The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Ford v. Jurgens, by Judge Adam M. Conrad of the North Carolina Superior Court / Business Court branch (decided May 6, 2020, but just posted on Westlaw), a good illustration of courts' sound reluctance to issue preliminary injunctions—before a full trial on the merits—against alleged defamation, even though permanent injunctions after such a trial are now fairly broadly accepted:
This case began as a derivative action on behalf of a nonprofit real estate investors association, known as TREIA. The plaintiffs (John Ford and Christopher Kisgen) accuse two board members (Carl Jurgens and Kathie Russell) of misappropriating nearly $300,000 from the association….
Defendants now ask the Court for a … preliminary injunction that would require Ford and Kisgen to remove the "Save TREIA" website and Facebook page and enjoin them from disseminating "any false and/or defamatory information" about Defendants….
To begin, courts are deeply skeptical of requests to enjoin speech and expression. Indeed, temporary injunctions "are classic examples of prior restraints," and "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Any such prior restraint is "presumptively unconstitutional."
Defendants have not overcome this presumption. Their brief does not mention the First Amendment, much less attempt to show why this is the unusual and extraordinary case that might support a preliminary restraint on speech.
During the hearing, counsel for Defendants made two arguments. The first was that they were not in fact seeking a prior restraint because Ford and Kisgen had already made defamatory statements. The Court disagrees. Defendants seek to enjoin ongoing and future speech by Ford and Kisgen before a final judgment of liability. If granted, that would be a prior restraint.
Second, counsel argued that defamatory statements may be enjoined because they are not protected by the First Amendment. Courts have repeatedly rejected that argument. It is widely accepted "that, absent extraordinary circumstances, injunctions should not ordinarily issue in defamation cases." Our Supreme Court has likewise described this as "the general rule."
There are sound reasons for this. Many courts have recognized the difficulty in designing a restraint on unlawful speech that does not also chill protected speech. "It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable." That is why "a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand." As the United States Supreme Court has stressed,
"a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for a time."
The danger here is obvious. Defendants do not seek to enjoin specific defamatory statements. They ask the Court to censor the entire "Save TREIA" website and Facebook page, including any nondefamatory statements made there. They also ask the Court to restrain any "false and/or defamatory" statements made "by any means" in the future. These restrictions would directly restrain some lawful speech and would certainly chill other protected speech, forcing Ford and Kisgen to choose between erring on the side of silence and facing charges of contempt. Defendants have given no justification for imposing such sweeping, overbroad restraints on speech and expression. The Court concludes that doing so would offend the First Amendment….