Ninth Circuit Affirms Anti-Libel Injunction, Rejects Overbroad Portion

The opinion, though, is not binding precedent, so the question whether anti-libel injunctions are unconstitutional prior restraints remains not fully settled.

|The Volokh Conspiracy |

In Ferguson v. Waid, handed down Jan. 8, the District Court had concluded that Sandra Ferguson, a former client of Brian Waid's but also a lawyer herself, had libeled Waid in online reviews; it awarded Waid damages but also issued an injunction.

The Ninth Circuit—in a nonbinding decision, but one that I expect will be fairly influential—held that the injunction was overbroad, but could be constitutional if narrowed to ban only repeating statements found to be defamatory:

Ferguson appeals from the district court's post-trial order, entering an injunction "to protect Mr. Waid from further harassment." The injunction is overbroad at section (a), which prohibits Ferguson generally "from contacting past or present clients of Brian J. Waid, either in person, via telephone, or by electronic communications."  That prohibition is not supported by the district court's findings of fact or conclusions of law regarding defamation, as its effect is to preclude Ferguson from having any communications with Waid's clients, including about topics unrelated to Waid or this lawsuit.

Accordingly, we reverse and remand with instructions to revise section (a) to add the underlined language: "Sandra Ferguson is enjoined from repeating the same or effectively identical statements found to be defamatory in this case to past or present clients of Brian J. Waid, either in person, via telephone, or by electronic communications." With that modification, the injunction will be "tailored to eliminate only the specific harm alleged."

The court also upheld a different part of the injunction, which more generally barred Ferguson from repeating the libelous statements:

Ms. Ferguson is enjoined from publishing again the same or effectively identical statements found to be defamatory in this case; …

Ms. Ferguson shall remove or seek to remove any defamatory statements she has already published about Mr. Waid on the internet.

I had filed an amicus brief arguing that properly tailored anti-libel injunction were constitutional, but that they had to have certain procedural protections (see here and here); the court rejected, without comment, my proposed protections, though it agreed with the substantive point. Note that two of my procedural objections to anti-libel injunctions—that they let people be criminally punished for libel (if they violate the injunction, which exposes them to criminal contempt) (1) without a jury finding that their statements were false and defamatory, and (2) without a lawyer who can argue that the statements weren't false and defamatory—didn't apply here: Ferguson waived her jury trial rights, and was represented by a lawyer (and in any event is a lawyer herself).

The decision leaves matters unsettled in the Ninth Circuit:

[A.] San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1239 (9th Cir. 1997), upheld an anti-libel injunction.

[B.] On the other hand, In re Dan Farr Prods., 874 F.3d 590, 596 n.8 (9th Cir. 2017), noted that "'[s]ubsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context'" (quoting CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in chambers)), but without discussing San Antonio Community Hospital, which seemed to take the opposite view.

[C.] District Courts in the Ninth Circuit are divided on the subject, for instance, focusing just on 2016 and 2017 decisions,

  • Andreas Carlsson Prod. AB v. Barnes, No. CV 15-6049 DMG (AJWx), 2016 WL 11499656, *5 (C.D. Cal. Oct. 11, 2016), concludes that "'Injunctions against any speech, even libel, constitute prior restraints' and are therefore 'presumptively unconstitutional.'"
  • New Show Studios LLC v. Needle, No. 2:14-cv-01250-CAS (MRWx), 2016 WL 7017214, *9 (C.D. Cal. Dec. 1, 2016), concludes that"injunction[s] against defamatory statements" are only allowed in "exceptional circumstances."
  • Vachani v. Yakovlev, No. 15-cv-04296-LB, 2016 WL 7406434, *7 (N.D. Cal. Dec. 22, 2016), concludes that "an injunction [to remove defamatory allegations and not to repeat them] is permissible."
  • List Industries, Inc. v. List, No. 2:17-CV-2159 JCM (CWH), 2017 WL 3749593, *3 n.1 (D. Nev. Aug. 30, 2017), cites various opinions but "takes no position" on the dispute.
  • aPriori Technologies, Inc. v. Broquard, No. 2:16-cv-09561, 2017 WL 11319740 (C.D. Cal. Nov. 22, 2017), enjoins defendant from "Making any statement that refers to both aPriori or its officers, customers, investors, or affiliates, and Mr. Frank Iacovelli with respect to his alleged acts of child endangerment, child abuse or child molestation."

