The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In a case raising important First Amendment issues for the Internet age, the ACLU of Rhode Island has taken on the defense of a Massachusetts blogger who was ordered by a Rhode Island Superior Court judge to "immediately remove" from his website "any and all posts, blogs, and comments" regarding a person who sued him for libel [warning: health-threatening overuse of large-and-small-caps -EV], without even hearing from the internet publisher. Considering the court order a classic example of censorship, ACLU of Rhode Island cooperating attorney Lynette Labinger has removed the case to federal court for adjudication.
The injunction also bars the defendant from, among other things, "cyber stalking, cyber bullying, … annoying, … or otherwise interfering with plaintiff," which is unconstitutionally vague, I think, as well as unconstitutionally overbroad.
The ACLU goes on:
Aidan Kearney, whose business is based in Worcester, Massachusetts, runs a website and blog on www.turtleboysports.com. In February, he re-posted a video and numerous Facebook comments originally posted to the web by Hopkinton resident Kathryn Narcisi. He did so after Narcisi's Facebook postings requested media coverage of an incident at Kent County Hospital, where she claimed the hospital refused to treat her for autoimmune disease.
Kearney's reposts were accompanied by skeptical and mocking headlines, commentary and captions, including "American Idol Outtakes" Narcisi had posted of her singing. Kearney posted a blog titled, "Failure Swift Gets Kicked Out of Warwick's Kent Hospital for Faking Sickness, Posts Facebook Video Whining in Lobby, Tries to Get National News Attention Despite Long History of GoFundMes," which generated a number of posted comments, also often mocking Narcisi.
Last month, Narcisi filed a libel lawsuit claiming the blog post "defamed and discredited" her, and that it led to her receiving unwanted messages "from followers of the defendant's website." At a court hearing held before Kearney was ever notified, RI Superior Court Judge Susan McGuirl issued a temporary restraining order requiring the removal of any and all references to Narcisi from Kearney's website and all other "associated" sites.
After learning about the order and that it was scheduled for another hearing to consider whether it should be extended indefinitely, Kearney contacted the ACLU, which agreed to provide legal assistance to address these significant First Amendment issues. ACLU of RI cooperating attorney Lynette Labinger removed the case to federal court on Tuesday, and will be filing a formal motion to dismiss the lawsuit next week.
Kearney describes his website as dealing with "investigative journalism, news, and exposing inappropriate public behavior in the most entertaining way possible." In a blog he posted after the suit was filed, Kearney wrote: "What planet am I on right now? The State of Rhode Island is allowing this woman to go forward with a lawsuit against me for damages due to 'injury to her feelings,' because people not associated with Turtleboy contacted her without us asking them to do so. Madness."
Kearney said today: "A judge has no right to tell an independent media outlet to remove factually based content and commentary from a website, particularly since this website is my livelihood. As a former history teacher, I understand why the Founding Fathers insisted that free speech be protected in the Bill of Rights, particularly speech that some may find offensive. Protecting agreeable speech is easy, but our freedoms are put to the test when some find it to be controversial."
ACLU of RI cooperating attorney Labinger stated: "The internet can be full of intemperate and uncomfortable discussions. When they are about you, the natural reaction is to want to make them go away. But we must never lose sight of the important First Amendment rights of free speech and free press that will be lost if we or our courts give in to those reactions. To quote a 50-year old U.S. Supreme Court decision: 'It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.'"
ACLU executive director Steven Brown added: "The court's order requiring the removal of items from a website is a classic prior restraint that the First Amendment simply does not countenance. In order to avoid a chilling effect on Internet speech, we are hopeful that this suit will be dismissed promptly."
In this case, I agree entirely with the ACLU. Though I think that injunctions against material proved at trial to be libelous can be constitutionally permissible, temporary restraining orders, entered before any such trial on the merits—and, in this case, apparently entered without even a preliminary adversary hearing—are unconstitutional. And an order that requires the removal of all mentions of a plaintiff, rather than just libelous statements, is even more clearly unconstitutional.
I expect the federal court, to which the case has been removed (because the plaintiff and defendant are citizens of different states), to promptly vacate the injunction; as I wrote in my forthcoming Penn article on anti-libel injunctions,
Such … preliminary injunctions have been sharply condemned by most appellate courts that have seriously considered them—even by courts that authorize … permanent injunctions—because those injunctions suppress speech without a finding on the merits that the speech is unprotected. In the words of the California Supreme Court in Balboa Village Island Inn, Inc. v. Lemen, the most influential recent decision allowing permanent injunctions against libel,
"In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. '… The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press …. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted….'"
Likewise, when the Kentucky Supreme Court authorized permanent injunctions against libel, it expressly rejected preliminary injunctions:
"[T]he speech alleged to be false and defamatory by the Respondents has not been finally adjudicated to be, in fact, false. Only upon such a determination could the speech be ascertained to be constitutionally unprotected, and therefore subject to injunction against future repetition. We are mindful that the rule announced herein delays the availability of injunctive relief during the time it takes to litigate the issue. Thus, while the rule may temporarily delay relief for those ultimately found to be innocent victims of slander and libel, it prevents the unwarranted suppression of speech of those who are ultimately shown to have committed no defamation, and thereby protects important constitutional values."
The Nebraska Supreme Court took the same view:
"A jury has yet to determine whether Sullivan's allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan's speech, constitute unconstitutional prior restraints in derogation of Sullivan's right to speak."
