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).