The First Amendment and the Catchall Permanent Injunction

I'm continuing to serialize my forthcoming Penn Law Review article on Anti-Libel Injunctions.

[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection and The First Amendment and Criminal Libel Law; or you can read the whole article in PDF.]

[A.] The Catchall Injunction as a Narrower Criminal Libel Provision

Criminal libel laws, then, are constitutional. But one can certainly be worried about their potential chilling effect. If they are enforced, after all, any time anyone writes anything potentially derogatory about anyone else, the writer should worry about the risk of prosecution. Though they generally require the prosecutor to prove that the speaker made a knowingly or recklessly false statement of fact, some speakers might worry that the prosecutor and the factfinder will misjudge this; and even the threat of an unsuccessful prosecution can deter many speakers. This may help explain why they have largely fallen out of favor.

Let's imagine, then, that a legislature tries to come up with a narrower statute: Before anyone (call him Don) can be prosecuted for criminal libel, it concludes, the alleged victim (call her Paula) should first go to court and get a judicial decision that Don has already said something libelous about her. Only once Paula has that decision in hand, and Don is aware of this (indeed, he may have been in court to object to any such decision), could any future libelous statements by Don about Paula lead to a libel prosecution. This would be a less chilling variant of criminal libel law—a one-free-bite-at-the-apple version—and would thus be constitutional, as criminal libel law itself is.

And this hypothetical law, it turns out, is very much like one variety of permanent injunction—what we might call a "catchall permanent injunction." Here's one sample out of many:

Defendants … are hereby restrained and ordered to remove, and no longer disseminate, any scandalous or defamatory statements … to include posting of defamatory articles on any … media whatsoever ….

Indeed, the rules of one Ohio court categorically call for such injunctions in divorce cases:

In all cases, upon the filing of the initial Complaint for divorce, annulment or legal separation, both spouses shall be restrained from … [u]sing the Internet … for the purpose of posting … electronically written words, images and/or videos which threaten, harass or defame and/or slander the other spouse ….

A much older Pennsylvania statute, enacted in 1937 but still occasionally used today, provides that all injunctions arising out of a labor dispute must order

That complainant and/or the employer and their or either of their agents or employes shall be enjoined from any and all acts or threats of violence, intimidation, coercion, molestation, libel or slander against the respondents or organizations engaged in the labor dispute.

To be sure, these injunctions are imperfectly worded—the prohibition shouldn't cover "scandalous" statements or "harass[ing]" posts or "molestation." But if limited to prohibiting future libelous statements (i.e., statements that are knowingly false, defamatory, and unprivileged), these injunctions would essentially mirror the hypothetical only-after-a-finding-of-past-libel criminal libel statute that I described above; they just operate through the means of threat of punishment for criminal contempt rather than through the threat of punishment for criminal libel.

Let's compare criminal libel laws with these catchall permanent injunctions:

Criminal libel law	Catchall permanent injunction
Deters derogatory speech about everyone	Deters derogatory speech only about the plaintiff
Deters derogatory speech at any time	Deters derogatory speech only after the injunction is entered
Speech punished only if found to be false beyond a reasonable doubt	Same
… at a criminal trial where an indigent defendant would have a court-appointed lawyer	Same
… and where finding is by jury	Same, if judge or legislature provides that any criminal contempt trial will be before jury

Note that the last three rows all stem from the injunction by its terms prohibiting only libelous statements. Because that's an element of the injunction, the libelousness of any future statements by Don must be proved at the criminal contempt trial. Because that's a criminal trial, there must be proof beyond a reasonable doubt, and a court-appointed lawyer.

The initial finding that Don had libeled Paula is only made by a preponderance of the evidence, and with no entitlement to a lawyer, because the entry of the injunction (as opposed to its enforcement) is a civil proceeding. But that finding doesn't bind the jury at the criminal contempt hearing—that jury must itself separately find that Don's post-injunction statements (or his post-injunction repetitions of his pre-injunction statements) were libelous. The injunction only opens the door to the criminal courthouse; it doesn't itself determine in any binding way that certain specific statements can't be repeated.

The one possible difference between the criminal libel trial and the criminal contempt trial in a catchall injunction case is that a jury must be provided in most criminal cases—including criminal libel cases—if the maximum statutory authorized sentence is over 6 months (or some lower threshold set by state law), but a jury must be provided in criminal contempt cases only if the actual sentence is over 6 months. In practice, all but one of the existing criminal libel statutes that allow for jail time also provide for a right to trial by jury.

But this difference could be eliminated if the judge simply makes clear that any criminal contempt trial for violating this particular injunction will be before a jury, at least unless the prosecutor and the defense both agree to waive a jury. Indeed, this could be provided by statute or by rule, as it is, for instance, under the Norris-LaGuardia Act for certain labor injunctions.

Jailing someone for civil contempt as a coercive measure—generally until he removes posts that the court has found to be false and defamatory—would, I think, violate the First Amendment, precisely because it would lack the protections provided by the criminal justice process. But criminal contempt sanctions would be as permissible as criminal libel prosecutions.

This having been said, catchall permanent injunctions have not enjoyed much success in appellate courts. Several courts have expressly struck down such injunctions, in part because they are so "broad and general." I have found only one case expressly upholding such a catchall injunction against a First Amendment challenge, and there the decision was heavily influenced by the interest in protecting the parties' children—the injunction had been entered as a result of contentious divorce, and barred the ex-husband from defaming his ex-wife.

