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Why Properly Crafted Injunctions Against Libel Are Constitutional
I'm crowd-testing this draft amicus brief, which I need to be file by Wednesday, April 25. Please tell me what I'm getting wrong here!
Over the last couple of years, I've been looking closely at injunctions against libel, and I've come to agree with the emerging view in recent appellate court decisions -- such injunctions, if properly crafted, are constitutional. But I also think that most of the injunctions are not properly crafted, and I have some ideas as to how they could be made so.
The First Circuit recently asked for supplemental briefing on this question in Sindi v. El-Moslimany, so I thought I'd file an amicus brief offering my analysis; but of course I want to first make sure my analysis is right. And because I am the client as well as the lawyer, I have no reason to keep the draft confidential. I therefore thought I'd blog the text of the draft brief here, and invite all of you to tell me why I'm wrong altogether, why I'm wrong on specific details, how the proposal could be improved, or even what parts of the proposal seem likely to be confusing to the judges.
Note that the brief has not yet been cite-checked, and I expect to do more editing and proofreading even apart from the suggestions I get from you folks and others. Note also that the brief has somewhat more citations, especially to articles, than I'd normally need; I will likely trim out a few of them, and save them for a law review article that I expect to write soon based on this analysis. Here then is the brief:
[* * *]
An anti-libel injunction, enforceable through the threat of prosecution for criminal contempt, is like a miniature criminal libel law—just for a particular defendant, and just for particular statements about a particular plaintiff.[1] That is its virtue. That is its danger. And that is the key to identifying how such injunctions should be structured, and what procedural protections they must contain.
Precisely because they criminalize certain libelous statements, anti-libel injunctions have become a necessary remedy, especially (though not only) for Internet speech. Many Internet libel defendants are judgment-proof. Civil damages are not a meaningful remedy to plaintiffs whom these defendants have libeled—and not a meaningful deterrent to the libelers.
Properly crafted permanent injunctions, though, are a constitutionally permissible remedy, if they follow a judgment on the merits that certain speech is libelous. The Supreme Court has so held as to obscenity and as to unprotected commercial speech. This Circuit has so held as to unprotected charitable solicitation. Most appellate courts that have recently considered the matter have so held as to libel as well.
This makes sense precisely because of the injunctions' similarity to criminal libel law. The Supreme Court has held that properly crafted criminal libel laws are constitutionally permissible. Properly crafted anti-libel injunctions should be as well, especially since they have less of a chilling effect than criminal libel laws do.[2]
But an anti-libel injunction, if not properly crafted, may actually be more restrictive than criminal libel law, because it threatens criminal punishment without providing for the important procedural safeguards that criminal libel law provides. A speaker generally cannot be punished for criminal libel unless the statement (1) is found to be false beyond a reasonable doubt, (2) by a jury, (3) at the time of the criminal trial, in which (4) an indigent criminal libel defendant is entitled to a court-appointed lawyer who can argue that the statement is true, or is opinion, or is privileged.
Yet because of the collateral bar rule, a criminal contempt trial for violating an anti-libel injunction that bans specific statements would normally lack these protections. Even if the criminal contempt trial is before a jury, that jury would only be asked to determine whether the defendant violated the injunction, which is to say whether the defendant repeated the statements that he was enjoined from repeating. The finding of falsehood will only have been made at the time the injunction was entered, by a judge, using a preponderance of the evidence standard, and without a court-appointed lawyer present.
And these procedural gaps in the normal anti-libel injunction enforcement process are especially important for the very reason that anti-libel injunctions are important: Many libel defendants lack money or insurance. They cannot afford a lawyer to defend themselves in the civil case; indeed, they may not be able to meaningfully defend themselves at all. An anti-libel injunction may thus put them in a position worse than that created by criminal libel laws—it may expose them to the threat of criminal punishment without a jury ever having had to find, beyond a reasonable doubt and based on a competent adversary presentation, that the statements are indeed false.
