Freedom of Speech

Anti-Libel Injunctions and the Criminal Libel Connection

My new article, forthcoming in the University of Pennsylvania Law Review late this year -- I'd love to get feedback, while there's still plenty of time to edit it.

|The Volokh Conspiracy |

Here's the Introduction (minus the footnotes)—you can find the whole text here:

[* * *]

An injunction against libel, which carries the threat of prosecution for criminal contempt, is like a miniature criminal libel law—just for a particular defendant, and just for statements about a particular plaintiff. That is its virtue. That is its danger. And that is the key to identifying how the First Amendment and equitable principles should constrain such injunctions.

From the 1960s to the 1990s, libel was conventionally understood to be controlled (to the extent that it can be controlled) by the threat of civil damages. Criminal libel was seen as an anachronism. Injunctions were seen as unavailable in libel cases, whether because "equity will not enjoin a libel," because anti-libel injunctions were unconstitutional prior restraints, or for some related reason. My sense is that many people still assume this is so.

When one considers the libel cases from the mainstream First Amendment casebooks—New York Times Co. v. Sullivan, Gertz v. Robert Welch, Inc., and Dun & Bradstreet v. Greenmoss Builders—focusing on damages makes sense. For libels by a newspaper, magazine, or credit rating agency, damages are likely both a fair remedy and a reasonable deterrent. Criminal liability seems like overkill, and an injunction is usually pointless: The defendants there aren't likely to keep saying false things about the plaintiff in any event, especially after a libel judgment, so nothing will need enjoining. Print defamation is generally a short sharp shock, which causes damage in a way that an injunction can't stop, but that damages might deter. Even defamation in a credit report will usually stop when the credit agency is shown its error (and especially when it is ordered to pay damages).

But the judgment-proof libeler, always a hazard, has become still more common—and more dangerous—in the Internet age. The Internet lets speakers publish libels at little cost to a potentially broad audience, and these libels can cause enduring damage. Every time someone types a plaintiff's name into Google, the libels pop up again. Moreover, 47 U.S.C. § 230(c)(1) generally immunizes intermediaries, such as search engines or online service providers, that do have money. In any practical sense, damages awards do not leave plaintiffs in such cases with "an adequate remedy at law"; damages cannot be collected from the judgment-proof, and cannot effectively deter them. If libelers who lack money are to be deterred, criminal punishment is the one tool that can do the job.

Consider, then, several different ways that such criminal punishment can be threatened. Assume that judgment-proof Don says Paula cheated him in business, and Paula thinks he's lying. We can imagine several possible responses:

Criminal libel: Paula goes to the prosecutor, who tells Don, "We still have a criminal libel law in this state; I think your statements about Paula are lies, and if you keep libeling her, I'll prosecute you for criminal libel." That doesn't violate the First Amendment, as I'll discuss in Part I, though it may be condemned as too likely to chill speech (especially since prosecutors can prosecute under such statutes even without giving warning).

The catchall injunction: Paula goes to court, and gets an injunction against Don saying, "You may not libel Paula, or you will be prosecuted for criminal contempt." That, I'll argue in Part II, also doesn't violate the First Amendment, though it may also chill speech too much, and appellate courts generally frown on such injunctions (though some trial courts have imposed them).

The specific preliminary injunction: Paula goes to court, and gets a preliminary injunction against Don saying, "You may not say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." Appellate courts generally condemn such injunctions (though again some trial courts have imposed them). Though the injunction is less chilling than criminal libel law, it fails to offer some of the important procedural protections than criminal libel law does (as Part III discusses). In particular, such a specific preliminary injunction lets speech be suppressed based on just a likelihood-of-success-on-the-merits preliminary finding, rather than a full decision on the merits, following a trial.

The specific permanent injunction: Paula goes to court, and gets a permanent injunction against Don saying, "You may not say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." More than thirty states have allowed such injunctions, at least in some situations, and only six have generally rejected them. If "equity will not enjoin a libel" was ever a firm rule, it isn't so now. But, I'll argue in Part IV, that these injunctions also fail to provide certain important procedural protections.

The hybrid permanent injunction: Paula goes to court, and gets a permanent injunction against Don saying, "You may not libelously say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." This sort of injunction, I'll argue in Part V, can provide the procedural protections that criminal libel law and catch-all injunctions offer—chiefly because the injunction by its terms only punishes speech if it's found libelous both at the injunction hearing and at the ultimate criminal contempt trial—but at the same time has the narrower chilling effect that characterizes the specific permanent injunction.