Yet many trial courts do issue such injunctions, without discussing the First Amendment. Moreover, these are close analogs of the modern "anti-harassment" injunctions, in which a finding of "harassment"—often involving speech—leads to an injunction against all repetition of such harassment, rather than just repetition of specific conduct or speech that had been found to be harassing. Many courts have upheld such catchall anti-harassment injunctions. Whether or not those decisions are correct as to "harassment" (given the vagueness and potential breadth of that term), their logic would apply even more forcefully to prohibitions of defamation, which is more clearly established as falling within a First Amendment exception than harassment is.

[B.] The Prior Restraint Objection

Nor is there any basis for treating hybrid 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 that ban repeating specific statements deter less speech than criminal libel law does: They forbid defendants only from saying particular things about the plaintiffs, while criminal libel law threatens defendants with punishment for any false and defamatory statements about anyone.

"The special vice of a prior restraint is that communication will be suppressed … before an adequate determination that it is unprotected by the First Amendment." 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." "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."

Indeed, the Court has held that courts may properly enjoin the continued distribution of material that had been found to be obscene or to be unprotected commercial speech. Other courts have held the same as to other unprotected speech. The Court's occasional dicta suggesting that all injunctions are prior restraints are therefore somewhat erroneous overgeneralizations.

[C.] The "Adequate Remedy at Law" Objection

Some courts have said that the mere theoretical availability of a libel damages claim makes it a legally adequate remedy, even if it's practically empty. But that seems more to assume the conclusion—injunctions should not be allowed because damages are the legally exclusive remedy (whether or not they are practically adequate)—than to justify it.

When injunctions are available, they should be equally available whether or not damages are also practically available (for instance, even when the libel defendants do have assets or insurance). There can't be a rule under which "poor people … have their speech enjoined, while the rich are allowed to speak so long as they pay damages": "Conditioning the right of free speech upon the monetary worth of an individual is inconsistent" with constitutional principles. Yet while this reasoning has sometimes been used to reject injunctions against both poor and rich defendants, it can also be a reason to allow properly crafted injunctions as to both.

[D.] The "Equity Will Not Enjoin a Libel" Objection

Many past cases do say that "equity will not enjoin a libel," but that was a descriptive claim, describing a rule that no longer applies in many states. And even in the past it had not been an entirely accurate description: Historically, some courts had been willing to enjoin libels if the defendant's libels affected plaintiff's business. Some have been willing to enjoin libels if the defendant was engaging in a pattern of repeated defamatory speech (which would be the very scenario where an injunction would be most useful). And some decisions, rendered when the states still had separate law and equity courts, said that equity will not enjoin a libel only in the sense that any injunctions would have to be ancillary to damages claims filed on the law side.

[E.] The Vagueness Objection

Unlike specific injunctions, catchall injunctions leave future prosecutors and juries to decide which statements are false and defamatory, and thus leave speakers to guess what those prosecutors and juries would do. But in this respect they are no more vague than criminal libel statutes; and, as Part I explained, criminal libel statutes are indeed not unconstitutionally vague.

[F.] The Singling Out Objection

Nor should injunctions be rejected on the grounds that they especially deter speech by "affirmatively singling out the would-be disseminator." The same effect would flow from a prosecutor accurately warning a speaker that continuing to make a particular statement would lead to a criminal libel charge. Such prosecutorial threats are not unconstitutional; similarly targeted injunctions should not be, either.

[Footnote: See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 71–72 (1963); State Cinema of Pittsfield, Inc. v. Ryan, 422 F.2d 1400, 1402 (1st Cir.1970). Bantam Books did bar a scheme through which a state commission tried to pressure booksellers to stop selling books that the commission found "objectionable," by threatening the booksellers with obscenity prosecutions. But the Court expressly said that "law enforcement officers" are free to engage in "informal contacts with persons suspected of violating valid laws" "with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them." A prosecutor in a state where libel is a crime is thus free to warn a speaker that, if the speaker continues saying things that the prosecutor believes to be false and defamatory, the prosecutor will file charges—just as prosecutors are free to do the same as to other crimes.]

[G.] The "No Obey-the-Law Injunctions" Objection

A catchall anti-libel injunction, forbidding defendant from making any libelous statements about plaintiff, essentially orders the defendant to comply with libel law. But while courts sometimes say that "[i]njunctions that broadly order the enjoined party simply to obey the law … are generally impermissible," there is an important limitation on that principle: "[W]hen one has been found to have committed acts in violation of a law he may be restrained from committing other related unlawful acts." Catchall injunctions are generally issued precisely when a defendant has engaged in a campaign of defaming plaintiff, and they restrain only future defamation of the same plaintiff—a continuation of the same campaign of "related [libelous] acts."

To be sure, some obey-the-law injunctions in other areas have also been condemned as being too vague, and as not giving defendants enough notice of what is forbidden. That makes sense when an injunction categorically bans a defendant from, say, "violat[ing] the Clean Water Act" or "violating First Amendment rights." Those legal rules may be well-defined enough for civil liability, but not for criminal punishment for contempt of court. But, for reasons given above [in the criminal libel discussion], orders that ban knowingly false and defamatory statements—like criminal libel statutes that ban such statements—are sufficiently clear.

[Though I argue here that catchall anti-libel injunctions needn't violate the First Amendment, I think that, like criminal libel laws, they may be ill-advised, because they may chill too much speech; I'll ultimately argue that what I call hybrid injunctions are better, but that will come a few posts from now.]