Fortunately, it is possible to craft an anti-libel injunction that offers these important procedural protections. Instead of saying "Defendants are enjoined from stating …," an anti-libel injunction should (a) say, "Defendants … are enjoined from libelously stating," (b) expressly provide that any criminal contempt prosecutions will be conducted before a jury, and (c) expressly provide that the injunction could not be enforced through threat of confinement for civil contempt.
And this approach is important even in this case, where the defendants appear to have had competent representation. The First Amendment rules have to be the same for rich speakers (or speakers well-off enough to have insurance) as for poor speakers. Therefore, if this Court believes that plaintiff has proved her case on the merits (a matter on which this brief does not opine), this Court should vacate the injunction and remand for the entry of an injunction crafted as described above.
Argument
[I.] Properly crafted anti-libel injunctions are often necessary
If a plaintiff is libeled by the New York Times, damages might be a tolerable remedy. The Times can afford to pay, and in any event likely has insurance. Moreover, at least before the Internet era, the defendant will rarely have even wanted an injunction: Once an article has been written, the damage is done, and most newspapers rarely return to the same topic long after they first covered it (which is when a permanent injunction would likely issue).
But the Internet empowers judgment-proof speakers to publish libels to a potentially broad audience, and these libels can cause enduring damage. Every time someone types a plaintiff's name into Google, the libels can pop up again. Damages are a meaningless remedy, because the judgment-proof defendant cannot pay them (and because 47 U.S.C. § 230 immunizes intermediaries, such as search engines or online service providers, that do have money). See, e.g., McCarthy v. Fuller, 810 F.3d at 462 (noting this); Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 351 (Cal. 2007) (likewise). An injunction, on the other hand, would be a useful remedy, because even judgment-proof speakers are not jail-proof.
Of course, even today, some libel defendants will have assets or insurance. (The El-Moslimanys' homeowner's insurance carrier was found not to have either a duty to defend or a duty to indemnify in this case, but it did cover the defense costs until that decision. State Farm Fire & Cas. Co. v. El-Moslimany, 178 F. Supp. 3d 1048 (W.D. Wash. 2016).) But, despite the normal equitable inquiry into whether legal remedies are available, anti-libel injunctions have to be equally applicable to poor speakers and rich speakers.
There cannot be a rule under which "poor people … have their speech enjoined, while the rich are allowed to speak so long as they pay damages." Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syr. L. Rev. 157, 170 (2007). "Conditioning the right of free speech upon the monetary worth of an individual is inconsistent" with constitutional principles. Willing v. Mazzocone, 393 A.2d 1155, 1158 (Penn. 1978); see also Kinney v. Barnes, 443 S.W.3d 87, 100 (Tex. 2014); Life Ass'n of Am. v. Boogher, 3 Mo. App. 173, 176 (1876); Reyes v. Middleton, 17 So. 937, 939 (Fla. 1895). But while these sources used this reasoning to reject injunctions against both poor and rich defendants, it can also be a reason to allow properly crafted injunctions as to both.
[II.] Properly crafted anti-libel injunctions can be constitutional
Properly crafted anti-libel injunctions are constitutionally permissible, if they are entered following a finding on the merits that certain speech is libelous. The Supreme Court has held that courts may properly enjoin the continued distribution of material that had been found to be obscene. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 443-44 (1957). The Court has held the same as to speech that had been found to be unprotected commercial speech. Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390 (1973). This Court has held the same as to prohibitable charitable solicitation. Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993). Neither Kingsley nor Pittsburgh Press nor Auburn Police Union required strict scrutiny of such injunctions.
