The Volokh Conspiracy

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Free Speech

District Court in Ninth Circuit Issues Anti-Libel Injunction, but Stresses Need to Keep It Narrow


In Weitsman v. Levesque, decided Friday, Judge Janis Lynn Sammartino (S.D. Cal.) awarded $950,000 in compensatory damages in a libel case, plus $50,000 in punitive damages (both based on a default judgment, since defendant didn't appear). It seems quite unlikely that plaintiff will be able to recover much of those damages from the seemingly unemployed defendant.

Judge Sammartino also allowed an injunction against libel, following the rule that most courts have adopted in recent decades (see my Anti-Libel Injunctions article), and that some Ninth Circuit district courts have likewise adopted (though with some dissent); but she also took care to keep the injunction suitably narrow, in a way that I think is worth highlighting:

In arguing that prior restraint is not an issue, Plaintiffs rely heavily on Lothschuetz v. Carpenter, a [1990] Sixth Circuit opinion [allowing permanent injunctions in libel cases]. Plaintiffs cite no New York cases to support their argument. {Although this action was transferred to this District from New York, the Court continues to apply New York substantive law to Plaintiffs' state law claims, including Plaintiffs' damages requests. See, e.g., Ravelo Monegro v. Rosa (9th Cir. 2000). Plaintiffs' Supplemental Briefs only assess the issue of compensatory and punitive damages under New York law. Nor did any Party assert during the November 5, 2020 hearing a belief that any other law should apply to the compensatory or punitive damages issues before the Court.}

However, based on this Court's own review of relevant authorities—some of which are cited by Plaintiffs elsewhere in their briefs—it does appear that New York courts have approved permanent injunctions against future libelous statements where the libel is "part of 'a sustained campaign,'" Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73, 141 (2019), and where the libelous statements injure a business interest or other property right. [Citations omitted.] … Defendant has been making these statements for more than four years, since October 2016, despite the initiation of this litigation and the issuance of an arrest warrant. Accordingly, it is clear that the False Statements are part of a sustained campaign to injure Plaintiffs' interests, including their business interests. Therefore, the Court agrees with Plaintiffs that, on the facts of this case, a permanent injunction would not be an impermissible prior restraint on First Amendment-protected speech….

However, the Court finds that a number of modifications to Plaintiffs' Proposed Order are necessary in order for the requested relief to comply with the First Amendment. See Carroll v. President & Comm'rs of Princess Anne (1968) ("An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order…. In other words, the order must be tailored as precisely as possible to the exact needs of the case.")….

[A.] [N]ot all of the statements identified in the Proposed Order as False Statements are alleged in the [Complaint]. Based on the Court's careful review of the [Complaint] and its exhibits, the Court believes the following statements from the Proposed Order have been determined to be libelous and properly may be enjoined:

  1. Plaintiff is a "murderer";
  2. Plaintiff conspired, assisted, helped, or aided in the murder of Michele Harris;
  3. Plaintiff assisted, helped, or aided Calvin Harris or any other person in disposing of Michele Harris's body;
  4. Plaintiff was paid money by Calvin Harris or other person in connection with murder or disappearance of Michele Harris;
  5. Plaintiff assisted, helped or aided Calvin Harris or any other person from being found guilty, convicted, arrested, detained, liable, responsible, and/or suspected of murdering Michele Harris;
  6. Plaintiff's equipment was used to dispose of Michele Harris' body;
  7. Plaintiff was involved in the disappearance of Michele Harris;
  8. Plaintiff sold or sells illegal drugs;
  9. Plaintiff is or has been involved with Joaquín "El Chapo" Guzmán;
  10. Plaintiff engaged or engages in money laundering; …
  1. Plaintiff has raped one or more people…

Accordingly, the following statements, which do not appear in the [Complaint], were not adjudged libelous in the Court's February 14, 2020 Order:

  1. Plaintiff bribes or have bribed one or more government officials;
  2. Plaintiff is or has been involved with covering up the death of Michael Burke;
  3. Plaintiff has employed or does employ mostly pedophiles;
  4. Plaintiff fooled the Environmental Protection Agency ("EPA") by removing two feet of contaminated soil at the Jamestown Yard….

Accordingly, to enjoin these statements might well be an unconstitutional prior restraint, and the Court therefore declines to extend the injunction to these statements.

[B.] Moreover, the Court is concerned that enjoining variations of, depictions of, or statements that "convey the message" of the False Statements, or statements that "partial[ly] refer[]" to the False Statements, is a slippery slope that would potentially result in an unconstitutional prior restraint. For example, Plaintiffs provide the exemplary statement: "'Did the #VicePresident of @UpstateShred admit that he is tracking my IP address? #Binghamton @nyspolice @WBNG12News #CrimeNews #CalHarris." However, none of the False Statements allege that Plaintiffs track Defendant's Internet Protocol address. Thus, the Court does not agree with Plaintiffs that this statement falls within the scope of the properly enjoined statements.

And, while the Court is disturbed by Defendant's posting of "images or photos of Weitsman and/or his family, including his wife and their minor child," the Court does not believe the posting of personal images alone falls within the scope of the False Statements such that this act is properly subject to the requested injunctive relief. See, e.g., Brummer v. Wey (N.Y. App. Div. 2018) (refusing to enjoin speech that, "as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence against plaintiff"). With a heavy heart, the Court must conclude that it cannot extend the injunction to statements other than the False Statements themselves….

The ruling stresses another important limitation, but that's worth a separate post.