This can be pretty confusing, as aPriori shows. Broquard's Informal Brief argued that the injunction violated his "First Amendment Right to Freedom of Speech," and Broquard and his codefendant had made the argument below. Defendants Joint Response to Plaintiffs Supplement Memorandum of Points and Authoriities [sic], ECF No. 115, aPriori Technologies, Inc. v. Broquard, No. 2:16-cv-09561 (C.D. Cal. Oct. 10, 2017). But, given Broquard's lack of legal expertise, the Informal Brief did not offer any real legal analysis. The Ninth Circuit's disposition therefore said only that, "Broquard's contentions that the injunction violates his First Amendment rights [and other rights] are unpersuasive. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal." Perhaps the District Court in aPriori was right in issuing the injunction—but it did so without sufficient guidance from the Ninth Court, and Broquard likewise lacked a clear statement of the legal rule around which he could have structured his argument.

Ferguson v. Waid, I suspect, will weigh in favor of allowing the narrow anti-libel injunctions (and against allowing broad anti-harassment injunctions that go beyond the material found to be libelous). But, as I said, the matter remains unsettled.

NEXT: Today in Supreme Court History: January 21, 2010

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  1. That sounds about right. Once specific speech has been found to be libel or defamatory as a matter of law it seems only correct that the individuial should be prohibited from repeating that speech.

    Free speech is not the right to say defamatory or libelous things once a court has determined that the content is defamatory or libelous, but no other speech should be enjoined.

    1. But arent temporary injunctions often issued before the conclusion of the legal proceedings? Like after plaintiff prevails over a defendant’s SJ motion

      1. You can’t get them in defamation cases. They are prior restraints.

        1. I think you’re right that you shouldn’t be able to get them in defamation cases, and many cases so hold, see this post. But some courts, including the Ninth Circuit, have indeed allowed them, though sometimes without a detailed discussion of the difference between pre-trial preliminary injunctions and post-trial permanent ones. 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”).

      2. The point is, here this was not a temporary (or preliminary) injunction. It was a permanent injunction after determination on the merits.

      3. Yes but temporary injunctions are:
        a. temporary. That is not the situation in the cases above.
        b. restricted to those situations where there is either no infringement of rights or the infringement is minor and transitory. The Supreme Court has taken a dim view of the claims that any infringement of the First Amendment can be assumed to be minor. And stopping a person’s speech during the time of the legal proceedings is also frequently the time when that speech is most important. Consider the several recent attempts to squelch speech during political campaigns. It does no good to have the temporary injunction lifted only after the campaign is over.
        c. restricted to situations where a judge has enough evidence to conclude that the requestor will likely prevail on the merits. Given the complexities of First Amendment cases, I have trouble coming with very many realistic scenarios where that would be the case.

        As Dilan said, temporary injunctions are prior restraints. They are not generally available in mere defamation cases.

  2. The non-precedent opinion rule that circuits have is terrible. The Ninth Circuit’s rule essentially says its non-precedent orders can’t be cited as persuasive authority either, because it limits citations to res judicata, collateral estoppel, or the law of the case. This is not helpful for district courts needing guidance, particularly in an area where there is already confusion.

    In the modern era of legal research, I can’t think of a good reason for this rule.

    1. The Federal Rules have obviated that:

      Rule 32.1 Citing Judicial Dispositions
      (a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
      (i) designated as “unpublished,” “not for publication,” “non-
      precedential,” “not precedent,” or the like; and
      (ii) issued on or after January 1, 2007.
      (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

      F.R.A.P. 32.1

      1. Thanks for the pointer. (I don’t practice in federal court.) Still, I’m not a fan of unpublished opinions that the circuit says don’t create precedent even if they are not strictly prohibited from citation.

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