Or in the words of the Alaska Supreme Court, "Preliminary injunctions are almost always held to be unconstitutional burdens on speech because they involve restraints on speech before the speech has been fully adjudged to not be constitutionally protected." And while the court went on to say that, "A preliminary injunction barring speech may be permissible only if the trial court has fully adjudicated and determined that the affected speech is not constitutionally protected," the injunction that it was authorizing this way isn't really so preliminary. The few cases that have upheld preliminary injunctions against libel have not squarely responded to this criticism.
More generally, the Supreme Court likewise held in Vance v. Universal Amusements, Inc. that alleged obscenity cannot be enjoined simply based on a pretrial showing that the speech was likely to be obscene—at least absent the procedural protections offered by Freedman v. Maryland—even though it could be enjoined after a finding of obscenity on the merits. Likewise, in Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, the Court upheld an injunction against an illegal advertisement only "because no interim relief was granted," so that "the order will not have gone into effect before our final determination that the actions of Pittsburgh Press were unprotected."
The problem with [such a] preliminary injunction, then, is that it doesn't just lead to punishment of speech that a jury has found libelous beyond a reasonable doubt (or even by a preponderance of the evidence). It leads to punishment of speech that a judge has found will likely be shown to be libelous, and this finding may have been based on a highly abbreviated (and sometimes even ex parte) adjudicative process.
 See also Mishler v. MAC Systems, Inc., 771 N.E.2d 92, 98–99 (Ind. Ct. App. 2000) (condemning a preliminary injunction issued "after only the most preliminary of determinations by the trial court"); St. Margaret Mercy Healthcare Centers, Inc. v. Ho, 663 N.E.2d 1220, 1223–24 (Ind. Ct. App. 1996) (dissolving a preliminary injunction on First Amendment grounds, because speech cannot be restricted "before an adequate determination that it is unprotected by the First Amendment"); Hartman v. PIP-Group, LLC, __ S.E.2d __ (Ga. Ct. App. 2019) ("We have found no Georgia case upholding an interlocutory injunction prohibiting speech. Our Supreme Court has noted that although 'it has never been held that all injunctions against publication are impermissible,' such an injunction has been upheld only when it 'was entered subsequent to a verdict in which a jury found that statements made by [the defendant] were false and defamatory.'"); Anagnost v. Mortgage Specialists, Inc., 2016 WL 10920366, *3 (N.H. Super. Ct.) ("[B]y asking for a preliminary injunction, the plaintiffs seek to enjoin Gill from making statements that have not yet been found to be unprotected."); Paradise Hills Assocs. v. Procel, 1 Cal. Rptr. 2d 514, 519 (Cal. Ct. App. 1991) ("A preliminary injunction is a prior restraint."); Cohen v. Advanced Med. Group, 496 S.E.2d 710, 710-11 (Ga. 1998) (overturning a preliminary injunction against libel on the grounds that the injunction was not "'entered subsequent to a verdict in which a jury found that statements made by [defendant] were false and defamatory'" (quoting High Country Fashions, Inc. v. Marlenne Fashions, Inc., 357 S.E.2d 576, 577 (Ga. 1987))); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993) (stressing that an injunction of charitable solicitation was permitted only "after a final adjudication on the merits that the speech is unprotected").
 But see Gillespie v. Council, 2016 WL 5616589, *3 (Nev. Ct. App. Sept. 27) (reluctantly allowing preliminary injunction in libel case, because a 1974 Nevada Supreme Court had allowed such injunctions); San Antonio Community Hosp. v. Southern Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1233–39 (9th Cir. 1997) (concluding that a preliminary injunction in a labor union libel case was not a prior restraint because the statements were so misleading as to be fraudulent, and "[t]he First Amendment does not protect fraud"); Bingham v. Struve, 591 N.Y.S.2d 156, 158-59 (Sup. Ct. App. Div. 1992) (ordering a preliminary injunction against a libel on a matter of private concern, concluding that the libel was constitutionally unprotected but not considering the prior restraint problem); Parland v. Millennium Const. Servs., LLC, 623 S.E.2d 670, 673 (Ga. Ct. App. 2005) (allowing a preliminary injunction so long as there is a showing of irreparable harm); Barlow v. Sipes, 744 N.E.2d 1, 10 (Ind. Ct. App. 2001) (allowing preliminary injunction as to speech on matters of "primarily private concern").
 445 U.S. 308 (1980); see also Blount v. Rizzi, 400 U.S. 410, 420 (1971) (holding that a determination by a judge of "probable cause" that speech is obscene is insufficient to justify a restriction); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 240 (1990) (reaffirming this principle as to "prior restraint[s] in advance of a final judicial determination on the merits"); State v. Book-Cellar, Inc., 679 P.2d 548, 553-55 (Ariz. Ct. App. 1984) (upholding a statute that authorized preliminary injunctions against the distribution of obscenity by requiring "that a final judicial determination [be] made by the end of 60 days from the issuance of a preliminary injunction," a safeguard compelled by Freedman v. Maryland, 380 U.S. 51 (1965)); City of Cadillac v. Cadillac News & Video, Inc., 562 N.W.2d 267, 270 (Mich. Ct. App. 1996) (overturning down a preliminary injunction of obscenity on the grounds that the injunction would permit "removal of allegedly obscene materials from circulation before a judicial determination whether the material is obscene, with none of the safeguards" established in Freedman v. Maryland, 380 U.S. 51, 59 (1965)).
Finally, note that the First Circuit has held that even permanent anti-libel injunctions barring the repetition of statements found to be libelous at trial are unconstitutional (see Sindi v. El-Moslimany).