Non-First-Amendment Objections to Anti-Libel Injunctions

A new section for the brief I blogged about last week, ultimately arguing that an injunction is improper in Sindi v. El-Moslimany -- but not because of the First Amendment.


In last week's post on Why Properly Crafted Injunctions Against Libel Are Constitutional, I put up a draft amicus brief that I plan to file tomorrow (on my own behalf) in the First Circuit, and asked for reader feedback. I got plenty of feedback, which I much appreciate; and some comments led me to add some further material, which ultimately cuts in favor of rejecting the injunction. (I had at first suggested remanding to the trial court to modify the injunction.) I still think that properly crafted anti-libel injunctions are consistent with the First Amendment, for reasons I mention in that post; but here are some extra thoughts that I'm adding to the brief—and I'd love to have comments on these, too:

Properly crafted anti-libel injunctions thus do not violate the First Amendment. If a legislature chose to authorize them, that would be constitutional. And if a state has a criminal libel statute (say, New Hampshire), then anti-libel injunctions in that state would simply be narrower, less chilling versions of criminal libel law, see supra p. 24—though, unlike with criminal libel law, their enforcement would not be left to the discretion of prosecutors.

On the other hand, consider a state in which the legislature has repealed its criminal libel statute (say, Maine, see 17 Me. Rev. Stat. Ann. § 2201 (repealed 1975)). There, if a court allows anti-libel injunctions, it would be criminalizing behavior that the state legislature has deliberately decriminalized. A broad injunction, such as "defendant shall not make any libelous statements against plaintiff," would thus likely be improper. Whether a court can properly issue a narrow injunction, such as "defendant shall not libelously state that plaintiff embezzled money from her employer," is a harder question. The answer may depend on whether the court understands the repeal of the criminal libel law as reflecting a decision that libel should not lead to criminal punishment, or just a decision that criminal libel laws have too broad a chilling effect (in which case narrower injunctions that focus on specific statements and thus chill less speech might not be inconsistent with that decision).

The matter may be harder still in a state such as Massachusetts. Massachusetts has historically recognized the common-law offense of criminal libel, see Mass. Const. pt. II, art. VI, § 6 (adopting the common law generally); Commonwealth v. Marsh, Thach. Cr. Cas. 441 (Mass. Bos. Mun. Ct. 1836) (concluding that the common law of criminal libel was thus adopted), and the legislature has never abrogated that offense. But there seems to be no evidence of continuing prosecutions for criminal libel; the most recent published case dealing with a criminal libel prosecution is Commonwealth v. Canter, 269 Mass. 359, 168 N.E. 790 (1929). Moreover, Ashton v. Kentucky, 384 U.S. 195, 198 (1966), concluded that, when no state case has redefined common-law criminal libel in terms that are clear and consistent with First Amendment rules, "the elements of the crime are so indefinite and uncertain" that the common-law rule is unconstitutional. Yet Massachusetts courts could also in principle revive the common-law crime just by redefining it consistently with New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its progeny.

Whether to allow anti-libel injunctions is thus a difficult judgment about state law and the relationship between judge-made law and legislation. But it is a judgment about state institutions, which should generally be made by state courts. There is no federal law of criminal libel. United States v. Hudson & Goodwin, 11 U.S. 32 (1812). There is no federal law expressly authorizing anti-libel injunctions. The only justification for an injunction that would threaten the defendants in this case with criminal punishment for libel stems from the federal courts' power to adjudicate certain cases arising under state law. Federal courts should thus be cautious about using this limited power as a means of criminalizing behavior that state institutions may choose not to criminalize.

Indeed, under the Erie doctrine, federal courts deciding state libel cases should look to state law to determine whether injunctions are allowed. "[S]tate remedies are available in federal diversity actions." Titan Holdings Syndicate v. City of Keene, 898 F.2d 265, 273 (1st Cir. 1990). Likewise, if state law chooses not to allow injunctions, federal courts should not allow them, either: "Erie doctrine requires courts to apply state substantive law to a request for permanent injunctive relief in diversity cases." Lord & Taylor, LLC v. White Flint, LP, 780 F.3d 211 (4th Cir. 2015). "Allowing different remedies in state law cases heard in federal courts on pendent jurisdiction would undermine the 'twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.'" LaShawn A. by Moore v. Barry, 144 F.3d 847, 853 (D.C. Cir. 1998) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)). (The matter is uncertain in some circuits, see, e.g., Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 341 n.7 (5th Cir. 2015) (so noting), but this Circuit's view appears to be settled by Titan Holdings, 898 F.2d at 273.)

