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No Preliminary Injunctions Against Libel

Another court opinion reinforces this principle -- even if repetition of libelous statements can be forbidden after a trial on the merits at which the statements are found libelous, it can't be preliminarily enjoined before such a trial.

So holds yesterday's Georgia Court of Appeals decision in Hartman v. PIP-Group, LLC:

[The trial court] granted PIP's motion for injunctive relief, directing Hartman to remove podcasts and posts from certain websites and prohibiting Hartman from making oral or written statements about PIP that could be interpreted as defamatory or irreparably harmful....

[T]he trial court erred by requiring Hartman to remove his past speech from certain websites because a factfinder has not decided whether Hartman's statements are false or defamatory. 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." High Country Fashions v. Marlenna Fashions, 257 Ga. 267, 268 (1987) (citations and punctuation omitted).

For similar decisions, see, e.g., Hill v. Petrotech Resources Corp. (Ky. 2010): ("[A]n injunction against false, defamatory speech" is allowed "only upon a final judicial determination that the speech is false. … Until such determination of falsity, however, [the Kentucky Constitution's analog to the Free Speech Clause] is best interpreted as proscribing a preliminary restraint upon the alleged defamatory speech. … Neither a restraining order … nor a temporary injunction … may be used to enjoin allegedly defamatory speech."); Balboa Island Inn, Inc. v. Lemen (Cal. 2007) ("A preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims.").

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  • Martinned||

    Let me see if I got this straight by making an analogy with another constitutional right: Being locked up in pre-trial detention is fine, but a pre-trial/preliminary injunction against libel is not?

    Life is all about priorities I guess. (And those priorities may well be linked to preconceptions about the kinds of people who are likely to end up on the wrong end of both kinds of litigation.)

  • Eugene Volokh||

    It's an interesting contrast; but I very much doubt it has to do with relative affection for the various classes of defendants: The targets of preliminary injunctions in libel cases are often not very sympathetic characters (cranks, kooks, jilted lovers, and other obsessed folks), and the plaintiffs are usually rather more sympathetic. It's rare to see an attempt to get a preliminary injunction against some establishment organization, such as a mainstream newspaper, for instance.

  • Martinned||

    ...because a mainstream newspaper was the defendant in the most famous libel case of all. Cause & effect, chicken & egg...

  • Eugene Volokh||

    Libel damages cases are often litigated against mainstream newspapers, partly because they have the money to make pure damages claims potentially viable. But libel injunction cases generally target kooks and extremists -- see, e.g., Near v. Minnesota and Tory v. Cochran -- or, occasionally, apparent extortionists, see Brandreth v. Lance, the first and leading 1800s state court on this.

  • nonzenze||

    Well, most of us believe in the right to a prompt bail hearing before a neutral arbiter.

  • Martinned||

    Well yes, me too. But that doesn't cure the fact that you're being detained without having been found guilty of anything, both before you get to that bail hearing and possibly after.

    And in the US you can't even receive damages if you're acquitted after pre-trial detention. (Cf. the recent UK Supreme Court case of R (Hallam) v. Secretary of State for Justice, which is also a complete mess, but mostly because a variety of courts tried to fix the inherent injustice of locking someone up for months or even years and then not even giving them a penny of compensation when they're acquitted.) But that's a conversation for another day...

  • Purple Martin||

    In a word, yes.

  • notFrye||

    I recently ran across a case. I'm not sure that the holding relates directly to injunctive relief or if it is still good law, but perhaps Western Union might have benefited from an injunction?
    "It is libelous for a telegraph company to transmit the following message: 'Slippery Sam, Your name is pants. [Signed] Many Republicans.' " Peterson v. Western Union, 67 Northwestern Reporter, 646 (Minn. Sup. Ct. June 4, 1896)

  • Stephen Lathrop||

    Volokh here advocates for a legal regime which was sensible and worked fine prior to the internet. The difference then was that to publish anything, you generally had to get the cooperation of someone in some corner of the publishing business—someone with self-interest, typically, who wasn't judgment proof, and who wasn't crazy— and who would be liable for real damages if what was published was later adjudicated to be libel. That largely made a non-problem of the kind of cases Volokh describes now. The nut jobs and loons couldn't get past the publishing managers, so the law rarely had to get involved.

    Today, it's different. Section 230 opens the door to liability-free publishing. Anyone—no matter how crazy and irresponsible—can do it. And what hasn't changed is that libel can still do genuine damage, from which the victims may not be made whole.

