The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.]
So far, I have argued that the First Amendment does not preclude properly crafted anti-libel injunctions, in part because they are similar to constitutionally valid properly crafted criminal libel laws.
But should courts essentially recreate such mini-criminal-libel laws in states that have repealed their criminal libel laws? Or would that improperly contradict the legislature's judgment embodied in that repeal?
When the California Legislature, for instance, repealed its criminal slander law, it specifically said, "the Legislature finds and declares that every person has the right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution." It likely had much the same motivation for repealing its criminal libel law five years before. Likewise, in the words of the Model Penal Code drafters, who called for decriminalizing libel, "penal sanctions cannot be justified merely by the fact that defamation is evil or damaging to a person in ways that entitle him to maintain a civil suit." And the New Jersey Supreme Court relied on this in refusing to read the state's criminal harassment statute as punishing defamation:
At the time the Legislature passed the New Jersey Code of Criminal Justice [which was based on the Model Penal Code], it repealed New Jersey's last criminal libel statute. In doing so, the Legislature signaled that the criminal law would not be used as a weapon against defamatory remarks, thereby aligning our new criminal code with the Model Penal Code.
It makes sense for courts to likewise look to legislative judgment in deciding whether criminal contempt law should "be used as a weapon against criminal remarks," would limit people's "right to speak out, to poke fun, and to stir up controversy without fear of criminal prosecution," and should lead to "penal sanctions" for "defamation."
To offer an analogy: Say that a state legislature repeals the state's criminal adultery statute (as most states have), but the state courts continue to recognize the tort of "alienation of affections," under which a spouse can sue the other spouse's lover. And say that a plaintiff in a criminal conversation case not only seeks damages against the defendant, but an injunction ordering the defendant not to have sex with the plaintiff's spouse. A court should be reluctant, I think, to issue such an injunction—an injunction that would threaten to punish the lover with criminal contempt for any continued adultery—when the legislature has generally concluded that adultery should not be criminally punished.
And indeed courts sometimes do take the view that "judicial application of equity-rooted remedies should be informed by—and, sometimes, altered significantly in deference to—the legislative policy judgments reflected in intervening statutory enactments, even where the statutes themselves would not directly reach the subject matter of the dispute before the court." Texas courts, for instance, have so reasoned in refusing to authorize certain kinds of pre-suit depositions in libel, certain awards of prejudgment interest, and certain kinds of piercing of the corporate veil. In all those cases, courts looked closely at legislative judgments reflected in statutes that deal with similar questions, and tried to avoid judicial innovations that would conflict with those judgments.
Likewise, many courts have limited the equitable laches defense in light of a legislatively enacted statute of limitations, on the grounds that, "[t]o import laches as a defense to actions at law would pit the legislative value judgment embodied in a statute of limitations . . . against the equitable determinations of individual judges," and thus "would alter the balance of power between legislatures and courts regarding the timeliness of claims." Conversely, where a legislature has expressly authorized some tolling of statute of limitations, courts can rely on that legislative judgment in interpreting their own equitable principles: "[A] legislative policy judgment may be properly considered in determining the application of a common law [i.e., 'judge-made'] doctrine such as equitable tolling."
Indeed, some court opinions rejecting "obey-the-law" injunctions seem to reflect this concern with subjecting "defendants to contempt rather than the statutorily prescribed sanctions." Congress, for instance, deliberately made employment discrimination, even repeated employment discrimination, a tort, not a crime. Enjoining a particular employer from engaging in discrimination would make such discrimination into contempt of court, courts stress. The courts generally don't explain just why "subject[ing] the defendants to contempt proceedings" in such cases is wrong. But the reason may be that such proceedings would interfere with the legislative judgment to keep the criminal law out of employment discrimination cases.
Of course, a court that is open to considering legislative judgments when deciding whether to create an innovative remedy must answer the question: Just what judgment did the legislature make when repealing a criminal libel statute, beyond the necessary judgment that there ought not be such a statute?
Perhaps the legislature took the view that false and defamatory statements don't merit criminal punishment; as I noted above, that seemed to be the view endorsed by the California Legislature (at least as to spoken words) and by the drafters of the Model Penal Code. If so, then this suggests that anti-libel injunctions, enforceable by punishment for criminal contempt, should likewise be rejected.
But perhaps the legislature took the view that criminal libel law is too likely to chill a broad range of speech, because speakers know that they can be punished for any factual allegation, even one they think is accurate (so long as the jury errs, as juries might, about the speaker's mens rea). If so, then that suggests that catchall injunctions, which likewise ban all knowing falsehoods about a particular person, should be rejected—but perhaps specific injunctions, which warn speakers away from specific claims that courts have already found to be false, might be permissible.