And, likewise, most state and federal appellate courts that have recently considered the issue have held that courts may properly enjoin the continued distribution of material that had been found to be libelous. In re Conservatorship of Turner, No. M2013-01665-COA-R3-CV, 2014 WL 1901115, *20 (Tenn. Ct. App. 2014);[3] Hill v. Petrotech Resources Corp., 325 S.W.3d 302, 313 (Ky. 2010); Balboa Island Village Inn, 156 P.3d at 352 (Cal.); Sid Dillon Chevrolet v. Sullivan, 559 N.W.2d 740, 747 (Neb. 1997) (dictum), followed in Nolan v. Campbell, 690 N.W.2d 638, 652 (Neb. Ct. App. 2004) (holding); Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991) (so holding as a First Amendment matter, but concluding that Pennsylvania law forbids such injunctions); Lothschuetz v. Carpenter, 898 F.2d 1200, 1206, 1208-09 (6th Cir. 1990); Advanced Training Sys., Inc. v. Caswell Equipment Co., Inc., 352 N.W.2d 1, 11 (Minn. 1984); O'Brien v. University Community Tenants Union, Inc., 327 N.E.2d 753, 755 (Ohio 1975); Retail Credit Co. v. Russell, 218 S.E.2d 54, 62-63 (Ga. 1975); see also McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015) (so suggesting but not expressly deciding on this). Only two appellate opinions that have closely considered the matter in the last fifty years have taken the opposite view. See Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978) (holding that such injunctions violated the Pennsylvania Constitution); Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) (holding that such injunctions violated both the First Amendment and the Texas Constitution).
An injunction against libel in effect criminalizes the enjoined speech, since violating the injunction constitutes criminal contempt. But properly crafted criminal libel laws (generally speaking, ones that require a showing of "actual malice" on the defendant's part) are constitutionally permissible: Civil and criminal libel cases "are subject to the same constitutional limitations," including when the speech is speech on a matter of public concern about a public figure or official. Herbert v. Lando, 441 U.S. 153, 157 & n.1 (1979); see also Garrison v. Louisiana, 379 U.S. 64, 67 (1964); People v. Ryan, 806 P.2d 935, 941 (Colo. 1991); In re Gronowicz, 764 F.2d 983, 988 & n. 4 (3d Cir. 1985) (en banc). True, many legislatures have repealed criminal libel laws, or declined to reenact them after overbroad criminal libel statutes have been struck down. But thirteen states still have criminal libel laws,[4] and criminal libel prosecutions continue in most of those states;[5] indeed, after the Minnesota criminal libel statute was struck down as overbroad State v. Turner, 864 N.W.2d 204 (Minn. Ct. App. 2015), the Minnesota legislature reenacted a properly narrowed statute, Minn. Stat. Ann. § 609.765.
Nor is there any basis for treating properly crafted anti-libel injunctions as forbidden "prior restraints" while criminal libel laws impose mere "subsequent punishments." Both punish speakers only after they speak. Both deter speech before it is said. Indeed, anti-libel injunctions have less of a deterrent effect, because they forbid defendants only from saying particular things about the plaintiffs—criminal libel law threatens defendants with punishment for any false and defamatory statements about anyone.[6]
"The special vice of a prior restraint," the Court has held, "is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment." Pittsburgh Press, 413 U.S. at 390 (emphasis added); Auburn Police Union, 8 F.3d at 903 (quoting Pittsburgh Press on this point). After speech is conclusively judicially determined to be unprotected, a permanent injunction should be no more troubling on constitutional grounds than a civil or criminal penalty, because "the order will not have gone into effect before [the court's] final determination that the [speech was] unprotected," Pittsburgh Press, 413 U.S. at 390. "An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint." Auburn Police Union, 8 F.3d at 903. The Court's occasional dicta suggesting that all injunctions are prior restraints are therefore somewhat erroneous overgeneralizations.[7]
The Texas Supreme Court held that anti-libel injunctions were impermissible, partly because the injunctions would either be pointlessly narrow (if they are read as forbidding only the literal repetition of particular statements) or unconstitutionally vague, if read as forbidding paraphrased repetition as well. Kinney, 443 S.W.3d at 97; see also Chemerinsky, supra, at 171. But criminal libel laws are constitutional (assuming they include the constitutionally mandated mens rea requirements), even though they ban all statements that are knowingly false and defamatory. An injunction that bans the repetition, even paraphrased repetition, of particular statements would be less broad and less vague than those laws.