The hybrid preliminary injunction: Paula goes to court, and gets a preliminary injunction against Don saying, "You may not libelously say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." I'll argue in Part VI that this also provides the constitutionally required procedural protections (unlike the widely condemned specific preliminary injunctions), but at the same time protects Paula against libel more quickly.

One way of understanding this is by focusing on exactly what kind of speech each remedy actually criminalizes:

Criminal libel law

All statements found by jury to be libelous beyond a reasonable doubt

Catchall injunction

All statements by Don about Paula found by jury at contempt trial to be libelous beyond a reasonable doubt

Specific preliminary injunction

Specific statements by Don about Paula found by judge, based on abbreviated hearing, to probably be libelous

Specific permanent injunction

Specific statements by Don about Paula found by judge at trial to be libelous by a preponderance of the evidence

Hybrid permanent injunction

Specific statements by Don about Paula found by judge at trial to be libelous by a preponderance of the evidence and then found by jury at contempt trial to be libelous beyond a reasonable doubt

Hybrid preliminary injunction

Specific statements by Don about Paula found by judge, based on abbreviated hearing, to probably be libelous and then found by jury at contempt trial to be libelous beyond a reasonable doubt

I will argue that properly crafted criminal libel laws and catchall injunctions are constitutional, though probably too broad as a policy matter; that specific injunctions, permanent or preliminary, are unconstitutional; and that hybrid injunctions, permanent or preliminary, are constitutional and may indeed be well-advised.

Properly crafted anti-libel injunctions are thus permissible under the First Amendment, if a state chooses to implement them—as some state courts and state legislatures have done. (I set aside here injunctions that forbid more than just the libelous statements; those are generally unconstitutionally overbroad, and I discuss them in a separate article.) But a court considering whether to allow such injunctions requires a difficult judgment about state law, again precisely because the injunctions effectively create a mini-criminal-libel law.

For instance, about a dozen states have criminal libel laws, and most of those states at least occasionally use them. A properly crafted anti-libel injunction would thus cut out the prosecutor's role, and the opportunity for prosecutors to use their discretion to decline to launch a criminal libel prosecution: A contempt-of-court prosecution for violating an injunction can be started by the court itself—or, in some states, even by the plaintiff—with no need for prosecutorial approval. As I'll discuss in Part VII, courts need to decide whether this is a feature or a bug.

In Part VIII, I'll turn to the many other states have repealed their criminal libel laws. Should courts view the legislative judgment behind repealing criminal libel laws as condemning all criminal punishment for libel, in which case even the narrow injunctions should be unavailable? Or should they view the legislative judgment as condemning only the broad chilling effect of normal criminal libel laws, in which case the narrow injunctions would be permissible? These are hard questions to answer, but state courts need to ask them when deciding whether to recognize a novel remedy that seems to recriminalize what the legislature decriminalized.

As I'll discuss in Part IX, many libel cases end up in federal court because of diversity of citizenship between the parties. Even if a federal court concludes that an injunction in such a case would be consistent with the First Amendment, it should also (following Erie) consider whether such an injunction is consistent with state law, or with how it expects state courts will develop that law.

Finally, in Part X, I'll talk about how this analysis can apply to injunctions in other tort cases: false light, slander, trade libel, slander of title, interference with business relations, and the disclosure of private facts.

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.

31 responses to “Anti-Libel Injunctions and the Criminal Libel Connection

  1. Excellent topic, but a few editorial concerns:

    – The case list up at the top is confusing because of the internal commas. I’d suggest separating them with semicolons instead.

    – I can’t tell the difference between the preliminary and permanent injunction scenarios you describe. I think you forgot to change “preliminary” to “permanent” somewhere? That or the description needs to mention the nature of the hearing in more specificity.

    1. Same for the two hybrid variants, but in reverse.

  2. I think there is a fundamental underlying issue Professor Volokh needs to grapple with and which I would suggest discussing in the article. At the time of cases like New York Times v. Sullivan, in order to create a widely disseminated libel, you had to be a big player like the New York Times who could be assumed to have relatively deep pockets and a public reputation which could be deterred by a money judgment. Creating and disseminating a widely-read libel required a major expense.

    Today, judgement-proof, reputationless (indeed anonymous) parties easily and routinely create viral libels, at essentially no cost, that have huge audiences and impacts.

