Free Speech

More Criminalization: "Harassment" and Stop-Talking-About-Plaintiff Injunctions

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I'm continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I'm talking about how "cheap speech" has led to injunctions ordering defendants to stop talking about plaintiffs. Recall that the article is mostly descriptive, focusing on what's happening, for better or worse.

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Some courts are also issuing broad injunctions against "harassment" or "stalking," often barring defendants from posting anything at all about plaintiffs. And these orders are often just responses to defendants' repeatedly criticizing plaintiffs, even in the absence of defamation or true threats.

Let me offer three examples:

The poet: Linda Ellis wrote a poem called The Dash, about life and death. Many people found the poem moving, and posted it on their own webpages — only to draw letters from Ellis threatening copyright infringement lawsuits, and demanding payments of thousands of dollars as settlements. People began to criticize her in discussions on a site run by Matthew Chan, which had been set up to criticize allegedly excessive demands by copyright owners; there were eventually thousands of posts condemning her. Ellis then sued Chan and got an "antistalking" injunction, which ordered Chan to remove "all posts relating to Ms. Ellis" from the site — not just allegedly defamatory posts, not just allegedly threatening posts, but all posts.

The police officer: Patrick Neptune believed police officer Philip Lanoue cut him off in traffic, gave him an unjustifiable ticket, and then informed Neptune's parents of the incident. Neptune responded by criticizing police officer Philip Lanoue on the site copblock.org, sending several letters to public officials, and sending three letters to Lanoue's home address. Lanoue got a court order barring Neptune from, among other things, "posting anything on the Internet regarding the officer."

The ex-girlfriend and successful video game developer: Zoë Quinn, a prominent video game developer, had a short romantic relationship with Eron Gjoni, also a video game programmer. After the relationship ended, Gjoni posted a webpage that condemned what he saw as Quinn's emotional mistreatment of him. This led to a torrent of online criticism of Quinn by others, including some threats of violence, partly because Gjoni's post was interpreted as suggesting that some of the favorable reviews of Quinn's games were written by reviewers who were themselves romantically involved with Quinn. That in turn led to an ongoing debate between Quinn's supporters and opponents — the Gamergate controversy, which is too long and complicated to detail here. But what is significant for our purposes is that Quinn got a court order forbidding Gjoni from "post[ing] any further information about [Quinn] or her personal life online or . . . encourag[ing] 'hate mobs.'"

These are just a few examples out of many more that I can offer. Many appellate courts have rejected such orders as unconstitutional, though others have upheld them. I discuss elsewhere why I think the injunctions do violate the First Amendment.

Here, I just want to speculate about why courts are so willing to enter such extraordinarily broad orders. And the reason, I suspect, is connected to the democratized, cheap speech provided by the Internet.

Repeated criticism, even if it consists of opinions and accurate factual statements, is undoubtedly disquieting. It can damage reputation, often using claims that a judge may view as unfair, even though not libelous. That is especially so if the criticism becomes prominent in Google searches for one's name, and defines one to strangers or casual acquaintances. And if the criticism gets more of a direct readership, for instance if it gets redistributed via Twitter or Facebook, it can lead to threats against the person being criticized, or even physical attacks.

Such criticism can be perceived as intruding on privacy by making its targets feel that they have become the object of others' curiosity or amusement. The law does not generally treat that as actionable invasion of privacy (outside the narrow zone of the disclosure of private facts), but I suspect many people perceive it as an intrusion, and some judges may agree. The criticism, especially if repeated and seemingly obsessive, may make the targets feel vaguely menaced, even in the absence of constitutionally unprotected true threats of violence.

Now all of this, by itself, cannot save the injunctions from being invalidated on First Amendment grounds, and I think almost no judges would enjoin such speech in a newspaper. Yet for some reason, some judges are willing to enjoin such speech by individuals. Why?

I suspect this flows from three related reasons, both again connected to cheap speech and the democratization caused by the Internet.

[1.] Precisely because newspapers cost money to publish, and try to make money from subscribers or advertisers, they tend to be accountable to their readers and tend to publish what their readers want, in the style the readers want. That a newspaper is printing something itself indicates the likely value of the speech. Even a judge who found the speech loathsome or pointless might have thought twice about imposing his own views in preference to the views of editors and readers. Likewise, if an established political advocacy group thought some speech worth saying, that was evidence that the speech had value to public debate.