Professor Tribe also suggested that injunctions may especially deter speech because "they affirmatively singl[e] out the would-be disseminator." Lawrence H. Tribe, American Constitutional Law 1042 n.2 (2nd ed. 1988). But the same "affirmative[] singl[ing] out" can happen when a prosecutor, rather than filing a criminal libel charge, warns a speaker that continuing to make a particular statement would lead to such a charge. Given that such prosecutorial threats are not unconstitutional, see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71-72 (1963); Penthouse Int'l, Ltd. v. McAuliffe, 702 F.2d 925, 927-28 (11th Cir. 1993); State Cinema of Pittsfield, Inc. v. Ryan, 422 F.2d 1400, 1402 (1st Cir.1970), similarly targeted injunctions should not be, either.
Of course, none of this can justify overbroad injunctions that go beyond libelous statements. See, e.g., Baldinger v. Patisso, No. 3:10-cv-03122-PGS-DEA (D.N.J. July 10, 2012) (barring defendant from "Writing, printing, sending, publishing, emailing, posting, corresponding, or otherwise disseminating any statement, information, image or other data, whether in the form of fact, alleged fact, opinion or otherwise, regarding Plaintiff, any of Plaintiffs family members, Plaintiffs law firm or any person associated or affiliated therewith in any way and at any time"); Hutul v. Maher, No. 1:12-cv-01811, at 18 (N.D. Ill. Dec. 10, 2012) (similar); Khayyan LLC v. Santamaria, No. 15-cv-1910 (S.D.N.Y. July 2, 2015) (similar).
Likewise, preliminary injunctions and temporary restraining orders in libel cases are also unconstitutional, precisely because they are entered based on a mere showing of likelihood of success on the merits, and often without adequate discovery. See, e.g., Hill, 325 S.W.3d at 303; Advanced Training Sys., 352 N.W.2d at 11; Sid Dillon Chevrolet, 559 N.W.2d at 747; Metropolitan Opera Ass'n, Inc. v. Local 100, 239 F.3d 172, 176, 178 (2d Cir. 2001); Ardia, supra, at 39. But properly crafted permanent injunctions limited to speech found to be libelous should be constitutional.
[III.] Injunctions against libel ordinarily lack certain important procedural protections
Yet unless they are properly crafted, injunctions against libel may deny speakers certain procedural protections that even criminal libel law would provide. Before speakers are punished for speech under a criminal libel law,
- Their statements have to be found to have been false when the statements were made.
- This finding of falsehood has to be based on proof beyond a reasonable doubt.
- This finding must be made by a jury; that is a Sixth Amendment requirement if the criminal libel statute authorizes a punishment of more than six months in jail,[8] but also a state law requirement in all but one of the other states that authorize jail time for criminal libel (except Louisiana).[9]
- This finding must be made after a trial in which indigent defendants are entitled to court-appointed defense lawyers, who can argue that the statements were true, were opinion, were privileged, or were otherwise not libelous.
But when a speaker is prosecuted for criminal contempt for violating an anti-libel injunction, these protections are absent. Even if the defendant has a court-appointed lawyer (available if the defendant is facing the risk of jail) and the case is tried before a jury, the jury must only find beyond a reasonable doubt that the defendant said what the injunction forbade. The jury is not asked to decide beyond a reasonable doubt that the statement was false, and the court-appointed lawyer cannot argue to the jury about the statement's falsehood.
