Overbroad Injunctions Against Speech

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

I’m continuing to serialize a new law review article draft of mine.

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(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.

NEXT: My New Washington Post op ed on Biden, Syria, and War Powers

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  1. Was it intentional selection or generally representative that the vast majority of people getting the orders listed are women?

    1. Well, this particular list — counting the two libel injunctions mentioned in the opening paragraph — included 8 women, 6 men, and one organization; it could easily have been different if I’d added some more examples, of which I have many.

      Of the over 200 injunctions that I mention in the Appendix, 70 were brought by women, 95 by men, and others by groups (including married couples), by businesses, or by plaintiffs whose gender was not evident. Neither of these samples, of course, is likely to be representative samples of the universe of cases; as best I can tell, all I can say is that many cases involve male plaintiffs and many involve female plaintiffs.

  2. Respectfully, I think that a statistically-valid qualitative study might be appropriate here, and I would consider excluding those brought by police officers (who have working familiarity with the court system*) and possibly governmental bureaucrats.

    I’m a qualitative researcher, and freely admit that bias, but I think the question is if the concept of “violence against women”, and all of it’s legal petticoats, is creating injunctions where they otherwise would neither be sought nor granted.

    I have personally seen “let us do your paperwork” posters in police officer work areas — VAWA-funded advocacy outfits offering to do the paperwork for police officers. And it isn’t just that police officers often aren’t good typists, they usually aren’t all that good with usage, grammar, and even spelling (often mistakenly putting completely wrong words into reports because spellcheck suggested them — sometimes laughably wrong words).

    I realize that there are all kinds of extraneous factors to be controlled for here, and I know you can’t do that in a simple law review article, but — in addition to everything else — there is the question if Dick & Jane both walked into the courthouse under similar circumstances, with someone equally offensive saying something that they didn’t like, would they be treated the same way?

    It may be outside the scope of your research, but I think it is a valid question…

    —–
    *I know I will again be accused of lying, but three degrees ago, I did read a study that indicated personally knowing a police officer as a factor making low income and minority people more likely to utilize the court system, the author’s presumption being that officer’s familiarity with it helped them utilize it. It does make sense — a cop would at least know where the clerk’s office is, etc…

  3. Curious if any of the contributors plan to write about today’s decision in Uzuegbunam v. Preczewski. (Now there’s a name that is new in the annals of reported cases). Interesting issue and lineup. And sure to be used in many campus free-speech cases.

    1. I would argue it is more of a campus due process decision than just a free speech one and I like Kavanaugh’s point — the school could (and should) have just admitted that it was in the wrong and paid the nominal damages.

      Reflective of the nonchalant disregard administrators have for due process is this gem from UMass Amherst: “All students involved will have their appropriate due process, but under no circumstances will they continue as a university student in the interim.” — expulsion now, due process hearing sometime next fall, if desired…

      The sad thing is that UMass got sued for this exact sort of thing a couple of years ago, and that case was mooted out when they agreed to actually give the student a hearing. My take on U v. P is that the harm’s already been done.

  4. Stop talking about the plaintiff, but don’t stop thinking about tomorrow –

    https://www.youtube.com/watch?v=QV9JJmSCiI8

  5. Professor Volokh, my view is that, with exceptions, the law tends to be more normative than ground-breaking. If you agree, then maybe it is worth reflecting on norms the internet has blown up. You remark on how many cases of this type seem to have happened in the last 10 years. Well, what changed? One previously reliable norm was that nobody published world-wide their private animus against an ex-spouse, or a local small-time politician.

    I don’t think it is surprising at all that judges and legislators are taking note of that normative change, and doing what they can to resist it. A question raised by the upsurge in cases of this sort is whether it is right for the courts to be in the vanguard of efforts to overturn a norm which few people would suppose was anything but virtuous, constructive, and worth preserving.

