The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I blogged this morning about what I think is an unconstitutional injunction that bars defendants—who had accused a police officer of making a white supremacist gesture—from mentioning the name of the officer, who is suing them for libel. I think the underlying allegations against the officer are quite weak (the gesture, the familiar "OK," has long been used with no racial dimension, and I expect continues to be largely used this way). His libel case may also be weak, because the allegations may well be understood as the expression of opinion (a complicated question). But my point was simply that it's unconstitutional to broadly ban defendants from mentioning the plaintiff's name, especially when that's done before trial and without adversary argument.
Some commenters, though, suggested that perhaps the injunction might be justifiable not on a libel theory, but on the theory that the accusations against the officer might foment threats of violence against him, or outright violent attack. That argument doesn't work, I think, but let me explain why.
[1.] Something similar, though with more risk of violence, arose in NAACP v. Claiborne Hardware Co. (1982). In that case, the NAACP had organized (in the late 1960s) a black boycott of white-owned businesses in Claiborne County, Mississippi. Not all black residents were inclined to join, so to enforce the boycott, the organizers stationed "store-watchers" who wrote down the names of blacks who weren't complying; "names of boycott violators were read aloud at meetings at the First Baptist Church and published in a local black newspaper." Those people "were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites." And there were some violent attacks against those who declined to participate in the boycott: "In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged…. The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators."
Store owners sued, essentially claiming that the interference with their customers through threat of violence (as well as of social ostracism) unlawfully interfered with the businesses themselves; and they got damages against the organizers, as well as an injunction. Unconstitutional, the Court held: Though violence and true threats of violence could be punished, but organizing the boycott and naming those who weren't complying was constitutionally protected. (There's more to Claiborne Hardware, but this is the core point that's important in this case.)
The same applies here: Merely criticizing a police officer by name, asking the city to investigate and perhaps discipline him, or even urging "social ostracism" (as in Claiborne Hardware) of the officer is constitutionally protected. That a tiny fraction of people who hear the criticism might follow up with illegal activity (such as "violent acts or threats") can't justify restricting speech to the vast majority who won't act illegally based on it. If the post itself contained threats, then it might lead to liability, and perhaps an injunction against the threats. (Note, though, that there was some potentially threatening language in Claiborne itself, which the Court found wasn't enough for liability). But that can't justify a categorical prohibitions on using a person's name as such, simply on the theory that such use could lead to bad behavior.
[2.] This isn't, though, just a matter of precedent; it's a necessary principle if we are to be able to freely discuss specific incidents, rather than just conceptual abstractions.
Unfortunately, virtually all speech that accuses someone of misconduct—however correctly—could yield some illegal behavior against him. Any newspaper story reporting that someone was arrested for a crime, or convicted of the crime, could lead some people to send the criminal threats, or vandalize his home, or physically attack him. (That is of course especially true if the crime is especially heinous, such as child molestation or rape.) Any story accurately reporting misconduct by a government official, police officer or otherwise, might have the same effect. Any story reporting a person's politically repugnant views (left, right, or otherwise) or unpopular religious views could yield attacks, as well as illegal (and sometimes criminal) employment discrimination.
If the mere risk that some readers will act illegally based on the story can justify orders to take down the story, that will mean that newspapers, bloggers, and others will routinely have to remove or anonymize such stories. (If such a risk can justify civil liability in case someone does act illegally based on the story, that will deter all such stories in the first place.) And even if there has to be a showing of outright threats of violence, such threats are (a) regrettably not uncommon, given how cheap they are to make, and (b) pretty easy to safely fake. I've found over 85 outright forgeries of court orders aimed at trying to get criticism deindexed from the Internet. How much easier and safer would it be for someone to fake an anonymous death threat (or several), when that becomes the reliable way of getting criticisms removed?
For this reason, I think Claiborne Hardware and other similar cases are correct. People need to be free to discuss alleged misbehavior by others—especially but not only by police officers and other public officials—and the risk that some small fraction of the audience will misbehave can't justify restricting this freedom.