Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases)

I’m serializing a new law review article draft of mine.

(For the full PDF, with footnotes and an Appendix listing the cases I'm discussing, see here; note that the article is still in draft, so I'll be adding more materials, and any feedback people can offer would still be very useful. All the posts in this series will be available here.)

Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction like this: "[Defendant] is permanently enjoined from publishing … any statements whatsoever with regard to the plaintiff."

It's hard to reconcile such an injunction (whether entered in a libel case or as a "personal protective order") with the First Amendment. And yet I have found 200 such injunctions (almost all in the last 10 years)—some as broad as that one, and others narrower but still overbroad—entered either in libel cases or in cases involving petitions to stop harassment or cyberstalking.[1]

They have involved speech criticizing exes and other family members;[2] businesses or professionals (lawyers, doctors, real estate agents, financial advisers) with whom speaker say they had a bad experience; police officers, judges, and other government officials; and more. Some have banned all speech about the plaintiff, or all online speech about the plaintiff.

Others have been narrower—for instance, banning all "derogatory" speech or all posting of photographs of plaintiff—but still covered constitutionally protected speech (and not just libel or true threats or unwanted speech said to the plaintiff). Many of these injunctions are focused on online speech, but the Court has made clear that online speech, and in particular speech on social media, is fully protected by the First Amendment (as much as is speech in newspapers or books or leaflets).

Unsurprisingly, most such injunctions involve either a defendant who was not represented by a lawyer, or a default judgment against a defendant who did not appear, so the First Amendment arguments against the injunctions were likely not effectively laid out in front of the judge. Part I lays out the evidence—and doubtless it's just the tip of the iceberg, since most unappealed injunctions aren't systematically accessible online.

When these injunctions do go up on appeal, they almost always get reversed, because they violate the First Amendment. Part II discusses the precedents on this, both from the U.S. Supreme Court and from state appellate courts. I hope this Part will be especially useful to judges, lawyers, and even pro se litigants dealing with such cases. (I discuss state and federal appellate precedents there in more detail than is common for a law review article, precisely to be more useful to practical litigation.)

But some state appellate decisions have upheld such injunctions, based on two related theories. First, some courts have concluded that the First Amendment doesn't protect harassment, and that otherwise protected speech becomes unprotected harassment when it is said (especially when it is said often enough) with an intent to offend, embarrass, or harass. Second, some courts have concluded that the First Amendment doesn't protect such speech when it is on a matter of merely "private concern." I think these theories are inconsistent with First Amendment precedents, and Part III will discuss that.

Finally, Part IV will speculate why courts are doing it, and how it bears on broader debates—for instance, about how the "cheap speech" created by the Internet has affected public discussion; how some judges might perceive their role in pragmatically resolving disputes; and about how judges deal with litigants that they see as irrational and uncontrollable using normal tools.

Our legal system offers many remedies, however imperfect, for damaging speech about a person. One is libel lawsuits, and even narrowly tailored injunctions forbidding the defendant from repeating specific statements that have been found to libelous at trial. Another, in some states, is criminal libel law. A third, in other states and under federal law, is criminal harassment law or cyberstalking law, though that may raise its own First Amendment problems. In if Donna is writing derogatory things to Paul, rather than just about him, he may able to get a restraining order to make that stop.

But the injunctions I describe in this article are not a permissible remedy. Of course, persistent online criticism, which may often be unfair and insulting, may understandably distress its targets. But, as the Supreme Court and lower courts have made clear, such speech is generally constitutionally protected.

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[1] Harassment here refers to criminal harassment or harassment that might be targeted by harassment prevention orders, not hostile environment workplace harassment, see Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791 (1992), or quid pro quo workplace harassment.

[2] From what I've seen, such orders don't exhibit any particular gender pattern; men sometimes get them against ex-wives and ex-girlfriends, women against ex-husbands and ex-boyfriends, and some stem from same-sex relationships.