[2.] Newspaper speech can have many motives, but the most plausible ones tend to be public-regarding — a desire to inform the public, or to spread a particular perspective about the world. Perhaps a newspaper is just pandering to readers' tastes, but even that means that they want to entertain or inform readers about something that many readers care about. It's possible that newspaper writers are just trying to wreak private vengeance, or are irrationally obsessed. But it seems unlikely, especially since such motivations (at least if transparent enough) are likely to lead to market pushback from readers.

And the same is likely true for speech by advocacy groups: whatever a judge might think of their ideology, it seems likely that the speech was motivated by ideology. Even a judge who suspects that base motives are at play (e.g., that a rich publisher is trying to get revenge against a politician or business leader who had frustrated the publisher's business plans) might be reluctant to enjoin such mainstream speech based on speculation about motive.

But once individuals can easily speak, without having to persuade any intermediary about the worth of their speech, judges are likely to see much more speech that seems pointless and ill-motivated. Motive turns out to be very important under many harassment or stalking statutes, which condemn speech that is said with "the intent to annoy" or with "no legitimate purpose." Indeed, some courts have taken the view, in government employee speech cases, that speech motivated by purely personal motives is to be treated as on a matter of "private concern," even when its content would suggest that it's on a matter of public concern.

Of course, such individual speakers would likely take a different view of the value of the speech, and of their own motives. I suspect that they think they really do have valuable things to say, and that their motives are to inform the public.

Indeed, none of these cases, with the possible exception of Van Valkenburg v. Gjoni, involve speech that would likely have been seen as "purely on a matter of private concern" if it had been published in a newspaper or had been distributed by a political advocacy group. And even Gjoni's speech, tied as it is to broader discussions of romantic relationships, alleged emotional abuse, and the like, may well be seen as on a matter of public concern — compare, for instance, Bonome v. Kaysen, where a woman's published book that discussed the sexual details of a past relationship was seen as being enough on a matter of public concern to defeat a disclosure of private facts lawsuit. Explaining how one feels, and who made one feel that way, is an important part of telling the story of one's life, whether in a memoir or on a blog post.

If I'm right, then some judges just aren't trusting individual speakers in the newly democratized mass communications system to define what is worth talking about, and to talk about it without being second-guessed about their motivations. Media organizations and political organizations are given latitude to say even things that judges may view as unfair or cruel. But private speakers are sometimes given less latitude — and the judges think that threatening criminal punishment for violating an injunction is the necessary means for stopping such speech.

[3.] When a judge sees an individual defendant's speech as a campaign of defamation — and indeed thinks that the defendant is obsessed with criticizing the plaintiff, perhaps to the point of irrationality — trying to forbid just defamatory statements may seem futile. The judge may suspect that any future criticism by the defendant of the plaintiff, or perhaps any speech at all about the plaintiff, would just degenerate into further defamation, and a prophylactic prohibition is needed to keep that from happening.

Indeed, remedies law sometimes allows injunctions that go further than the initial violation, even injunctions that forbid behavior that, absent the initial misdeed, would not be tortious. First Amendment law, I think, does not allow such preventative measures when they ban otherwise protected speech based on its content. But judges who view an individual defendant as a dangerous kook may react in ways that they wouldn't when dealing with an established media outlet.

As I mentioned, I think that such a view is wrong, and that speech outside the traditional First Amendment exceptions (speech that isn't, for instance, libel or true threats) should remain free even if judges think it's worthless or ill-intentioned, without regard to the speaker's identity. But I think these injunctions come about because judges see that everyone can now speak the way that established media and political organization have long spoken — and judges often don't like it.

NEXT: Today in Supreme Court History: February 19, 1942

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  1. “Now all of this, by itself, cannot save the injunctions from being invalidated on First Amendment grounds, and I think almost no judges would enjoin such speech in a newspaper. Yet for some reason, some judges are willing to enjoin such speech by individuals. Why?”

    Have you considered,

    3) Some judges have fallen for the argument that “the Press” in the 1st amendment really is newspapers, not everybody’s use of the printing press.

    It would also explain why they’re more solicitous of newspapers’ 1st amendment claims, than similar claims by private individuals.