    Of course I understand your context, that the subject matter is not about violating this norm, but instead about protecting free speech. I wonder if tacit in that estimation is a misplaced sense that you are resisting unwholesome change, when in fact a great many people think the contrary. They think there never was a time when stuff like the subject matter of many of these cases could get widely published. They think that is the unwholesome change. What you seem to think is protection of hallowed values by the law, others think of as the law breaking new ground to inflict swill on society.

    That raises a question. There have been times when extending logically consistent application of the law did break new ground, to deliver social progress and much-need moral correctives. Civil rights cases stand out, of course. Do you suppose cases involving world-wide publication of private animus between embittered former spouses will someday come to be seen as cases of that sort?

    I have commented before about your framing when these issues come up. This thread is another example. What makes these cases stand out as norm breakers is of course not the private animus, nor the unhinged nature of some of some of the material. Those are not new in the world. What is new, and anti-normative, is publishing that stuff without prior editing, and doing it commonly, so the flood tide unleashed defeats any reasonable prospect of post-publication correctives.

    Your style of description consistently deemphasizes that aspect. You refer again and again to troublesome published content as, “speech,” as if the subject were a conversation over a back fence. Or, as in this thread, as “posts,” as if the offending material were tacked up on a bulletin board somewhere. Your commentary would gain explanatory power if you made it a point to distinguish instances of world-wide publication from other less-powerful, less-influential, less-lasting, and less-potentially-threatening means of communication, such as ordinary speech and bulletin board posts.

  6. I love seeing the media reminding Florida State Senator Lauren Book that I own THREE victories over her in court now– the Appeals court 3 judge panel ruling, upheld by the full FL Appeals Court, and the denial of review by the state Supreme Court.

    I’m looking for an attorney willing to help me sue this vile State Senator.

  7. What you love Derek is the 11 year old child you were convicted of molesting. Without your “sex offender” label you would be a grocery store bag boy instead of living off taxpayers with a fake disability.

    1. So says the loser who posts pictures of my underage relatives on a virtual stalker wall. It hurts seeing your hero Book lose again and again to me, eh, loser? Keep crying!

      1. So says the Nebraska Sex Offender Registry and the Florida Sex Offender Registry where you’re featured. You’ve also spent three years avoiding eight counts of grand theft in Florida. Brag all you want about your one and only court victory. A simple Google search brings up the numerous court cases you lost starting when you admitted sexually harming a child.

        1. Only one drudging up the past here is my little personal stalker, especially the false arrest one. Maybe you’d like to tell readers your rationale for stealing pictures of underage family members of mine to post on your little virtual stalker wall, “Lucky Larry.” Maybe that’s why you took down the blog, since it makes you look very suspicious.

          By the way, THREE court victories over Lauren Book is more significant because you’re clearly still seething about it.

  8. Registered as a sex offender in two states for boinking a child while out on bail for eight counts of grand theft leaves you little room to shame anyone. A simple Google search for “Derek Logue” court cases brings up all the cases he lost including crying about the U.S. Marshall Service. In fact he’s never changed a single law regarding the registry. p.s., Lucky Larry ain’t on no registry. LOL!!!

    1. You keep on pushing the false theft narrative so it is going to look even worse for you when the dismissal is finalized. I’m pretty sure you took your stalker blog down in response to the news.

      “Larry Lynch” is not your real name and any rational person can safely assume your reason for hiding your identity is that you have a good reason to hide. Perhaps you are a registrant yourself, one of those angry that I didn’t help you get a legal dream team or something. Why else would you hide your identity?

      Imagine being so lame, you spend every waking moment of your life obsessing over me. You must have me on Google Alerts or something. Imagine being so pathetic, you had to look up distant relatives of mine I don’t even converse in hopes of getting under my skin. It failed.

      The fact you bring up the US Marshals case tells me you don’t unddrstand law. The coyrts simply refused to hear an argument against compliance checks because I upheld my right to refuse entry so they felt there was nothing to discuss. But I expect no less from a person who thought the word “depose” was a made up term.

      I haven’t stopped every bill I fought but I have stopped a few so you’re wrong on that account as well.

