The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In Judge B. Lynn Winmill's opinion in Endobiogenics, Inc. v. Chahine (D. Idaho Mar. 30, 2020), Endobiogenics alleged (among other things) that Chahine, a physician, was libeling Endobiogenics to other physicians. Chahine didn't appear, and therefore a default judgment was entered against him. Endobiogenics sought $75,000 in damages on the defamation claim, but the court concluded that it hadn't sufficiently shown damages: "Endobiogenics includes no evidentiary support, beyond bare allegations in the Complaint, to support the damages allegation." Endobiogenics also sought an injunction, and here's how the court analyzed the matter:
First, Endobiogenics asks the Court to enjoin Chahine from "making any further defamatory statements to any past, current, or potential customer of Endobiogenics concerning the EMA System." Endobiogenic alleges that, Chahine falsely told its customers and professional licensing boards that Endobiogenics' enforcement of its contract is "perfectly illegal," "endanger[s] the health or worse the lives of patients…," puts "the health of my patients at risk," and is "not only ethically but also criminally reprehensible." Future like statements, could, if not enjoined, cause Endobiogenics to suffer irreparable injury. In addition, the remedies available at law are insufficient to compensate for the harm. For these reasons, and the reasons previously stated in the Court's order granting default judgment, the Court will issue an injunction as to this effect.
Second, Endobiogenics asks the Court to enjoin Chahine "from making any defamatory statement concerning any Endobiogenics employee, manager, or founders, including but not limited to Dr. Lapraz, to any person or organization." For the reasons stated immediately above, the Court will issue an injunction to this effect but will limit the scope of the injunction to any past, current, or potential customer of Endobiogenics concerning the EMA System.
Third, Endobiogenics asks the Court to direct Chahine to "remove all references to Endobiogenics and its employees, managers, or founders, and the EMA System, from any publication or media source over which Chahine has control, including but not limited to, websites, social media, printed materials, and any submissions currently on file with the Paris Board of Medicine." The Court declines to issue an injunction to this broad effect.
Chahine has a right to speech that is critical of Endobiogenics. The Court may only curtail or enjoin speech that is defamatory or libelous, and thus, unlawful. Endobiogenics has not provided the Court with any specific quoted examples of the references at issue. In the default judgment setting, without findings of fact or the support of a developed evidentiary record, the Court declines to issue any injunctive relief to this preclusive effect….
This result is clearly correct to refuse to order Chahine to remove even nonlibelous speech about Endobiogenics. But as to the injunction against libelous statements (even just libelous statements to "past, current, or potentical customer[s] of Endobiogenics concerning the EMA system"), the decision just highlights how uncertain Ninth Circuit caselaw is on this point:
[A.] San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1239 (9th Cir. 1997), upheld an anti-libel injunction, as did the unpublished Ferguson v. Waid Decision last year.
[B.] On the other hand, In re Dan Farr Prods., 874 F.3d 590, 596 n.8 (9th Cir. 2017), noted that "'[s]ubsequent civil or criminal proceedings, rather than prior restraints, ordinarily are the appropriate sanction for calculated defamation or other misdeeds in the First Amendment context'" (quoting CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (Blackmun, J., in chambers)), but without discussing San Antonio Community Hospital, which seemed to take the opposite view.
[C.] District Courts in the Ninth Circuit are divided on the subject, e.g. (just from my research on 2016 and 2017 cases):
- Andreas Carlsson Prod. AB v. Barnes, No. CV 15-6049 DMG (AJWx), 2016 WL 11499656, *5 (C.D. Cal. Oct. 11, 2016), concludes that "'Injunctions against any speech, even libel, constitute prior restraints' and are therefore 'presumptively unconstitutional.';
- New Show Studios LLC v. Needle, No. 2:14-cv-01250-CAS (MRWx), 2016 WL 7017214, *9 (C.D. Cal. Dec. 1, 2016), concludes that"injunction[s] against defamatory statements" are only allowed in "exceptional circumstances."
- Vachani v. Yakovlev, No. 15-cv-04296-LB, 2016 WL 7406434, *7 (N.D. Cal. Dec. 22, 2016), concludes that "an injunction [to remove defamatory allegations and not to repeat them] is permissible."
- List Industries, Inc. v. List, No. 2:17-CV-2159 JCM (CWH), 2017 WL 3749593, *3 n.1 (D. Nev. Aug. 30, 2017), cites various opinions but "takes no position" on the dispute.
- aPriori Technologies, Inc. v. Broquard, No. 2:16-cv-09561, 2017 WL 11319740 (C.D. Cal. Nov. 22, 2017), enjoins defendant from "Making any statement that refers to both aPriori or its officers, customers, investors, or affiliates, and Mr. Frank Iacovelli with respect to his alleged acts of child endangerment, child abuse or child molestation."
This can be pretty confusing, as aPriori shows. Broquard's Informal Brief argued that the injunction violated his "First Amendment Right to Freedom of Speech," and Broquard and his codefendant had made the argument below. But, given Broquard's lack of legal expertise, the Informal Brief did not offer any real legal analysis. The Ninth Circuit's disposition therefore said only that, "Broquard's contentions that the injunction violates his First Amendment rights [and other rights] are unpersuasive. We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal." Perhaps the District Court in aPriori was right in issuing the injunction—but it did so without sufficient guidance from the Ninth Court, and Broquard likewise lacked a clear statement of the legal rule around which he could have structured his argument.
Finally, note that the Endobiogenics injunction categorically banned "any defamatory statement" rather than just specific statements that had already been found to be defamatory. Most courts that have expressly considered the validity of such catchall injunctions have rejected them, as too "broad and general." 50 Hill v. Stubson, 420 P.3d 732, 744 n.7 (Wyo. 2018); see Metro. Opera Ass'n. v. Local 100, 239 F.3d 172, 176-78 (2d Cir. 2001); Karnaby v. McKenzie, 54 Conn. L. Rptr. 71 (Conn. Super. Ct. 2012); Royal Oaks Holding Co. v. Ready, No. C4-02-267, 2002 WL 31302015, at *4 (Minn. Ct. App. Oct. 7, 2002); D'Ambrosio v. D'Ambrosio, 610 S.E.2d 876, 886 (Va. Ct. App. 2005); see also Gold & Diamond Buyers, LLC v. Friedlich, No. 11-21843, 2011 WL 13322791, at *3 (S.D. Fla. Sept. 26, 2011); cf. Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 311 n.5 (Ky. 2010) (condemning "wide-sweeping language" in anti-libel injunctions, apparently including the prohibition of "publishing … [any defamatory] public comments pertaining in any way to the Plaintifs" (alteration in original)). But see In re Marriage of Olson, 850 P.2d 527, 532 (Wash. Ct. App. 1993) (upholding such a catchall injunction, apparently because of the special interest in protecting the parties' children—the injunction had been entered as a result of a contentious divorce, and barred the ex-husband from defaming his ex-wife). Yet many other courts, like the Endobiogenics court, have issued such injunctions, especially as parts of default judgments, without any real discussion of the matter.
I have much more about all this in my Anti-Libel Injunctions article, which just came out in the University of Pennsylvania Law Review a few months ago.