    1. I wouldn’t say courts are more solicitous of newspapers’ 1A claims, it’s just that previously there really only were newspaper claims (and weren’t individual complaints).

      No one cared if someone ran through the neighborhood yelling ROGER SMITH IS A WANKER!

      It was a one-time deal, the message instantly dissipated, and it was only heard by the few neighbors in the ‘hood.

      Now with internets, the same person can tell millions of people, the message can quickly and easily be transmitted to millions more, and nothing is ever deleted from the internets, so of course we’ll start to see more private cases.

      1. I think it is also a perception that newspapers and other media are more responsible than some nutcase posting on the internet about his neighbor’s habits.

        1. I think it is also a delusion that newspapers and other media are more responsible than some nutcase posting on the internet about his neighbor’s habits.

          FTFY

          1. Disaffected clingers and grievance-consumed conservative misfits are among my favorite culture war casualties.

            1. By using the word “clingers” you imagine that you have actually said something of value, when actually you signal to everyone just the opposite, worthless tripe.

              1. Clinger: An obsolete person who clings to old-timey religion, old-timey bigotry, and guns, exhibiting general aversion to modernity, reason, science, legitimate education, inclusiveness, progress, and the American mainstream.

              2. This is an example of why I think RALV’s posts are actually an attempt at satire or parody rather than serious discourse.

                His (her, their?) posts generally seem to attempt to promote progressive viewpoints. However, the posts almost always rely on very “non-progressive” use of stereotypes and insults and, particularly as of late (perhaps due to increasing dementia?), make no substantive arguments.

                It’s very difficult to believe that anyone with an IQ over the high 80s would post such self-contradictory rants except in an attempt at satire. It is of course possible that RALV’s IQ is not at or above the high 80s, but his style of writing suggests that’s not the case.

                Perhaps RALV got frustrated because The Onion repeatedly rejected his submissions as being too sophomoric and RALV has instead decided to avail himself of this platform to refine his skills. Sadly, his skills seem to be declining rather than improving.

          2. Given that a non-insignificant portion of news coverage is simply regurgitating what is on social media, I’d say that’s correct.

            See, for example, Wired’s coverage of CNN turning a tweet from a nurse about people gasping for air saying “It isn’t real!” as they die from covid into a national news story, apparently without any vetting.

    2. More likely, it’s that newspapers actually raise (and competently argue) 1A arguments, whereas the vast majority of individuals do not. And thus judges look at the cases involving individuals within a framework of personal interaction, restraining orders, etc., rather than a framework of press freedom. The former types of cases are frequently overseen by family court, domestic relations judges, judges who have never handled a constitutional argument in their lives.

  2. The Founding Fathers almost banned injunctions in general as being part of the royal authority that they had revolted against.

    I think that injunctions in general should be banned as unconstitutional.

    1. Your first sentence contradicts your second.

      But your first sentence also seems an unsupported assertion, so the whole thing is a mess.

      1. How does the first sentence contradict the second?

        1. If the Founding Fathers *almost* banned injunctions, presumably they did not. That implies injunctions were not unconstitutional just after the country’s founding. I think the contradiction is inferred by not seeing any amendment that would have changed that.

          1. Sorry, there is no real contradiction in saying the Founding Fathers almost (but didn’t ) ban injunctions and Dr Ed stating that in his opinion they ought to be unconstitutional.

            See Dr Ed did not say he thought injunctions are unconstitutional. Had he said that, there would be a contradiction, but that’s not what he said.

            1. The word “abortion” neither appears in the text of the US Constitution nor in any of its Amendments.

              1. The word “oxygen” neither appears in the text of the US Constitution nor in any of its Amendments. Does that make breathing unconstitutional? Does it mean that you don’t have a right to breath? No, it means nothing at all.

                1. I was making a possibly too obscure reference to the concept of a “penumbra” of Constitutional rights underlying both _Griswald_ and _Roe_.

                  Furthermore, I would argue that the “right to breath” is part of the right to “life” guaranteed by the Fifth and 14th Amendments.

            2. Should be banned as unconstitutional is saying they’re unconstitutional.

              1. And his first sentence is still unsupported.

                1. It’s Dr. Ed. He completely fabricated it. Remember that they didn’t have 911 in 1995.

                  1. *I* had 911 in 1992 because I used it back then.