    This is a new economic/social reality. How does libel law deal with it?

    1. I thought that this is much of what the article was about — see, e.g., paragraph 4 of the Introduction (“But the judgment-proof libeler, always a hazard, has become still more common?and more dangerous?in the Internet age….”).

  3. And as to the constitutional issue, do we say that the entirety of libel law is a constitutional issue to be determined judicially based on constitutional-law type reasoning? Or do we say that the constitution merely addresses what classes of speech are and are not protected by the First Amendment, with legislatures (and common-law courts) free to craft new laws and remedies, reflecting the times, to address non-constitutionally-protected speech?

  4. These cases address the initial (potential) libel.

    We all have the means to forward info (via Twitter, Facebook, e-mail, etc.).

    So it Sally posts on Facebook that Nicky is (something legally libelous), and I receive post and further disseminate it, am I also now liable (criminal or civil)?

  5. Though thoroughly unhelpful to you, I’d enjoy seeing (in another article) more analysis of using preliminary injunctions in business torts to enjoin speech. That seems to be occurring more frequently as the internet gives any disgruntled customer/former employee a medium to reach a large audience to complain about a business’ practices.

    1. I try to talk about this a bit in Part IX, where I suggest the analysis would apply to trade libel, interference with business relations, and the like. Or is there something else that I’m missing here? Please let me know.

  6. I tried to read but couldn’t get over the overt anti-male, sexist bias is the Paula/Don scenarios. Obviously, Paula, a woman, is the victim, and Don, a man, is the evil person doing her wrong. In an age where men have to endure false rape accusations and are subjected to blatant sexist discrimination every day you would think the author who have a better sense to use more appropriate, sensitive, names for his fictional examples. Shame on the author for his sexism.

    1. s/Paula/Jimmie/g

    2. “In an age where men have to endure false rape accusations and are subjected to blatant sexist discrimination every day”

      If you mean all men contend with this every day I can confirm that you’re wrong. If you mean that men as a group contend with this every day, it’s not really any different from any other age. Conscription and the possibility of conscription by itself would check that box.

      In any case, crying about insensitivity is tiring when radical feminists and race-baiters do it. It’s even less endearing when a person who normally criticizes those groups crying does it.

      1. You are obviously a racist and bigot.

        1. I believe the phrase is “Facts don’t care about your feelings.”

          1. Facts are a product of white privilege.

            1. If it was a joke, I commend you. You got me.

    3. I assume this is a joke, but, if not, note that Paula is the victim of the alleged libel, but Don is (in many of the scenarios) the victim of a possibly unconstitutional injunction, and the one whose First Amendment rights I’m trying to protect. Conversely, Don might be properly restricted by a properly crafted injunction — but maybe Paula should lose, especially if it turns out (when all the procedures are followed) that her allegations are insufficiently proved.

      1. As a Trans-man (being a human who identifies as a man from the nation state known as Transylvania) I object to the use of Paula and Don in general. This assumes gender identity. More appropriate gender neutral names such as Treyvon and Biggy Smalls should have been used as examples. Or perhaps just plain designations such as Person ABC and Person DHF (avoid using singular letters are that might imply that “Person” is of a binary gender which is an intersectional no-no).

        Also it is questionable if Don could even be a victim as he is most likely a white male. “Rights” are used by these oppressors to take advantage of women and minorities. As such we cannot progress to our Equal Society if we suggest that white men have “rights” as that just plays into their position of power and privilege.

        1. Transylvania and not Denmark? Something fishy here ….

          1. Transylvania is (or was) land locked. There’s nothing fishy there.

        2. I just want to say that you should be ashamed of yourself for using the sexist terms human and person. I have been triggered by your inadequate wokefulness!

  7. I am really unclear about your destinction between the “hybrid permanent injunction” and the “hybrid preliminary injunction”. Perhaps because your two paragraphs describing them both talk about “permanent injunction.

    Re-reading it, I note that the paragraph about the “specific permanent injunction” also talks about getting a preliminary injunction. This switching back and forth of two visually-similar words is very confusing.

    The table lower down made your intent clearer I think. Reversing the hybrid permanent and hybrid preliminary would make it even clearer since the concepts seem (to me, at least) to build on each other in that order.

    In the paragraph beginning “In Part VIII”, you ask “in which case even the narrow injunctions should be constitutional” but from the contrast with the next question, it appears that maybe you meant “unconstitutional”?