This is an especially serious problem for defendants who could not afford a lawyer when the injunction was first sought. Because injunction proceedings are civil cases, these defendants would not be entitled to a court-appointed lawyer. They might therefore have been unable to effectively argue that the statement was true, or privileged. If they lost at trial, they would find it very hard to effectively appeal. Indeed, they might have felt so hamstrung by the lack of a lawyer that they might not have contested the injunctions in the first place.[10] The injunctions may also have been entered far from where they lived, making it even harder for them to effectively litigate the case.[11] And when a defendant is absent, unrepresented, or practically unable to appeal, there will often be reason to doubt the accuracy of the factfinding at the initial civil injunction hearing. See, e.g., Baker v. Kuritzky, 95 F. Supp. 3d 52, 56-58 (D. Mass. 2015) (issuing injunction following default judgment banning defendant from stating, among other things, that the defendant is "dishonest," even though such allegations would often be seen as nonactionable opinion, see, e.g., Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 75 (4th Cir. 2016); Standing Comm. on Discipline v. Yagman, 55 F.3d 1430, 1440 (9th Cir. 1995)).
This might be an unavoidable reality as far as the civil justice system is concerned. Defendants who lack the resources to defend themselves may find themselves subject to civil judgments—though this is constrained, at least when it comes to lawsuits for damages, by the reluctance of most plaintiffs to spend money suing judgment-proof defendants.
But when a court issues an injunction against libel, it turns that reality into something with criminal law consequences: The defendant might be threatened with jail for repeating certain statements without ever having had his lawyer present a serious argument that the statements were not actually libelous. The Al-Suleimanys did get legal assistance for at least some time through their insurance company; but, as discussed above, the rules have to be the same for well-off defendants as well as poor ones.
Moreover, injunctions against false statements risk forbidding true statements as well. "Untrue statements may later become true; unprivileged statements may later become privileged." Kinney, 443 S.W.3d at 98 (giving this as a reason to reject antilibel injunctions). An injunction might, for instance, bar a self-styled consumer watchdog from repeating his allegations that a business has defrauded consumers, because the court concludes that the business has not indeed done so. But say the business does defraud a consumer after that: The injunction will still remain, and will still forbid the watchdog from repeating the specified statement.
True, a defendant could go to court to modify the injunction, see Balboa Island Inn, 156 P.3d at 353, but that is expensive and time-consuming. Or a defendant could ask the court to exercise its discretion not to initiate criminal contempt proceedings in light of the changed facts, see, e.g., Brandt v. Gooding, 636 F.3d 124, 135 (4th Cir. 2011); Cobell v. Norton, 231 F. Supp. 2d 315, 322 (D.D.C. 2002); Hake v. Carroll County, No. CIV. WDQ-13-1312, 2014 WL 2047448, at *2 (D. Md. May 15, 2014), but the judge may of course disagree that the facts have changed, or may think that in any event the defendant should have complied with the injunction. And, more generally, speakers should not have to "request the trial court's permission to speak truthfully in order to avoid being held in contempt," Kinney, 443 S.W.3d at 98.
In these respects, a criminal contempt prosecution for violating an anti-libel injunction is much like pre-Revolutionary libel prosecutions, such as in the notorious John Peter Zenger trial: The judge decides whether a statement is libelous, and then the criminal jury decides only whether the defendant had published the statement.[12] (While the El-Moslimanys' statements were found to be libelous by a jury, many libel injunction proceedings would happen solely before a judge, if only an injunction is sought; and even if there is a jury finding of libel, it would just be a finding by a preponderance of the evidence in a civil case.)
