The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Beyond the First Amendment: Anti-Libel Injunctions and Prosecutorial Discretion

Even if injunctions against libel don't violate the First Amendment, should state courts still reject them on state separation of powers principles?


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

I've argued that criminal contempt prosecutions for violating anti-libel injunctions are similar to criminal libel prosecutions. But they are missing one important feature of most prosecutions—the normal prosecutor.

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 prosecutor's office, but if that office declines to act, the judge may appoint a special prosecutor. And in some states, the litigants could initiate the criminal contempt prosecution them­selves, or move for contempt and ask for the court to appoint their lawyers as the prosecutors. [In the federal system, the judge may not appoint the plaintiff's lawyer as prosecutor, Young v. United States ex rel. Vuitton et Fils SA, 481 U.S. 787 (1987), which may make it hard to find a lawyer willing to take the task. But that is a principle of federal contempt procedure, not a constitutional mandate.]

Indeed, in states that still have criminal libel laws, the injunction's cutting out of the prosecutor is especially vivid. Why, after all, would a person who is being libeled seek an anti-libel injunction in that state? Why not just ask the prosecutor to threaten the defendant with a criminal libel prosecution? After all, an injunction only works because the target is worried about the threat of a criminal contempt prosecution; why wouldn't a prosecutor's threat of a criminal libel prosecution work as well?

Presumably the defamed person would opt for spending the time and money to get an injunction precisely because the prosecutor is not inclined to act. Maybe prosecuting libels is a low prosecutorial priority, compared to violent crimes, property crimes, or drug crimes. Or maybe the prosecutor thinks the criminal libel law is archaic, and that people shouldn't be jailed merely for lying about people. Or maybe the prosecutor wants to prosecute only the most egregious libels (such as the ones that most threaten reputation), and this libel isn't one. The prosecutor is thus using prosecutorial discretion to choose not to prosecute a particular kind of crime. And the injunction bypasses that prosecutorial decision.

The question for judges, then, is whether they see prosecutorial discretion as an advantage or a disadvantage in such cases.

Prosecutorial discretion is sometimes touted as an important protector for liberty: Before a person goes to jail for something, the theory goes, all three branches must agree—the legislature must criminalize the action, the executive must prosecute, and the judiciary must convict. In the words of then-Judge Kavanaugh,

The Executive's broad prosecutorial discretion … illustrate[s] a key point of the Constitution's separation of powers. One of the greatest unilateral powers a President possesses … is the power to protect individual liberty by essentially under-enforcing federal statutes regulating private behavior … . The Framers saw the separation of the power to prosecute from the power to legislate as essential to preserving individual liberty.

Judge Kavanaugh was speaking of prosecutorial discretion as a check on the legislative power, but it could equally be seen as a check on the judicial power. Indeed, such a check may be especially necessary to rein in criminal contempt prosecutions, in which judges might be unduly skewed by the sense that the violation of an injunction is a personal affront to their own authority. Justice Scalia's concurrence in Young v. United States ex rel. Vuitton et Fils SA, for instance, argued that federal contempt prosecutions must always be initiated by the Executive Branch, partly because Justice Scalia saw a threat to liberty in "judges' in effect making the laws, prosecuting their violation, and sitting in judgment of those prosecutions."

On the other hand, prosecutorial discretion is sometimes seen as unduly favoring those victims who have the prosecutors' ear—indeed, one criticism of criminal libel laws has been that they are disproportionately used to punish speech critical of political officials and law enforcement. And people sometimes fault prosecutors for being not attentive enough to particular crimes that are seen as too hard (or too unglamorous) to prosecute; that, for instance, was part of the criticism of prosecutors in domestic violence cases, which led many states to enact statutes specifically authorizing injunctions against continued domestic violence.

More broadly, injunctions are available in many other contexts where torts are also crimes. The occasional assertion that "equity will not enjoin the commission of a crime" means simply that equity "would not enjoin violation of … criminal law as such," but would only enjoin acts that harmed the particular plaintiff in some legally cognizable way. Injunctions against trespass are issued without concern that this will undermine prosecutorial discretion not to prosecute trespasses as crimes; likewise with injunctions against copyright infringement, even though willful copyright infringement for commercial gain is also criminal.

And perhaps the availability of criminal contempt proceedings in such cases, even without the opportunity for prosecutorial discretion, might be especially justified by the need to vindicate a particular victim's interest. The Third Circuit, for instance, has taken the view—expressed, to be sure, as to administrative enforcement proceedings rater than as to criminal contempt of court prosecutions—that "the doctrine of prosecutorial discretion[] should be limited to those civil cases which, like criminal prosecutions, involve the vindication of societal or governmental interest, rather than the protection of individual rights."

I don't think that the availability of prosecutorial discretion should be seen as a necessary First Amendment protection that renders invalid injunctions that cut out such discretion. Indeed, prosecutorial discretion may introduce an extra risk of viewpoint discrimination, and enforcement of injunctions without a prosecutorial veto would decrease this risk.

Judges in injunction cases often write opinions explaining why they exercise their discretion a particular way, which constrains their discretion in some measure; prosecutors don't. Judges' decisions not to issue injunctions are reviewable on appeal (even if under the relatively deferential abuse-of-discretion standard); prosecutors' decisions not to prosecute are generally not reviewable. Prosecutorial discretion cannot save an overbroad law. The absence of prosecutorial discretion should not invalidate a narrowly crafted injunction.

This having been said, though, courts might still choose to consider whether separation of powers concerns should counsel against injunctions that evade prosecutorial discretion, especially in those states where criminal libel statutes exist. The Court has spoken of its "cautious approach to equitable powers," especially when the powers involve "substantial expansion of past practice"; state courts may choose to take a similar approach. Such caution may be reason to avoid an end-run around prosecutorial judgment, especially with a remedy that has historically been frowned on—which makes anti-libel injunctions different from, for instance, anti-trespass injunctions—and in the absence of specific legislative authorization (which makes anti-libel injunctions different from, say, anti-harassment or anti-stalking injunctions issued pursuant to a specific statute).

[You might also read my earlier posts on the subject,

Or you can read the whole article, which is forthcoming in the University of Pennsylvania Law Review, in PDF.]