  8. OK, as I see it, you’d like some way to make sure the those formally identified as libellers (mainly judgment-proof people on the Internet) get criminally prosecuted if they repeat their libels. Correct me if I’m wrong, but you’re focusing on the injunction remedy because you don’t think prosecutors are going to file criminal-libel charges because it’s down on their list of priorities unless the person being libelled is an ally of the courthouse clique (that latter part is my own interpretation, not yours). So injunctions plus contempt are required to do what a zealous prosecutor would do with criminal-libel laws.

  9. My basic feeling that post-Hassell v. Bird (a case I lost and of course felt I should have won), that at the least, Balboa Island v. Lemen injunctions should be constitutional.

    In other words, if a judgment-proof libeler is sued, and the case either goes through a trial or a default judgment, at that point, there’s no need for any additional procedural protections. The statements have been adjudicated false and defamatory, and the Court can issue an injunction enjoining them and requiring the libeler to take them down. (Hassell was about whether the intermediary should also be required to take them down– I think the answer should have been yes, but OK, it is apparently no.)

    There’s nothing wrong with that rule, because it simply says to the libeler, come into court and make an evidentiary showing. And it precludes preliminary injunctions, where there hasn’t been a full record.

  10. In the past newspapers could print horrible things about you and there was no way to effectively respond. Sure you could publish your own newspapers or take out an ad, but this takes a long time and meanwhile the damage has been done. But today you can respond immediately in the comments as I am doing right now and even post a link to your rebuttal. There is no longer a need for libel laws.

    The real threat is government censoring commenters like me, due to complaints that I offend one’s delicate sensibilities. Because then I will be unable to effectively respond to libels against me. A secondary threat is web sites banning commenters, though of course they have every right to do so.

  11. This is not related to the content, but to the format, of this article.

    Law review articles would be so much more useful, and so much more widely read, if they would follow a few simple rules.

    1. Live links to full text of citations where available, or else some type of summary or abstract.
    2. Text that flows to fit the user’s screen, even on a mobile device.

    I know the legal profession has a centuries-old tradition of using hard-to-understand formats.* And I know that law review editors would revolt if they had to follow these rules. Perhaps articles could be published in duplicate, once to please editors, and again to please readers.

    Online publishing can be academically rigorous and user-friendly if the publisher so chooses. Example: any of the many peer-reviewed journals published by Public Library of Science (see: https://www.plos.org/).

    I know it’s not the article authors that do the publishing, but if they don’t demand better publishing formats, it will not happen.

    *Tables, graphs, and illustrations are all but prohibited.

    1. When I wrote the Harvard Law Review with a few modest suggestions for spicing up their content they asked me not to contact them again.

      I just wanted to help them expand their readership…

      1. That was a joke, by the way.

        Ha ha.

  12. Okay, I am confused.

    The article states that that Specific Preliminary Injunctions are Unconstitutional, but that Hybrid Specific Preliminary Injunctions are Constitutional.

    But the Hybrid Preliminary Injunction is two part, the first part being a Specific Preliminary Injunction which if that is Unconstitutional then it would seem to be impossible for that first part when combined with the second part, a trial of criminal contempt to be Constitutional because to get to the second part one must get past the first part, which in Unconstitutional and thus cannot be enforced or even entered.

    In other words, if Paula gets a specific preliminary injunction against Don, and Don violates the preliminary injunction his defense in criminal court would seem to be that he has not committed criminal contempt because the preliminary injunction was not valid being Unconstitutional prior restraint.

    What am I missing?

  13. OK, I read the sections about injunctions vs. criminal libel statutes.

    Of course we know in reality that prosecutors have taken upon themselves to pick and choose which cases they prosecute. An injunction, as you argue, would limit prosecutorial discretion.

    As far as prosecutorial discretion, I’m no fan, except in the sense that if the prosecutor has only so much money (s)he should spend the money on the more serious cases, and if the money runs out before (s)he can get to the less serious cases, so be it, you can blame an over-parsimonious legislature.

    And if they don’t think they have enough evidence to persuade an impartial jury, then far from having discretion, I’d say it would be wrong to prosecute.

    But if by prosecutorial discretion you mean the prosecutor going shopping for cases and selecting which ones they feel like prosecuting and which ones they don’t feel like prosecuting, how would that be different from the “dispensing power” of the old kings of England, rejected by the English Bill of Rights and many American counterparts?

Please to post comments