      More importantly, I won a very important victory in Florida courts against an powerful professional victim advocate. It must really hurt to read this:

      “The parties’ opposing viewpoints on such laws are widely debated within what Justice Oliver Wendell Holmes once described as the “free trade in ideas.” Abrams v. U.S., 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). True, one side of this debate has far greater public support than the other, but that does not make the Respondent’s advocacy illegitimate.” — Justice Klingensmith, FL 4th Appeals Court judge, writing for the majority opinion, in favor of me, of course.

      In other words, haters are gonna hate. Keep seething, “Lucky Larry.”

      1. Your “victory” is you won the right to call a woman a cunt. Your mama would have been proud.

        1. Welcome to the First Amendment, Sucky Larry. And you’re damned right I am proud of my victory, as I should be. If your pathetic heroine cant handle being called Perpetual Victim Barbie, a Trauma Queen, a crook, a charlatan, monster, or a cunt with Buddy Holly glasses, then maybe she should get out of politics. She can’t litigate her way out of criticism.

          Lauren the Bimbo spent years calling me and others on the government blacklist all kinds of foul names, and she cant handle one of her victims fighting back. The Florida courts saw through her cheap ploy.

          Nothing– NOTHING — can take this victory away. Keep seething, Sucky Larry.

          1. Name calling is all your “movement” is about. Nothing more.

            1. So says the person who engaging in actual stalking, who thinks it is funny to steal and poorly photoshop pics of me and my family, and who continues to call me all kinds of foul names (your poor spelling gives it away). Maybe Mr. Volokh can cover the classic case of Pot v Kettle for his next report for you.

              PS: Daily reminder your heroine LOST! Keep seething! 🙂

              1. So says the sex offender registry in Nebraska and Florida.

                1. Who cares about the registry? No one uses it except scammers and stalkers like you.

                  More importantly, courts recognized that Florida State Senator Lauren Book abused the law to try to silence a peaceful protester and she failed. And you can’t stop crying about it. Keep seething 🙂

                  1. Registered as a sex offending predator in two states for having sex with an 11 year old child plus doing everything you can to avoid judge and jury for your eight counts of grand theft in Florida is nothing to brag about. But you’re chosen to brag about and making a lame career out of being a thief and perverted pedophile. Wow! Puff up that girly chest! LOL

                    1. The same old song and dance from you is boring. But watching you constantly throw temper tantrums online because your efforts to silence me go nowhere never gets old 🙂

  9. Everybody knows you won’t be silenced because you’re a blabbermouth crowing about going to bed with a child and positively identified in a grand theft case – eight counts. So keep on bragging about being a loser living in a rundown shack in a dead end town.

    1. Again with the broken record. You need a new shtick. You can wish it all you want, but at the end of the day, your fantasy is still nothing but fantasy. But you know what’s reality? Lauren Book losing in court three times. Keep on crying, loser.

      1. This Lauren Book you keep harping on, is that somebody you’re stalking? As a convicted sex offender who was caught in bed with a child, isn’t Lauren Book too old for you?

        1. You keep following me around the Internet and leaving your droppings everywhere. That is real stalking. Go back and reread Logue v Book because it shows the difference between peaceful protest and stalking, something you fail to grasp.

  10. fantasy is believing you will someday be off multiple sex offender registries. dream on predator.

    1. Sorry, can’t hear you over the sound of your hero crying in defeat. You’ll be doing more crying, though, as the registry slowly goes away as governments realize what a waste it has been. While you’re busy trying to get my attention every day with your whint posts, I’m busy chipping away at the useless, bloated blacklist.

      1. Dream on “Once Caught.” You’ll be on the registry in two states for the rest of your life and even after that. Looks like you’re going to be jailed for grand theft in Florida. Can’t get continuances to dodge a judge and jury forever.

        1. “Lucky Larry”, why hide your real identity? What are YOU hiding, I wonder?

          I’ve been begging the courts to hurry up because I have more than enough evidence (videos, eyewitnesss, and physical data) to prove my innocence in the false theft case. The only person delaying court cases is your buddy Ronald Lee Book and his DUI.