American law roundly rejected this approach for criminal libel, even when criminal libel prosecutions were common, and instead insisted that the criminal jury must determine whether the statement was indeed false. The law should likewise take the same approach to anti-libel injunctions, given that they are enforced through criminal prosecution. See Willing, 393 A.2d at 384 (Roberts, J., concurring) ("One of the underlying justifications for equity's traditional refusal to enjoin defamatory speech is that in equity all questions of fact are resolved by the trial court, rather than the jury. Thus, it deprives appellant of her right to a jury trial on the issue of the truth or falsity of her speech."); Organovo Holdings, Inc. v. Dimitrov, 162 A.2d 102, 124-25 (Del. Ct. Ch. 2017) (refusing to enjoin libel because of the "longstanding preference for juries addressing defamation claims"); see also, e.g., Marlin Firearms Co. v. Shields, 64 N.E. 163, 165 (N.Y. 1902) (taking the same view); Kidd v. Horry, 28 F. 773 (C.C. E.D. Pa. 1886) (Bradley, J., riding circuit) (likewise); State ex rel. Liversey v. Judge of Civil Dist. Ct., 34 La. Ann. 741, 745 (1982) (likewise).[13]
[IV.] Injunctions against libel can be made constitutional by making falsehood an element of the forbidden conduct, and by providing for jury trial for future contempt proceedings
There is, fortunately, a simple revision that can allow anti-libel injunctions to provide the procedural protections necessary for criminalizing speech. First, the injunction should not simply ban specific statements (e.g., "Defendant shall not state X, Y, or Z about the plaintiff") but should also expressly include the libelous nature of the statements as an element of the forbidden behavior (e.g., "Defendant shall not libelously state X, Y, or Z about the plaintiff"). Second, the injunction should expressly provide that any criminal contempt prosecutions should be conducted with a jury (unless the defendant waives the jury trial at the time of the criminal contempt hearing). See also Siegel, supra, at 729-30; Ardia, supra, at 63. Third, the injunction should provide that it cannot be enforced through the threat of jail for civil contempt; this is needed to enforce the principle that speakers can only be jailed for their speech if the full protections of the criminal law are provided. Cf. Kramer, 947 F.2d at 668-69 (describing the trial judge's use of civil contempt proceeding to jail the libel defendant until he wrote a confession and apology).
Because the revised injunction by its terms bans only libelous statements, the defendant cannot be punished unless the plaintiff or the prosecutor, in the criminal contempt proceeding, shows that the statement is libelous. (For extra clarity, the injunction might so state expressly.) This means:
- Before the defendant is criminally punished, the statement must be proved libelous beyond a reasonable doubt—which would require proof of falsehood and of the requisite mens rea on the defendant's part, and would allow the defendant to show that the statement was privileged.
- The defendant will have a court-appointed lawyer (at least if the defendant is facing the risk of jail time) who will know how to argue about whether the statement is indeed libelous.
- The finding that the statements were indeed false will have to be made by a criminal jury, if the defendant so wishes.
- If the facts have changed, and the statements are no longer libelous (for instance, because they are now true), then the defendant would be entitled to acquittal.
Nor would this violate the collateral bar rule: The defendants will not be challenging the injunctions at the criminal contempt trials, but rather arguing that the injunctions do not by their terms apply, because their statements are not actually libelous.
Of course, this would make criminal contempt hearings more time-consuming, and more expensive for plaintiffs (who would likely assist the prosecutor) and for the court system. But that is a necessary consequence of the procedures required to protect speech.
And the extra expense need not be great. While the findings in the civil case would of course not have collateral estoppel effect on the criminal case, the evidence and legal argument assembled for the civil case could easily be reused with a minimum of extra discovery and investigation.
To be sure, sometimes the civil case might have been done on the cheap and with only a minimum of evidence or briefing, for instance because it was a default judgment against an unrepresented defendant. But then it is all the more important that, despite the extra cost, there will be serious additional fact investigation and legal analysis done for the criminal contempt hearing.
Moreover, most of the time the criminal contempt trial will not be needed, because injunctions will continue to powerfully deter speakers. Only rare speakers would continue speaking after a court has found (albeit by a preponderance of the evidence) that their speech is false, and specifically ordered them—on pain of criminal punishment—to stop. Once the speakers know that a judge's attention has focused on them, and continuing to make the forbidden statements will be seen as undermine the judge's authority, they will likely get the message. (Criminal libel law would have the same effect, once a speaker gets a warning from a prosecutor.) But if a few speakers do think that they can prevail at a criminal contempt trial, they should be entitled to the customary protections provided by the criminal justice process.
