The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[You might also read my earlier posts on the subject,
- Anti-Libel Injunctions and the Criminal Libel Connection
- The First Amendment and Criminal Libel Law
- The First Amendment and the Catchall Permanent Injunction
- The First Amendment and the Specific Preliminary Injunction
- How Specific Anti-Libel Injunctions Underprotect Speech
- The First Amendment and the Hybrid Permanent Injunction
Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]
Some courts allow injunctions only as to speech on matters of "private concern"; Professor Ardia has recently argued the same. Such a rule would at least diminish the risk of criminal punishment (via contempt) for speech on public matters. And indeed speech on matters of supposedly private concern is already treated differently by libel law: Such speech can lead to punitive and presumed damages even without a showing of "actual malice"; it's also possible that states may require defendants in private-concern cases to prove their statements were true rather than requiring plaintiffs to prove falsity.
But unfortunately, despite decades of trying, courts have done a poor job of defining what constitutes a matter of public concern. (Nat Stern discussed this in detail in a 2000 article, and I have as well in a more recent piece.)
And that is so in the very class of cases where injunctions against libel seem most common: claims that businesses or professionals have defrauded or mistreated consumers. The Ninth Circuit, for instance, has held that a jet ski seller's supposed refusal to give a refund for an allegedly defective product was a matter of public concern; it also held the same for a claim that a mobile home park operator charged unduly high rents. Other courts have taken a similar view. But others disagree.
The same is so for another common category of libels that often lead to injunctions: accusations of crime. The Ninth Circuit, for instance, has held that, "[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern," in a case where a solo blogger accused a court-appointed trustee of tax fraud in a bankruptcy reorganization of a company. The California Court of Appeal likewise held that including plaintiff's name in a leaflet containing a list of alleged rapists was speech on a matter of public concern. The New Jersey Supreme Court, on the other hand, held that a person's online allegation that his uncle had molested him when the person was a child was a matter of purely "private concern" for libel law purposes; the Iowa Supreme Court held likewise in a similar case.
Likewise, consider three cases dealing with allegations of substance abuse. Ayala v. Washington held that a letter to an airline alleging that one of its pilots—the defendant's ex-boyfriend—was a marijuana user was merely on a subject of "private concern." Starrett v. Wadley, on the other hand, held that an allegation that a supervisor at a tax assessor's office had an alcohol problem was a matter of "public concern," because it revealed improper behavior by a government official. And Veilleux v. NBC expressly rejected liability for true reports of drug use by a truck driver under the disclosure of private facts tort, concluding that the named driver's "drug test results were of legitimate public concern."
What's more, many cases seem to suggest that the public/private concern line should turn on "context, form, and content," without much elaboration of how those factors should be evaluated. Thus, for instance, Dun & Bradstreet v. Greenmoss Builders concluded that an allegation in a credit report that a small business had declared bankruptcy was not a matter of public concern, partly because the report was sent only to a handful of subscribers. Perhaps, then, the same report posted to the world at large, even just on a gripe site, might be on a matter of public concern—or would it be? What if the business were larger, so that more creditors, employees, and consumers might be affected by the supposed bankruptcy? It's not clear how courts are to draw this line.
Similarly, Connick v. Myers concluded that questions about whether prosecutors had lost confidence in the D.A. and his top assistants were on not on a matter of public concern. Surely, though, if a newspaper had published a story about the same matter, few people would be surprised; the underlying topic is indeed a public matter, since it bears on the conduct of a powerful government department and the competence of important government officials.
Rather, the Court's focus seemed to be on the speakers being employees rather than outsiders, and on their motivation apparently stemming from their own personal interests. Perhaps, then, the same statements posted by someone else, with a different motive, might be seen as matters of public concern. But again it's not obvious how courts draw such distinctions.
In some situations, courts might be able to confidently say that speech is just a matter of private concern—allegations of promiscuity, noncriminal adultery, and the like might qualify. But in many cases, deciding whether particular accusations are on a matter of private concern may be quite hard, not just because the law is unsettled but because the vagueness of the underlying test is likely to continue leading to uncertainty.