          I’d love to hear you try to explain how I can be in Cincinnati and Ft Lauderdale at the same time. That’ll be good for a laugh. Go ahead, I’ll wait.

          1. Easy. You gave a friend your EBT card to use while you were in Florida thinking that will cover your tracks. Your lawyer keeps scheduling and cancelling depositions in your case as a delaying tactic to keep you out of jail. We’re now looking closely at your case with the Book “family” who you keep blaming for your troubles while at the same time brag that you beat them in court. We see you’re no stranger to orders of protection. Brandi, that nice woman who married you when she was only 17, got an order of protection to keep you away. Stalker!

            1. That’s not a good enough answer, Unlucky Larry. The state, not my attorney, cancelled depositions. Nice try, though. If anything, the state is stalling for timer because their half-assed investigation is going to cost them a hell of a lot of money because it is painfully obvious the

              If you think the EBT records are all I have as evidence, you don’t know as much about this case as you think you do. (I mean, you didn’t even mention the two eyewitness depositions.) I wish I could share the mountain of evidence in this case in my favor, even the HD video from the car lot that conclusively shows a different person (gotta love modern technology). How about you come to my house so I can share this with you in person? You still have a lot of explaining to do.

              It is hilarious that you keep calling me a stalker while following me all over the Internet, calling me while spoofing numbers from fellow anti-registry activists, sending nasty text messages, impersonating me online, and running a blog using stolen and doctored pictures of me, all the while trying to encourage suicide or sharing your disgusting fantasies you have of me being raped. Unlike your years long stalking of me, my protest of the Books and my online criticisms have always been within my 1st Amendment rights, and not once did I ever threaten or even contact Lauren Book directly. That is exactly why the FL 4th Circuit Court of Appeals ruled twice in my favor, and why the FL Supreme Court denied Book’s final appeal. I’m pretty sure an unbiased look at your activity against me over a period of at least 4 years now would consider that pretty stalker-ish behavior.

              The fact remains, you’re still angry I defeated the “untouchable” Lauren Book in court (along with who you claimed was “the best attorney in all of Florida”), and there will be more victories on the way. So keep on seething, and stop pretending to be Larry Lynch.

              1. What did you do to inspire Brandi, the 17-year-old you married, get get an order of protection against you?

                1. You failed to answer my question, so now you have to deflect, Unlucky Larry. If you must know, the answer is nothing. Girl’s got things she needs to work on in her life, just like Lauren Book, and ROs are far to easy to obtain. You don’t have to do anything to get one but give a name and proclaim you fear someone and boom, you got it.

                  The abuse of restraining orders is yet another area of the American courts in serious need of reform. That IS the original premise of this article, so instead of being a complete buffoon, you can read the article and at least be a bit more educated than you were when you came in. Your IQ may even register in positive numbers if you do!

  11. Answer this … you abused Brandi didn’t you? That’s why she went after a second order of protection a few years ago, because you were stalking her again? Brandi was a child when you married her. She had to get Jerry and Betty to sign off so you could marry her in Tennessee. Children are easy pickings for unattractive overweight no-future losers.

    1. There you go with your overactive imagination again. The only thing you are proving here is that you are truly engaging in stalker behavior. You do realize she and I are only 2 years apart in age? And no, I never laid a hand on her. Again, as this article states, people, women especially, freely abuse ROs. A woman who never met late night comedian David Letterman got a restraining order years ago against him because she believed the late night hos was sending her secret messages during her monologue. Again, you miss the point of this article because of your blind obsession with me. But your imagination does not detract from my three victories over your hero, Florida State Senator Lauren Book. If anything, your continued attacks only prove my point and the point of this article.

  12. The leaves are falling. Merry go round.

    1. We keep going ’round and ’round because you’ve been beating the same dead horse for at least 4 years, if not longer. Your obsession with me is unhealthy. You seriously need to find a girlfriend and/or a hobby, and definitely a therapist.

  13. Nebraskans For Freedom!

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