aware of involving obsessed people who dox, contact employers, harass significant others and children and family members, repeatedly post false statements on social media, etc. And in that situation, “well, you can sue, wait the better part of a year for a jury trial, get a verdict, and then obtain an injunction from the Court after the verdict that prohibits the specific speech that was adjudicated as defamatory but will not prohibit the defendant from starting anew with additional harassment” is not really a good answer.

          So we have to figure out a way to get the rule right. And it’s not easy, and I don’t minimize your concern about false claims of harassment.

    3. You’ve said this many times before. You were wrong then and you’re still wrong. Your romantization of pre-internet speech is loaded with revisionist history. Speech is speech, publication happened before the internet in all sorts of ways and the internet did nothing to change it except make it a bit more common.

      1. Tell me the revisionist history.

    4. If there’s a distinction between speech & publication, do you think Hustler Magazine, Inc. v. Falwell was wrongly decided? That case appears to break your assumption that there existed a 1st amendment distinction between speech & publication in the pre-internet era.

    5. I knew any free speech post would be the Bat Signal to Censorman, Stephen Lathrop. Just didn’t know he’d get the first comment in.

    6. “What has changed is that now a giant body of would-be personal malice can find a published outlet, which never could before.”

      There was always the printing press. I found these titles, and these are all religious pamphlets from the 1650s:

      Testimony against false teachers; A Brief Discovery of the Threefold Estate of AntiChrist; False Prophets, AntiChrist deceivers; Innocency cleared from Lyes; Fruits of Unrighteousness & Injustice; Oh Wo, Wo from the Lord; The Throne of Truth Exalted over the Powers of Darkness; Fiery Darts of the Divel quenched; A Visitation of the Rebellious Nation of Ireland; A Narrative plainly showing the Priests of England are AntiChrist; A Bunch of Grapes and an Iron Rod…

      …and that’s just the *Quakers.*

      http://www.qhpress.org/cgi-bin/q1650s.html

  3. Proposition of Law II: Speech cannot lose constitutional protection just because it is believed to have an “illegitimate reason.”

    Come on, man. Government is doing the believing here. It’s all good.

  4. You do realize you’re basically arguing against restraining orders, right?

    1. He is arguing against restraining orders he regards as overbroad. The entire argument is about where the line should be drawn. Your argument here is like the one that responds to any criticism of a specific regulation with “then why don’t you move to Somalia”

      1. The entire argument is about where the line should be drawn.

        Yep. And he draws the line at “only after trial”.

        He isn’t really subtle about this.

    2. EscherEnigma: Depends on the restraining order. Most restraining orders restrain physical conduct (you can’t show up at petitioner P’s house), constitutionally unprotected speech (you can’t threaten P), or unwanted speech to P, such as phone calls or e-mails (I argue here that such speech to one unwilling listener may be restricted). But, yes, when a restraining order bars all speech about P, that is unconstitutional. And when a restraining order bars even specific speech about P, before a finding on the merits that the speech is unprotected, it’s unconstitutional, too.

      Note also that it’s not just me arguing this — many court decisions, such as the ones I cite in the brief, take the same view, and this in states where much narrower restraining orders are commonplace.

      1. Professor Volokh, as a thought experiment, why not strip from your brief all the cases from the pre-interent era? Then see what you have left for subject matter, and how wise it seems to base your legal principles on facts of the kinds contained in those cases.

        Better still, as a more advanced experiment, use only internet cases involving non-public figures, and see what argument you can make for your preferred free speech doctrines on that basis. I suggest you will come up with an argument almost devoid of any power to build a consensus on behalf of free speech.

        1. Let me simplify Mr. Lathrop’s position.

          Professor Volokn should, as a thought experiment, strip all precedent from his argument, and see how his argument holds up then!

          Here is my position for Mr. Lathrop. Make your own legal argument and stop trying to “win” by getting your opponent to surrender.

          putz.

          1. MJBinAL, what these cases are about is justifying liability-free internet attacks on non-public figures. Incongruously, they rely heavily for justification on legal precedents that don’t match that category. I’m simply asking if any brief confined to that category of cases would inspire anyone to suppose it was a justification on behalf of speech protection, instead of an attack on it.

    3. No, he’s arguing against restraining orders for speech. Which, as anyone who has seen this documentary knows, is correct, because the Supreme Court has roundly rejected prior restraint.

  5. The proposition, cited by the Ohio Court of Appeals, that not all speech is of equal First Amendment importance is, of course, contradicted by the text of the amendment.

    If the proponents of the federal constitution had articulated the view that Congress and the federal courts could impose restraints upon speech, and that the basis upon which they could do so would be their “implied” powers, the constitution would never have been ratified.

    Had the framers and the ratifiers intended to conceive an amendment that was not absolute, they could have so crafted. They chose otherwise.

    1. The easy part of the free speech clause is “make no laws”. But the rest of the clause requires some thought. The phrase “the freedom of speech” is not self-defining, and has always been understood to exclude, for instance, true threats of violence from constitutional protection. You are free to believe otherwise, courtesy of the clause, but don’t expect to persuade the rest of us that the free speech clause protects true threats, incitement to imminent violence, perjury, and other widely understood categories of speech that were never understood to be part of the freedom of speech.

      1. All the alleged problems are due to the Fourteenth Amendment’s incorporation doctrine. Congress originally had no need to make laws about threats or shouting fire in crowded theaters.

      2. At the very least, the FA offers protection against prior restraint. In that context, freedom of speech is absolute.

        What business does any organ of the state, including the judiciary, have engaging in the prior restraint of speech?

        1. I’m not convinced Blackstone provides sound justification for the “no prior restraint” argument in the modern world or is consistent with modern jurisprudence. Blackstone’s argument was that you can’t prevent someone from saying something, but you sure as hell can punish them after. That’s inconsistent with modern case law that recognizes threats to punish after have a chilling effect that’s just as bad. Likewise, modern law talks about the same levels of scrutiny regardless of whether it’s prior restraint or not. They’ll pay lip service to the idea that prior restraint is especially bad, but, if it’s strict scrutiny, it’s strict scrutiny either way. The level of restraint rarely seems to make a difference in anything other than rhetoric.

  6. “under well-accepted First Amendment doctrine, a speaker’s motivation is entirely irrelevant to the question of constitutional protection.”

    So then, hate speech?

    1. Well, there is no “hate speech” exception to the First Amendment; but, to be fair to its advocates, they generally wouldn’t limit it based on the speaker’s motivation — they seek to restrict speech that expresses certain views whether the speaker is motivated by hatred or by money or by something else.

      I have a whole article, by the way, on The Freedom of Speech and Bad Purposes, in case anyone is interested ….

  7. Encouraged by this article. I only wish there was as much opposition to “prior restraint” regarding the Second Amendment as there seems to be for the First Amendment. Virtually every gun-control law on the books implements some sort of prior restraint.

    1. Every law implements some sort of prior restraint.

  8. “Can it be constitutional to ban all speech by defendant about plaintiffs?”

    Maybe, maybe not. That is up to the supremes.
    If it can be constitutional to take peoples stuff without even filing charges, if it can be constitutional to infringe upon the right to keep arms with fees, permits, and other infringements based on age and place, why can’t it be constitutional to ban all (internet) speech about a specific set of others?

Please to post comments

Comments are closed.