                    For what it is worth, 911 was established way back in 1968.
                    See: https://www.nena.org/page/911overviewfacts

                    1. Um, I was mocking one of your earlier Dr Edisms.

                2. Well, we can start with Eldridge Gerry who said that “a tribunal without juries would be a Star Chamber in civil cases” — he did not want judges to have this kind of power in civil cases precisely because of what the Star Chamber had become.

                  Memory is that he wasn’t the only one who felt this way, but here is a citation.

                  1. Oh yeah, clearly germane to banning injunctions.

                    Keep scrambling.

              2. “Should be banned as unconstitutional is saying they’re unconstitutional.”

                Not necessarily. For example, many people believe that the death penalty should be banned as unconstitutional, even though the founding fathers didn’t ban it.

                I agree that the first sentence is unsupported.

            3. He didn’t say “I think the constitution ought to be amended to make them unconstitutional.” He said that he thought they should be banned as unconstitutional, which means he does think they are unconstitutional.

          2. Michael, remember that there *were* Anti-Federalists…

    2. Oh oh … David Behar is going to like this …

    3. “The judicial power shall extend to all cases, in law and equity”

      That’s in Article III of the Constitution.

      “Equity” refers to the power of the Chancery courts in England, for which injunctions were one major form of remedy.

      So, no, they did not want to ban injunctions. Nor were they the prerogative of the king, they were administered by the king’s judges.

  3. I like to think the courts will adopt a long-arm approach to individual or private harassment/stalking cases.

    In the physical world, the bully usually has some sort of actual physical attribute (size, strength, weapon, etc.) to intimidate their victim, and so the victim does require some sort of court protection (e.g. ROs).

    But in the internets, everybody basically has the same assets available and the “victim” can easily use their own assets to attack the bully (e.g. doxing, Consequence Culture (not Cancel!), bad reviews of their business, etc.).

    Look at the Game Stop thing the past 12 days or so.

    The internets gang can be ruthless.

  4. While I understand EV’s argument, I am sympathetic with Ms. Ellis. She had her copyright consistently infringed and had little recourse save repeated costly litigation with little hope of compensation. If she had not registered her poem,she would not even receive attorney’s fees. Mr Chan conducted a harassment campaign against her.
    Perhaps she asked for an overly broad injunction, but unless persons whose copyright is infringed have a practical recourse, the copyright is effectively useless.

    1. Mr Chan conducted a harassment campaign against her.

      Mr. Chan didn’t even communicate with her, let alone harass her.

      Perhaps she asked for an overly broad injunction, but unless persons whose copyright is infringed have a practical recourse, the copyright is effectively useless.

      You’re mixing up two things. Chan wasn’t accused of copyright infringement at all, so the breadth of the injunction she sought against him was irrelevant to her recourse for infringement.

  5. As I mentioned, I think that such a view is wrong, and that speech outside the traditional First Amendment exceptions (speech that isn’t, for instance, libel or true threats) should remain free even if judges think it’s worthless or ill-intentioned, without regard to the speaker’s identity.

    I have a suggestion, Professor Volokh. Review your article, and in each instance where you say, “speech,” but are in fact talking about publicly accessible online expression, substitute instead the appropriate form of, “publish.” Calling publishing, “speech,” is an apparent source of confusion among your readers, who are inclined to think anyway that speech and publishing were mentioned redundantly in the text of the 1A. To practice a habit of noticing which is which might even prove as helpful for you as it would for your readers.

    But I think these injunctions come about because judges see that everyone can now speak the way that established media and political organization have long spoken — and judges often don’t like it.

    I would have said it differently. It is because “everyone,” can now publish (not, “speak”) in ways that established media and political organizations have almost never published, that judges are intervening. Earlier in the OP, you seemed to have alluded to that difference yourself. It is useful to keep it in mind, as I noted above.

    The practice to indulge careless habits of ordinary speech, while engaged in the customarily more-disciplined activity of publishing has not been widespread during our lifetimes. Judges who act from the bench to limit harm that unfamiliar practice causes are not responding out of pique, and still less are they indulging elitist tendencies, as you seem to imply. On the one hand, those judges act out of their own innate social conservatism, and on the other hand they express a social conservatism which is widespread among citizens across all political persuasions.