There is one important procedural difference between criminal libel prosecutions and criminal contempt proceedings for violating anti-libel injunctions. In criminal libel prosecutions, a prosecutor exercises discretion about whether to prosecute. In criminal contempt proceedings, a judge would normally refer the case to the U.S. Attorney's office, but if that office declines to act, the judge may appoint a special prosecutor. Fed. R. Crim. P. 42(a)(2).
Still, the availability of prosecutorial discretion should not be seen as a necessary First Amendment protection, the way that jury trial, proof beyond a reasonable doubt, and the availability of counsel would be. Prosecutorial discretion is not necessarily good in free speech cases: Though it diminishes the likelihood that speech will be prosecuted, it also introduces an extra risk of viewpoint discrimination. Robert A. Leflar, The Social Utility of the Criminal Law of Defamation, 34 Tex. L. Rev. 984, 984-86 (1956). Enforcement of injunctions without a prosecutorial veto would decrease this risk. Prosecutorial discretion cannot save an overbroad law, see United States v. Stevens, 559 U.S. 460, 480 (2010); the absence of prosecutorial discretion should not invalidate a narrowly crafted injunction.
Conclusion
Injunctions against libel threaten defendants with criminal punishment. This makes them useful tools for stopping libel—indeed, necessary tools in many cases where the defendant is judgment-proof and thus cannot be stopped by threat of civil damages. Criminal libel law is constitutional; injunctions against specific statements that have been found libelous have a narrower chilling effect than criminal libel law does, and thus can be constitutional as well.
But unless properly written, such injunctions omit some important procedural protections that criminal libel law would provide—chiefly, a finding by a jury beyond a reasonable doubt that the statements are indeed libelous, following an adversary presentation in which poor speakers are entitled to court-appointed lawyers. The injunction in this case should be vacated, and the case remanded so the trial judge can enter an injunction that has the protections discussed in Part IV.
[1] See Owen M. Fiss, The Civil Rights Injunction 8, 35 (1978) (making this observation about injunctions generally).
[2] See Stephen R. Barnett, The Puzzle of Prior Restraint, 29 Stan. L. Rev. 539, 549 (1977) ("a court order proscribing publication of certain known information can be narrower and more precise than subsequent punishment").
[3] Unpublished opinions are treated as potentially persuasive precedent in Tennessee courts, see Watts v. Watts, 519 S.W.3d 572, 579 n.5 (2016), and Turner has indeed proved to be persuasive to later panels. See Loden v. Schmidt, No. M2014-01284-COA-R3-CV, 2015 WL 1881240, *8 (Tenn. Ct. App. 2015) (following Turner); Gider v. Hubbell, No. M2016–00032–COA–R3–JV, *9 (Tenn. Ct. App. 2017) (likewise).
[4] Idaho Code § 18-4801 to 18-4809; Kan. Stat. Ann. § 21-6103; La. Rev. Stat. Ann. § 14:47; Mich. Comp. Laws § 750.370; Minn. Stat. § 609.765; Mont. Code Ann. § 45-8-212; N.H. Rev. Stat. Ann. § 644:11; N.M. Stat. Ann. § 30-11-1; N.D. Cent. Code § 12.1-15-01; Okla. Stat. tit. 21 §§ 771-781; Utah Code Ann. § 76-9-404; Va. Code Ann. § 18.2-417; 14 V.I. Code § 1174; Wis. Stat. § 942.01.
[5] See, e.g., David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol'y 303, 313 (2009) (finding about four criminal libel prosecutions per year in Wisconsin from 2000 to 2007).
[6] See generally Barnett, supra, at 550-51 (noting this about injunctions generally); John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 Yale L.J. 409, 427, 429 (1983).
[7] Compare Alexander v. United States, 509 U.S. 544, 550 (1993) ("The term prior restraint is used 'to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.' Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.") (citations omitted), with Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 764 n.2 (1994) (concluding that certain content-neutral injunctions aren't prior restraints), Pittsburgh Press, 413 U.S. at 389-90 (concluding that an injunction barring the placement of want ads in sex-segregated columns was not a prior restraint), and Kingsley Books, 354 U.S. at 441-45 (finding that a content-based injunction was not a prior restraint).