    These changed conditions ought to be met by changed laws. But Volokh, for reasons which remain murky, argues again and again for continuation of a legal regime built around outmoded circumstances and inappropriate precedents. Volokh would be wise to reconsider.

  • mad_kalak||

    This is a comment, or a variation of this one, that you make every time this thread topic comes up. I'm sure he's considered, and come down on the other side of the trade-off. Because there is a trade-off. If filing a lawsuit and getting a judge to tell you to shut up (prior to a trial) is all it took to shut you up, with a trial are months away (and lawyers are costly) you'd end up having the wealthy and connected able to stifle speech to a degree that perhaps you'd perhaps not feel comfortable with.

  • Stephen Lathrop||

    mad_kalak, what you describe is not what I advocate. I advocate reviving the pre-Section 230 regime, the era from which EV has been mining his precedents. Unless you are quite young, you should remember what that was like. The rich shutting up their opponents with pre-speech lawsuits was not a notable feature. Perhaps you can think of some reason why it would be different now, and your hypothetical trade-off would come newly into play. If so, I think you should explain.

  • mad_kalak||

    Nobody advocates for unintended consequences and/or the downside of the trade-offs. Let me ask, a few questions then, because I am only vaguely familiar with the items you're citing.

    If the the rich shutting up their opponents with lawsuits wasn't a problem in the pre-Section 230 regime, did this regime exist before the internet? If it did exist before the internet, then the rich shutting down free speech of large publishers (the kinds that provided the filtering you mention) wouldn't have happened because of the publishers having deep pockets. What I worry about, and what you need to address, is the possibility (very real) that the rich like Soros or the Koch brothers would file a libel lawsuit against a YouTube internet commentator like Tim Pool or Dave Ruben and prevent him from speaking with a preliminary injunction.

  • David Nieporent||

    What I worry about, and what you need to address, is the possibility (very real) that the rich like Soros or the Koch brothers would file a libel lawsuit against a YouTube internet commentator like Tim Pool or Dave Ruben and prevent him from speaking with a preliminary injunction.

    Under Lathrop's favored non-230 world, there would be no Youtube Internet commentators. Youtube as we know it could not exist, because it would face massive liability if Tim Pool or Dave Ruben (I have no idea who they are) posted something that angered (e.g.) Soros or the Koch brothers.

    Lathrop favors a world in which Youtube and all other Internet platforms serve as gatekeepers; you can only speak on them if Youtube explicitly approves of your speech in advance.

  • Stephen Lathrop||

    mad_kalak, do Tim Pool and Dave Ruben habitually practice libel on You Tube? If not, it's a non-problem. They can self-publish. They will be able readily and inexpensively to buy insurance against libel judgments—which is what publishers large and small did during the pre-internet era. Ink-on-paper publishers probably still do.

    Not that the threat you mention is realistic. I was at that time the publisher of an aggressive (small) weekly newspaper, doing investigative reporting. We were threatened once or twice a year with libel suits, by folks who didn't like our reporting, or who had business interests which our stories inconvenienced. I didn't even bother with the insurance, because I had made it a point to learn what libel was, and make sure we didn't publish it. So when disgruntled folks showed up with threats, I just told them to go to a lawyer. The lawyers told the threateners they didn't have a case, and that was that, every time.

    Don't publish libel, and you really don't have to worry about libel suits. The 1A sees to that, and it really works. And since that time, 1A protection has been further bolstered by anti-SLAPP laws.

  • David Nieporent||

    mad_kalak, what you describe is not what I advocate.

    Right, what Lathrop advocates is even _worse_ than what you describe, kalak, At least under your idea, someone could publish something _once_ before being shut down. Lathrop advocates a regime in which people would be prevented from ever publishing things in the first place because of the threat of massive government fines against the printing presses of the day.

    The rich shutting up their opponents with pre-speech lawsuits was not a notable feature.

    No, the rich shutting up their opponents with threats of pre-speech lawsuits was.

  • mad_kalak||

    Well, thanks for the clarification then. Whew.

  • Stephen Lathrop||

    Nieporent, this is baloney. The ability to publish a libel once before being sued—not shut down, by the way, there isn't any "shut down" in libel law—was, and is, sacrosanct. Look at EV's precedents.

    Also, no "massive government fines" for civil libel ever existed. Are you sure you're a lawyer?


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