    More generally, the founders knew what they were doing when they addressed speech and the press separately in the 1A. They are separate phenomena with separate manifestations. They are separate rights with separate social implications. The founders well knew—having built a revolution on the principle—that publishing has by far the greater potential for social disruption, for good or ill. With public misunderstanding of those facts widespread and still increasing, it is not helpful to encourage yet more misunderstanding by ignoring those important and historically enduring distinctions.

    1. You make a distinction between “speech” and “publishing”.

      This leaves me wondering where would you draw the line? It seems to me that they are orthogonal concepts and that “publishing”, in the broad sense, is simply the act of expanding th audience for your “speech” beyond yourself.

      In your view, which of the following cross the line from “speech” to “publishing” and why:

      1: A person yelling in a public park expressing their views on government policy.

      2: A person yelling in a public park expressing their views on the actions of an individual “on-duty” police officer.

      3: A person yelling in a public park expressing their views on the actions of an individual that never acts as an agent of the government.

      1A-3A: Same as 1-3 but the person uses a megaphone.

      1B-3B: Same as 1-3 but the person uses a CB radio to expand the scope of the speech.

      1C-3C: Same as 1-3 but the person expresses their views via a hand written sign they carry around the park.

      1D-3D: Same as 1-3 but the person expresses their views via a single sign printed on their laser printer and that they carry around the park (if there is a “publisher” in this situation – is the person the “publisher” or is Brother or HP the “publisher”?).

      1E-3E: Same as 1-3 but the person expresses their views by printing up 100 copies of a sign on their laser printer and posting them on public community bulletin boards around the city.

      1F-3F: Same as 1-3 but the person expresses their views by printing up 10,000 copies of a sign expressing their veiwpoint on their laser printer and distributes them to like minded people who march around displaying them in multiple public parks (if there is a publisher here, is it the individual carrying each sign or is it the person who created the content and printed copies?).

      1G-3G: Same as 1-3 but the person expresses their views by having a printer print up 100,000 copies of their viewpoints and mails these to “Resident” at every residential address in the city.

      1H-3H: Same as 1-3 but the person expresses their views by buying a local “throwaway” newspaper and uses that as vehicle to express their viewpoints.

      1I-3I: Same as 1-3 but the person expresses their views by creating a local “throwaway” newspaper and uses that as vehicle to express their viewpoints.

      1J-3J: Same as 1-3 but the person expresses their views by registering a domain name and hosting a web page on AWS where they express their viewpoints available to all internet users globally (except perhaps those behind a government firewall).

      1K-3K: Same as 1-3 but the person expresses their views by posting them on Facebook, Twitter, Reason.com, Instagram, Parler, DailyKos.

      It seems to me that all of these cases are “speech” that, in some cases, is published more widely than others through the use of different technologies and approaches.

      Isn’t all “speech” that is “heard” by others “published” in some sense? Fortunately for all, my speech that consists of signing along with a song on the radio when driving by myself is not “published” but if I did so on the subway I would be “publishing” it (to the chagrin of all listeners).

  6. Isn’t all “speech” that is “heard” by others “published” in some sense?

    For all I know, that could be a technical legal definition of publishing. Maybe consult EV.

    I leave it to legal experts to haggle over boundaries involving nuanced definitions. I am content to insist that if you put your expression in some medium likely not to be evanescent, and cause it to be transmitted worldwide, to people free to access it without limitation, you have published it.

    The more enduring the medium, the smaller the present audience it would take to convince me it had been published. The possibility of unlimited future audience has to be reckoned with.

    On the other hand, no present audience at all now means no publication to me. As does no enduring medium at all. By my reckoning, words spoken aloud in a barroom are not published.

  7. The Gjoni (Gamergate) case certainly was about a matter of public concern, but one that had very little to do with romantic relationships. The public concern was whether the press, and in particular publishers who review video games, had become corrupt and dishonest, causing bad games to receive undeserved good reviews and deceiving their purchasers. Under that theory the alleged romantic relationship amounted to sex-as-a-bribe.

    1. How exactly this public concern was adressed by the onslaught of rape threats and death threats against an obscure indy game programmer and other female gaming figures is an exercise in contorted reasoning for the observer to indulge in, particularly the mechanics and prevalence of sex-as-a-bribe for positive reviews in an indutry dominated by large and welathy corporations, let alone the failure to establish any such quid pro quo between the targets of said rape and death threats and game reviewers.

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