Why Are Some Courts Issuing Overbroad Injunctions Against Speech? Part 1, Absence of Intermediaries

Some speculation from my forthcoming article.

(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. I'm skipping the doctrinal discussion of why the injunctions are indeed unconstitutional—you can see plenty of that in the PDF—and turning to some thinking about what might be driving the courts' decisions here.)

The principles I mentioned above—that a court may not enjoin speech that falls outside the First Amendment exceptions—are well-established; why then do at least some trial court judges depart from them?

First, repeated criticism, even if it consists of opinions and accurate factual statements (and is thus not limited to actionable, enjoinable libel) 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.

Such criticism can be perceived as intruding on privacy, by making its targets feel that they have become the object of others' condemnation, or even just 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. (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; but I leave that matter for another article, and focus here on perceived harm to reputation and privacy.)

Now all of this, by itself, cannot justify restricting speech. Near v. Minnesota, one of the two earliest cases in which the Court struck down government action on First Amendment grounds, involved a newspaper's repeated, unfair, anti-Semitic criticisms of various people. But the Court held that the newspaper could not be shuttered to prevent such speech—only lawsuits and criminal prosecutions for specific constitutionally unprotected libelous statements would be allowed.

Likewise, Organization for a Better Austin v. Keefe made clear that repeated criticism could not be enjoined, even when it was deliberately distributed in a private figure's home town and urged people to call his home phone number. The Organization for a Better Austin believed that Keefe was engaging in unethical real estate marketing, which would change the racial mix of the neighborhood away from the integration that the Organization preferred. They leafletted near Keefe's home (deliberately choosing that area rather than the town where Keefe had his office), at times approaching people who were leaving Keefe's church. They left leaflets at the homes of Keefe's neighbors. Yet when a judge enjoined the leafletting, the Supreme Court reversed.

NAACP v. Claiborne Hardware Co. similarly held that even repeated criticisms, which the private-figure subjects understandably found troub­­ling, couldn't be enjoined and couldn't even lead to damages liability. The NAACP was organizing a black boycott of white-owned stores in Claiborne County, Mississippi. Some black residents didn't want to go along, so to pressure them the NAACP stationed "store watchers" outside the stores, took down the names of black shoppers, announced the names in black churches, and distributed a mimeographed list with the names of the shoppers. Unsurprisingly, there were some violent attacks on blacks who didn't participate in the boycott, likely stemming from their refusal to participate. Yet the Supreme Court held that this speech was protected.

By the 1930s, then, it was pretty clear that even scurrilous, repeated vilification in newspapers could not be enjoined. Organization for a Better Austin and Claiborne made the same clear for repeated criticism by organizations. Very few, if any, courts today would be inclined to enjoin alleged harassment or stalking—in the form of publications, whether in print or online—by a newspaper or by a familiar-looking, traditionally organized advocacy group. Yet for some reason some judges are willing to enjoin such speech by individuals. Why?

I suspect this flows from two related reasons. First, 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 tends to 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.

Second, newspaper speech can have many motives, but the most plausible ones tend to be public-regarding. Perhaps the publisher, editor, reporter, or columnist has a political agenda. Perhaps they are 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 that 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, even relatively little-known ones such as the Organization for a Better Austin: 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 critical under many harassment or stalking statutes, which condemn speech that is said with "the intent to annoy" or with "no legitimate purpose." (I have argued that such motive is generally irrelevant to the value of the speech, and should thus not be used to justify restricting speech that has presumptively valuable content; but the statutes are premised on a different view.) Indeed, some courts have taken the view, in government employee speech cases, that speech that is 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, the speakers in all these cases would likely take a different view of the value of the speech, and of their own motives. I suspect that most think they really do have valuable things to say, and that their motives are to inform the public.

If I'm right, then 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 not—and the judges think that threatening criminal punishment for violating an injunction is the necessary means for stopping such speech.

As I mentioned, I think that such a view is wrong, and that speech that's 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. But I think these injunctions come about because judges see that everyone can speak the way that established media and political organization have long spoken—and judges often don't like it.