Overbroad Injunctions Against Speech: "Stop Talking About Plaintiff" Injunctions

I’m continuing to serialize 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; all the posts in this series will be available here.)

Some injunctions in libel cases categorically ban defendant from speaking about plaintiff (or at least from doing so online or on some particular site), for instance, "Defendant Leo Joseph is hereby permanently restrained from publishing future communications to any third-parties concerning or regarding the Plaintiffs in either their professional, personal or political lives." I collect many such cases in the Appendix; they include injunctions entered restricting speech about the prime minister of Haiti (the one I just quoted), a controversial billionaire Chinese businessman, as well as local professionals, businesspeople, and more.

Similar injunctions are sometimes entered in claims brought under statutes that authorize "harassment prevention orders," "personal protective orders," or "antistalking orders." Those statutes were originally designed to require defendants to stay away from plaintiffs whom they had attacked or threatened, or to stop talking to the plaintiff rather than about the plaintiff. And the statutes generally call on courts to focus on whether the defendant has annoyed, harassed, or substantially distressed the plaintiff, not on whether defendant has published defamatory statements. But the laws are increasingly used to order defendants to stop speaking about the plaintiff, based on speech that is likely annoying, distressing, or harassing precisely because it "damages [the plaintiff's] reputation."

Here are a few examples; because such orders may be less familiar than libel cases, I offer a few more details on each:

• The state senator: Florida state senator Lauren Book got an injunction "prohibit[ing]" a persistent critic, Derek Logue, "from posting anything related to [Sen. Book], even statements that would unquestionably constitute pure political speech." Logue is an advocate for the rights of released sex offenders (and himself a released sex offender); Book is a prominent backer of sex offender registration laws. The injunction was based on Logue's having protested against a march that Book had organized, having asked an aggressive question at a screening of a documentary in which both Book and Logue were featured, and having set up a web site that sharply criticized Book (and posted a picture of her home, together with its address and purchase price, drawn from public records).
• The judge: Michigan state trial judge Cheryl Matthews got an injunction apparently barring Richard Heit from making any online statements about her. Heit, whose fiancée had earlier lost a case before Judge Matthews, had harshly criticized the judge online, saying this like, "They are all liars," "We will take [Judge] Matthews [Petitioner] out. She has had it in for you from the start. She is only one step over a traffic cop. She will be in jail," "We will get this to appeals and take them all down," "A farce! A mockery! A FUCKING JOKE! Dishonest Judge," and "DO NOT VOTE FOR JUDGE CHERYL MATTHEWS if that is where you vote."
• The forensics expert and former state board member: Stacy David Bernstein was a prominent forensic psychology expert, a sometime instructor for the FBI, and a gubernatorially appointed member of the Connecticut Board of Firearms Permit Examiners. Bernstein got an order forbidding Robert Serafinowicz from posting "any information, whether adverse or otherwise, pertaining to [Bernstein] on any website for any purpose." Serafinowicz had earlier criticized Bernstein online, and pointed to a past abuse prevention order entered against Bernstein, a past judgment apparently entered against Bernstein for unpaid debts, and a possible arrest of Bernstein 30 years before. Serafinowicz had also sent letters to various government agencies that had dealings with Bernstein.
• The planning board member: Planning board member Colleen Stansfield got an order forbidding Ronald Van Liew from, among other things, mentioning Stansfield's "name in any 'email, blog, [T]witter or any document.'" Van Liew had earlier run for town council member against Stansfield, and had called Stansfield "a liar and corrupt"; he had also had some personal run-ins with her.
• The commission member (and her brother the mayor): Norma Kleem, a town commission member and the sister of mayor Cyrus Kleem got an order barring Johanna Hamrick—who runs a local blog and had been candidate for mayor and city council president of the town —from "posting any information/comments/threats/or any other data on any internet site, regarding the petitioner and any member of her immediate or extended family," which would have barred comments about the mayor as well.
• The police officer: Police officer Philip Lanoue got a court order barring Patrick Neptune from, among other things, "posting anything on the Internet regarding the officer." Neptune had earlier criticized Lanoue on the site org based on a what Neptune thought was an improper traffic stop, sent public officials several letters criticizing Lanoue, and sent three letters to Lanoue's home address.

• The anti-vaccination activist: Kimberly McCauley got a court order providing that fellow activist Matthew Phillips "[n]ot post photographs, videos, or information about [McCauley] to any internet site." Phillips had argued that McCauley had sold out to pro-vaccination forces, and included photographs of McCauley's daughter (which she had earlier posted herself), apparently to suggest that McCauley was endangering her own daughter by vaccinating her.
• The fake immigration lawyer: Nelly Gabueva got a restraining order requiring lawyer Andrei Romanenko to "take down all harassment material on website related to Nelly A. Gabueva." The "harassment material," according to the petition for the restraining order, consisted of Romanenko's allegations that Gabueva was practicing immigration law without a license. Several months later, the California Bar seized Gabueva's practice on the grounds that she "led clients to believe that she was an attorney and qualified to practice immigration law," even though she had "never been admitted to the State Bar of California"; and a federal criminal complaint was filed against her on similar grounds, though that case was later dismissed.
• The copyright owner: Poet Linda Ellis got a court order requiring a site run by Matthew Chan to remove "all posts relating to Ms. Ellis." There were about 2000 posts on the site mentioning Ellis, and generally criticizing her practice of demanding thousands of dollars from people who had posted copies of one of Ellis's poems.
• The ex-girlfriend and successful video game developer: Prominent video game developer Zoë Quinn got a court order forbidding her ex-boyfriend Eron Gjoni from "post[ing] any further information about [Quinn] or her personal life on line or … encourag[ing] 'hate mobs.'" Gjoni had posted a Web page describing his romantic relationship with Quinn, and claiming that she had emotionally mistreated 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, labeled the Gamergate controversy.
• The condominium association: The Hamptons Metrowest Condominium Association got an order barring resident Howard Fox from "post[ing] anything related to The Hamptons [condo complex]," and requiring him to "take down all such information" from his existing blogs. Fox had "utilized the internet to voice his displeasure over the quality of life at the Hamptons."
• The businessman with an arrest record: Christopher Fuller got a court order "prohibit[ing] [Frank] Craft from posting anything about Fuller on the internet" for five years. Fuller had been arrested for caller ID spoofing several times; Craft, his former business associate, then posted a dozen tweets with the hashtag ("#spoofingschmuck") but without using Fuller's name. Fuller claimed the posts would be understood to be about him, and sought a restraining order—which a judge granted,
• The political consultant: Jason Miller got a court order forbidding his ex-girlfriend Arlene Delgado, with whom he had a child from "engag[ing] in any social media … which comments … on the [Miller's] emotional or mental health or personal behavior." Miller was an adviser to the 2016 and 2020 Trump campaigns, who was slated to be President Trump's White House Communication Director but withdrew when his affair with Delgado (a political commentator) came to light.