And Massachusetts law forbids anti-libel injunctions. "[E]ven allegedly false and defamatory statements are protected from prior injunctive restraint by the First Amendment and art. 16 [of the Massachusetts Constitution." Nyer v. Munoz-Mendoza, 385 Mass. 184, 188, 430 N.E.2d 1214, 1217 (Mass. 1985). What Massachusetts courts are forbidden to do in Massachusetts libel cases, federal courts must be forbidden to do as well.

To be sure, it is possible that the El-Moslimanys may not have raised the Erie objection to the injunction in this case. But it may be prudent for this Court to consider the matter sua sponte. For the reasons given above, this is the very sort of case in which federal courts should be deferring to state courts' judgment, rather than developing new remedies that state courts appear to have rejected.


This Court should avoid categorically rejecting anti-libel injunctions on First Amendment grounds. 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.

This Court should also avoid categorically endorsing such injunctions. Unless properly written, anti-libel 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.

But this Court also need not reach the First Amendment question, because under Erie this Court should follow Massachusetts law, which forbids anti-libel injunctions.

NEXT: My "The Hill" Op Ed on the Bill of Rights and the Travel Ban

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  1. There, if a court allows anti-libel injunctions, it would be criminalizing behavior that the state legislature has deliberately decriminalized.
    In your earlier post the logic depended on the contemnor being liable for criminal contempt for disobeying an injunction. Some states do that (Hawaii for example), and some have decriminalized libel, but how big is the intersection?

  2. Along those same lines, I thought from your earlier draft that the analogy to criminal libel was because those laws show that under the First Amendment, libel can be criminal with certain protections in place. And you were therefore mirroring those protections — but the “crime” was violating the injunction, not criminalizing libel. Even in states that have de-criminalized libel, presumably they still permit criminal contempt for violations of injunctions, even when the enjoined activity is not otherwise criminal.

  3. Might it not be wise to ask the federal court to certify the issue to Massachusetts Supreme Judicial Court to see if a properly drawn injunction consistent with the First Amendment – per your earlier analysis – would be allowed under Massachusetts law?

    Obviously, the First Circuit does not need the Massachusetts courts to analyze the First Amendment issues (and could adopt your analysis of the First Amendment issues), but the question you now identify is a Massachusetts law issue. Seems somewhat unfair to plaintiff to say that if he was in Massachusetts court, he could get a ruling, but in federal court, he cannot get a ruling because the federal courts should just not reach the issue out of respect for the state courts.

    Federal courts do certify issues a lot sua sponte so the fact that neither party asked for it (which I assume given what you wrote re Erie) should not preclude it.

    1. I thought about that, but Nyer seems pretty firm on the subject, and it’s from 1985, so it’s not like it’s archaic. If the Massachusetts high court wants to revisit the matter at some point, that may well be good — but I don’t think that certification is called for if the state law is clear and there’s no specific reason to anticipate that the court seems likely to change its mind.

      1. Yup – agreed. Skimmed over that cite and it unequivocally cites the Massachusetts constitution along with the First Amendment. So, it would actually be kind of disrespectful to the state to certify.

  4. I would suggest that this federalism stance helps avoid the danger of a national criminal-defamation law, which a broad regime of federal anti-defamation injunctions would probably lead to, in practice if not in theory.

    So the federalist approach *is* related to the First Amendment – it goes back to the attempt in 1798 to federalize some of the laws of seditious libel.

    If the federal courts agree to largely defer to the states and limit the use of anti-defamation injunctions, unless the state courts would issue them in a similar case, then we can avoid nationalizing criminal defamation and avoid the risks of 1798.

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