Free Speech

Expedited Appeals of Anti-Libel/Anti-Harassment Injunctions

If your client has been ordered not to say things about someone, here are the precedents supporting your right to an expedited appeal.

|The Volokh Conspiracy |

I've been researching injunctions that order people not to say things about other people. Some are limited to statements that a court has found to be libelous. Some are preliminary injunctions, based on a mere finding that the plaintiff's libel case is likely to succeed on the merits. Some extend not just to allegedly libelous statements, but also to any statements that are "derogatory." And some just categorically ban all speech by the defendant about the plaintiff.

I think a lot of these injunctions violate the First Amendment (though properly crafted permanent injunctions against speech found to be libelous might be constitutional). But, beyond the substance, defendants who are challenging the injunctions are also entitled to expedited appellate review, or at least a stay of the injunction pending review. I almost never see such review asked for, likely because the precedents supporting it are so little known; so I thought I'd pass them along here.

[1.] The leading case is National Social Party of Am. v. Village of Skokie, 432 U.S. 43, 44 (1977), which holds that "If a State seeks to impose a restraint of this kind [i.e., an injunction against speech], it must provide strict procedural safeguards, including immediate appellate review." See also Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 209 (Tex. 1981); Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers); CBS, Inc. v. Davis, 510 U.S. 1315, 1317-18 (1994) (Blackmun, J., in chambers).

[2.] This principle applies beyond political speech, for instance to regulation of sexually oriented businesses. See, e.g., M.I.C., Ltd. v. Bedford Township, 463 U.S. 1341, 1343 (1983) (Brennan, J., in chambers); Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, 1122 (1st Cir. 1981).

[3.] And it covers injunctions in disputes between businesspeople, businesspeople and consumers, neighbors, and the like: "[A] preliminary injunction that constitutes a prior restraint on speech requires immediate appellate review." Purucky v. Corsi, 110 N.E.3d 73 (Ohio Ct. App. 2018); Int'l Diamond Exchange Jewelers, Inc. v. U.S. Diamond & Gold Jewelers, Inc., 70 Ohio App. 3d 667, 670 (1991).

[4.] But if you want such prompt review, you had better ask for it promptly, or your delay may lead the court to conclude that you "have effectively relinquished whatever right [you] might otherwise have had to expedited consideration." Morland v. Sprecher, 443 U.S. 709, 709-10 (1979).

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10 responses to “Expedited Appeals of Anti-Libel/Anti-Harassment Injunctions

  1. “I think a lot of these injunctions violate the First Amendment (though properly crafted permanent injunctions against speech found to be libelous might be constitutional).”

    That might be an overreach.
    I’d even go so far as to accept the possibility that a preliminary injunction might be appropriate if the alleged libel is causing or would cause damages that the defendant is unable to pay.

    The key, of course, being the very first word of the first amendment. The first amendment limits Congress’ power, and is utterly silent as to the third branch. If the first amendment prohibits courts from addressing libel, then it prohibits them from addressing libel. And if it doesn’t prohibit courts from addressing libel, then it doesn’t.

    1. What constitutional provision specifically and unambiguously empowers the courts to address libel?

      How do you reconcile the 9th amendment with your position that the liberty to speak and write is subordinate to the power of the judiciary to proscribe speech?

      1. “What constitutional provision specifically and unambiguously empowers the courts to address libel?”

        Article III, for federal courts. The adoption of English common law, for state courts.

        “How do you reconcile the 9th amendment with your position that the liberty to speak and write is subordinate to the power of the judiciary to proscribe speech?”

        By pointing to the 5th. Liberty can be taken following due process. A court finding that speech was libelous is due process. A court finding that the plaintiff is likely to prevail on the merits isn’t as clear-cut, but there is a process, and if it’s followed…

      2. “How do you reconcile the 9th amendment with your position that the liberty to speak and write is subordinate to the power of the judiciary to proscribe speech?”

        Are you of the opinion that courts have to allow witness-tampering, or can they tell the tamperer to knock it off?

    2. “The first amendment limits Congress’ power, and is utterly silent as to the third branch.”

      That is not the way that the First Amendment has been understood. According to you, the President and the entire Executive branch are free to ignore the First Amendment, too?

      Not to mention that the First Amendment has long been construed to apply to the States (which include State courts and State substantive law) through the Fourteenth Amendment.

      1. ” According to you, the President and the entire Executive branch are free to ignore the First Amendment”

        “Congress shall make no law…” You see the word “President” in there? Other amendments (and laws) exist to limit the President’s authority to act.

        “Not to mention that the First Amendment has long been construed to apply to the States”

        The first amendment does not apply to the states. The fourteenth amendment does. They say different things, which is why they have different effects.

        1. 1. Most of the cases I write about involve injunctions issued by state courts, and the Fourteenth Amendment indeed says “no state shall …,” which covers all branches of state government.

          2. For whatever it’s worth, federal courts have long viewed the First Amendment as applicable to federal judges; see, e.g., Justice Story’s 1825 circuit court opinion in Dexter v. Spear, which discussed the “liberty of speech and the liberty of the press” in a diversity case decided under Rhode Island law, even though Rhode Island lacked a state constitution and a corresponding bill of rights at the time. Likewise, three territorial cases, from 1810, 1811, and 1829, similarly discussed the freedom of the press in applying the common law. (I give citations in this article.)

          3. But in any case, this is a post aimed at working lawyers dealing with modern First Amendment law. Whatever one might say that law ought to be under a textualist or originalist view, I’m talking here about what it is under existing precedent.

          1. “1. Most of the cases I write about involve injunctions issued by state courts, and the Fourteenth Amendment indeed says “no state shall …,” which covers all branches of state government.”

            Yes, but it doesn’t then go on to say anything about abridging freedom of speech.

            “3. But in any case, this is a post aimed at working lawyers dealing with modern First Amendment law.”

            Shouldn’t working lawyers dealing with modern First Amendment law already know their precedents?

  2. I wonder about “gag orders” which prohibit speech about the case and would pretty much do the same thing as a preliminary injunction.

    1. Sure, these precedents support immediate appellate review for them, too.

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