Overbroad Injunctions Against Speech: Narrower but Still Overbroad

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 are narrower, but still aren't limited to unprotected categories of speech (such as threats or libel).

[1.] Negative/derogatory/disparaging speech

Some injunctions ban "negative," "critical," "derogatory," "degrading," "demean[ing]," "offensive," or "disparag[ing]" material. Yet such negative but not defamatory material is generally fully protected by the First Amendment, as cases such as Hustler v. Falwell and Snyder v. Phelps make clear.

[2.] Speech interfering with business relationships

One injunction banned a disgruntled ex-tenant from "directly or indirectly interfering  … via any  … material posted … in any media with [the ex-landlords'] advantageous or contractual business relationships." This provision deliberately went beyond defamation; indeed, a separate provision of the injunction already banned speech "calculated to defame." Other courts have issued similar injunctions. Several more injunctions have barred disgruntled ex-clients from posting reviews of particular businesses or professionals, again without any limitation to false and defamatory factual claims.

Yet speech that interferes with business relationships, for instance by urging someone not to deal with a company, is generally fully protected, unless it's defamatory. The tort of intentional interference with business relations is subject to the same First Amendment constraints as is the tort of defamation, which would include the requirement that liability only be imposed on a finding that the speaker's statements included factual falsehoods.

Other injunctions have barred a defendant from contacting plaintiff's clients or prospective clients; the injunctions applied to all statements, whether false and defamatory, true, or expressions of opinion. These too are unconstitutional: An injunction "which prohibits [defendant] generally 'from contacting past or present clients of [plaintiff]'" is overbroad to the extent that it "is not supported by the district court's findings of fact or conclusions of law regarding defamation."

A similar injunction barred defendant from contacting plaintiff's employer or prospective employers. Indeed, a Tennessee statute requires courts in all divorce cases to issue orders "restraining both parties … from making disparaging remarks about the other … to either party's employer." But that too is unconstitutional, for the reasons given above.

[3.] Specific accusations of misconduct (but with no finding of libel)

Still other injunctions forbid a speaker from making specific allegations of misconduct against plaintiff—but without any finding that the allegations are libelous:

• In Stark v. Stark, for instance, Memphis Police Department Sergeant Joe Stark got a court order requiring his ex-wife, Pamela Stark, to take down a Facebook page that was critical of him (she had accused him of abusing her) and of the Police Department (which she had accused of not suitably investigating her claims of abuse).
• Another order restrained a newspaper, the Daily Iberian, "from publishing or posting on its website any article or story in which plaintiff David W. Groner is accused of dishonesty, fraud or deceit in connection with a Louisiana Supreme Court decision or similar matter."
• A plaintiff got a pretrial injunction against defendant's "[c]ontacting or communicating with people or entities in Idaho or on the internet concerning the criminal history of the Plaintiff(s)" or "any allegations of wrongdoing by Plaintiffs."
• Another speaker was barred from "characteriz[ing] Plaintiffs as unfit in their business and profession, cast[ing] serious doubt upon their honesty and integrity, and stat[ing] that Plaintiffs have committed or are currently committing a crime or other defamatory allegation." This is not limited to false and defamatory future allegations; it applies even if defendants learn things that do cast serious doubt on plaintiffs' honesty and integrity.
• Another speaker was barred from making statements "suggesting that Plaintiff was not deployed overseas, was not in combat, was not injured while serving in the United States Military, and/or did not earn the medals he claims to have earned," though the court expressly held that the evidence does "not confirm, one way, or another, without further investigation," the accuracy or inaccuracy of those statements).
• A parent whose child's body had been prepared at a funeral home, and who was upset that a convicted sex offender was working there, was "restrained from speaking, delivering, publishing, emailing or disseminating information in any manner regarding [the employee's] sex offender status, his address and employment status to anyone any­where."
• Some speakers have been enjoined from accusing plaintiffs of crimes, even without a finding that such accusations are false.
• Some speakers have been enjoined from expressing pejorative opinions about plaintiffs, including ones that would be seen under libel law as pure opinions and therefore as constitutionally protected (e.g., references to plaintiff as a "bully" or "unprofessional").

[4.] Accusations of misconduct sent to government authorities

Some courts have barred defendants from submitting complaints about plaintiffs to the police or to government agencies. A Tennessee statute, noted above, requires courts in all divorce cases to issue orders "restraining both parties … from making disparaging remarks about the other … to either party's employer"; when one spouse works for the police department, these orders forbid the other spouse from filing a complaint with the police, or with higher-ups in local government.

[5.] Information about the underlying lawsuit

Some cases have barred the parties from speaking about the court order itself, or about filings in the case, e.g., "All parties are enjoined from disseminating this order to the public."

[6.] Pictures of plaintiff

Some other injunctions ban posts that include pictures of the plaintiff: Businessman John Textor, for instance, got a court order barring his billionaire business rival Alki David from "posting any tweets" or "any images  … directed at John Textor without a legitimate purpose." Community activist Clarence Moriwaki got an order barring a political critic, Richard Rynearson from "us[ing] the photograph of [Moriwaki] to create memes, posters, or other online uses." I cite several more such cases in the Appendix.

Yet the First Amendment includes the right to illustrate one's criticisms or comments about people using their photographs. Newspapers and TV stations routinely exercise that right, and other speakers are entitled to do the same.

[7.] Using plaintiff's name in title or domain name

The Moriwaki v. Rynearson injunction barred Rynearson from posting sites or pages "that use the name or personal identifying information of [Moriwaki] in the title or domain name," even when the pages made clear that they were criticizing Moriwaki rather than being authored or endorsed by him.

[8.] Other speech

• In Brummer v. Wey, plaintiff—a prominent law professor who had been unsuccessfully nominated by President Obama to be on the Commodities Futures Trading Commission—got an injunction restricting an online tabloid from displaying any pictures of lynchings associated with his name. The tabloid had accused Prof. Brummer (who was himself black) of having perpetrated a figurative "lynching" of two black stockbrokers by being on an arbitration panel that permanently banned them from their profession. The images were accusations that Brummer was the lyncher, not threats that Brummer would himself be lynched, but the order nonetheless banned such images.
• In Catlett v. Teel, plaintiff got an injunction barring her ex-boyfriend from posting public records that he had obtained about her, including ones that had mentioned her past arrests for harassment and domestic assault.