[8] See Kan. Stat. Ann. § 21-6103; Minn. Stat. Ann. § 609.765; N.M. Stat. Ann. § 30-11-1; N.D. Cent. Code § 12.1-15-01; Wisc. Stat. Ann. §§ 939.51, 942.01.
[9] See, e.g., Idaho Crim. R. 23(b) (providing for right to jury trial for all misdemeanors); Mich. Ct. R. 6.401 (likewise); Mont. Const. art. II, § 7 (providing for jury in criminal libel cases); Okla. Const. art. II, § 22 (likewise); Utah Const. art. I, § 15. New Hampshire criminal libel law does not authorize jail time. N.H. Rev. Stat. Ann. §§ 644:11, 651:2(3).
[10] See, e.g., Baker v. Kuritzky, 95 F. Supp. 3d 52 (D. Mass. 2015) (entering anti-libel injunction following default judgment).
[11] See id. (case where lawsuit was brought in Massachusetts against poster who apparently lived in Georgia). Courts in the state where plaintiff resides will sometimes be found to have personal jurisdiction over the defendant, even if the defendant resides far away. See, e.g., Abiomed, Inc. v. Turnbull, 379 F. Supp. 2d 90, 95 (D. Mass. 2005) (finding that Massachusetts courts had jurisdiction over Ohio online speaker "because the defendant intentionally directed his postings toward … a Massachusetts company and to an audience of Massachusetts residents," and thus "intended harm to be felt in Massachusetts"); see also Shrader v. Biddinger, 633 F.3d 1235, 1245 (10th Cir. 2011) (finding no jurisdiction on the facts of the case, but approvingly pointing to an earlier case in which jurisdiction was found).
[12] See, e.g., David S. Ardia, Freedom of Speech, Defamation, and Injunctions, 55 Wm. & Mary L. Rev. 1, 23 (2013); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Colum. L. Rev. 91, 107 & n.93 (1984) (describing this history); David S. Bogen, The Origins of Freedom of Speech and Press, 42 Md. L. Rev. 429, 439 (1983) (likewise); Kramer, 947 F.2d at 672 n.15 (likewise); Montee v. Commonwealth, 26 Ky. 132, 151 (1830) (denouncing the older English approach—leaving the jury to only decide the fact of publication—as "odious" and "subversive of personal security"); People v. Croswell, 3 Johns. Cas. 337, 364-65 (N.Y. 1804) (Kent, J.) (likewise concluding that the jury was supposed to determine whether the defendant's publication was libelous, and not just whether the defendant had published it). Though Chancellor Kent's position in Croswell lost, because the court was equally divided, it quickly prevailed both in the New York Legislature, An Act Concerning Libels, ch. 90, 1805 N.Y. Sess. Laws 450, and in American law more broadly.
[13] Some may be skeptical about whether juries are indeed great protectors of free speech, in libel cases or in other cases. See, e.g., Jeffries, supra, 92 Yale L.J. at 428 (quoting Henry Paul Monaghan, First Amendment "Due Process," 83 Harv. L. Rev. 518, 528-29 (1970)). But American libel law has long treated jury decisionmaking as important, see supra p. 19; this historical judgment should not be lightly set aside. And it may be that the jury is the suspenders to the judge's belt: Jury decisionmaking coupled with judicial protection, such as independent appellate review, see, e.g., Bose Corp. v. Consumers Union, 466 U.S. 485, 499 (1984), and the availability of summary judgment, see, e.g., Foley v. WCCO Television, Inc., 449 N.W.2d 497, 504 (Minn. Ct. App. 1989), may provide better protection than either jury decisionmaking or judicial decisionmaking alone. See also Stephen A. Siegel, Injunctions for Defamation, Juries, and the Clarifying Lens of 1868, 56 Buff. L. Rev. 655, 729-30 (2008); Ardia, supra, at 64.