Or perhaps the legislature thought that people shouldn't be imprisoned just for an isolated lie about someone, even a damaging lie, because such lies are so common—but the legislators might not have been contemplating what should be done about sustained campaigns of defamation. This would suggest that both catchall injunctions and specific injunctions, which are aimed at preventing such repeated defamation, would be consistent with that legislative judgment.
And, finally, perhaps the legislature lacked any widely shared judgment at all about the subject, other than that the criminal libel statute ought to be repealed. Maybe some legislators thought one thing, some thought another, and some simply voted for the repeal because it was part of a legislative package that gave them something else the wanted.
Still, so long as courts take the view that judge-made principles should be developed in light of legislative decisions (rather than just that such principles shouldn't outright violate express legislative commands), courts will have to infer something about the underlying legislative judgment. Perhaps the courts might err in their reading of what judgment the legislature made, but then the legislature can correct them. (A legislature can of course expressly forbid anti-libel injunctions; and, if my analysis in Part V is right, then it can expressly permit them.) In the meantime, if courts believe that the legislature has expressly rejected criminal punishments for libels, they shouldn't recreate those criminal punishments through the route of injunctions and criminal contempt.
 See, e.g., 1978 Alaska Sess. Laws 118-19; 2005 Ark. Acts 7469-72, § 512; 1986 Cal. Stat. 311; 2012 Colo. Sess. Laws 391-92; 2015 Ga. Laws 390, Act 70 § 3-1; 1976 Iowa Acts ch. 1245, ch. 4 § 526; 2002 Md. Laws 686; 1978 N.J.L. ch. 95, § 2C:98-2; 1985 Or. Laws 759; Commonwealth v. Mason, 322 A.2d 357, 359 (1974) (Jones, C.J., concurring and dissenting) (noting that the Pennsylvania criminal libel law was repealed by 1972 Pa. Laws 1611, Act No. 334); 1998 R.I. Pub. Laws 324-25; 2009 Wash. Sess. Laws 597-98.
 The alienation of affections tort remains commonly used in North Carolina (with over 200 filings per year, and with the pattern in appellate cases suggesting that the filings are evenly split among men and women), and continues to exist in several other states. See Data from N.C. Administrative Office of Courts, 2000–08; Eugene Volokh, Alienation of Affections—Still Alive, Volokh Conspiracy, July 28, 2009, http://volokh.com/posts/1248793691.shtml. The alienation of affections tort can theoretically cover nonsexual behavior as well as adultery; to be precise, the criminal conversation tort is the one that focuses just on sex. But in the few jurisdictions where at least one of the torts survives—including in North Carolina, where the alienation tort seem to thrive—most such adultery-based cases are brought as alienation of affections cases.
 Of course, if the legislature's judgment repealing criminal libel law had been made in a legal regime where injunctions were commonplace, one could have inferred that the legislators were leaving the possibility of criminally enforceable prohibitions on libel to the discretion of judges in civil cases. Say, for instance, that the legislature criminalizes nuisances and then repeals that criminal ban. In a system where injunctions against nuisance are routine, we shouldn't infer that the legislature meant to preempt these traditionally accepted injunctions.
But when most criminal libel laws were repealed by various states, the conventional wisdom was that courts would not be enjoining libel. The legislature thus couldn't reasonably be presumed to be preserving such a remedy. And the decision to repeal the criminal libel statute should be seen as barring "obey the [tort] law" injunctions that have the effect of reinstituting criminal libel law for the defendant (at least when the defendant is speaking about the plaintiff).
 Compare the statutory construction literature arguing that legislative intent ought not guide statutory interpretation because such intent generally can't be determined. See, e.g., Frank H. Easterbrook, Statutes' Domains, 50 U. Chi. L. Rev. 533, 547 (1983); John F. Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 18–21 (2001); Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511, 517.
[You might also read my earlier posts on the subject,
- Anti-Libel Injunctions and the Criminal Libel Connection
- The First Amendment and Criminal Libel Law
- The First Amendment and the Catchall Permanent Injunction
- The First Amendment and the Specific Preliminary Injunction
- How Specific Anti-Libel Injunctions Underprotect Speech
- The First Amendment and the Hybrid Permanent Injunction
- Restricting Injunctions to Libels on Matters of Private Concern?
- The Limited Role of Mens Rea in Hybrid Anti-Libel Injunctions
- The First Amendment and the Hybrid Preliminary Injunction
- Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]