Overbroad Injunctions Against Speech

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

Some speculation from my forthcoming article.

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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. 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.

NEXT: Today in Supreme Court History: March 10, 1919

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  1. “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.”

    Quite high-minded words from the “often libertarian” censor who (1) deletes the terms “c_p succ_r” and “sl_ck-j_w” (when used to describe conservaties) and (2) banned Artie Ray Lee Wayne Jim-Bob Kirkland for making fun of conservatives a bit too deftly.

    1. Your ability to revise history is almost as remarkable as your ability to be oblivious of the hypocrisy inherent in your own intolerance and bigotry.

      1. I have provided the details and dates more than once, clinger. If you have competing evidence, please provide it. Otherwise, quit whining and try to improve as a person to a point at which you overcome your right-wing bigotry.

        The proprietor appreciates your sycophantic service, however.

    2. a bit too deftly

      Ah, Rev. Everyone really does like their own brand.

      1. You figure Artie would have been banned had his conservative-tweaking commentary been ineffective, or counterproductive? The stated and obvious aim of this blog is to try to make right-wing opinion more popular and palatable beyond the customary clingerverse.

        1. You figure Artie would have been banned had his conservative-tweaking commentary been ineffective, or counterproductive?

          At one point slightly over one pandemic ago, I recall Eugene actually posting some of your specific spew at issue. I think words like “ineffective” and “counterproductive” are far too kind.

        2. I think your original Arthur L. Kirkland persona, for all its idiosyncrasies, was often quite effective at skewering VC posters and commenters (including me) for their ideological blind spots.

          Your Artie persona, by contrast, was just annoying, as has been the majority of your Rev. Arthur L. Kirkland stuff. I would add that I for one appreciate your return tomorrow substantive commentary over the last year or so.

    3. Cop succor? Slack jaw? Jeez, those are Sunday School words compared to what goes on in usenet. And I have seen a lot of raucous free speech here too.

      1. I have been expressly instructed — in some cases after my comments using those words to describe conservatives were deleted by the proprietor — not to use those words at this blog.

        I recognize it seems odd that this blog — which regularly and often gratuitously publishes the most vile racial slur and which often publishes comments describing how liberals should and are to be gassed, shot in the face, sent to Zyklon showers, and placed face-down in landfills — would censor those words. But that censorship has occurred at this blog and is documented. I have never received a withdrawal of the censorship admonitions or an indication that those censorship decisions have been reconsidered.

  2. Third, newspapers have more money for lawyers and more incentive to fight back harder?

    1. Whoops — an obvious and correct point, which I thought I had mentioned in this article, but I see I had neglected to; will add, thanks!

  3. Racism, sexism, homophobia, transphobia, and anti-Semitism fear the disinfecting shine of the public eye. Privacy is just another tool uses by bigots to maintain white supremacy in America. Should Google or Twitter keep direct messages to other users private if racial slurs are used or should those “private” messages be opened to the public for identification and criticism of bigoted views?

    1. Your opinions are worthless, Rabbi. You’ve written that you approve of the rape of women and children by the Soviets in Germany at the end of World War II. Nothing that you write after that can make us forget your evil, demented, and hateful thinking. You are despised, and you should go find some other place to spew your garbage.

      1. As a troll account, I find the Rabbi’s comments the most amusing. First, he’s not serious most of the time, but you can’t always tell when he is or isn’t using satire. That’s tough to pull off, and only the best troll account are capable of it.

        Second, you know it’s a troll account. There are, ahem, “misguided” commenters on this site who have been so victimized by disinfo, that they spew worse garbage and believe every word of it.

        1. I’ll agree, he could be a troll. But isn’t the word “troll” simply a synonym for an eight-letter word beginning with ass and ending in hole? And even trolls should be held to some basic level of human decency, shouldn’t they? Some topics, such as the rape of women and children, should never be the subject of attempted humor or satire. It is curious, by the way, that he appears to lack the courage to defend himself.

  4. I think Prof. Volokh is correct on a descriptive level, but he may be wrong on a prescriptive one.

    In other words, when it comes to being able to broadcast speech in the mass media that hurts other people, having editors and others you are accountable for is actually crucial.

    Let’s say (and I’m picking them at random, not for any ideological reason) that The Salvation Army decides they want to harm someone. Well, they have a lot to lose! If whatever they say or do is seen as unjust, they could lose a ton of donations! It could seriously harm their message.

    Similarly, as Prof. Volokh points out, a newspaper that engages in some sort of unjust campaign to harm someone could lose subscribers.

    Now these principles aren’t total safeguards. I.e., if the Salvation Army’s donors or the Chicago Tribune’s subscribers all or almost all think that it’s just fine to pile on this person, then the organization can get away with it. But you are taking a big risk.

    In contrast, anonymous people online have nobody to check their behavior and nobody who is going to hold them to account for what they say. If anything, online pile-ons are fun for a lot of people which creates an incentive to do it. So if they attain a big megaphone, there’s no real check on their bad behavior.

    Now, honestly, I don’t know exactly what to do with that problem. But to just say “the First Amendment doctrine of 80 years ago covers it” is to just refuse to try and solve the problem.

    1. Good comment, Esper.

      Also, folks should stay mindful that institutional publishers wary of losing audience are generally even more wary of losing advertisers.

      As for what to do about the problem? Demand that public policy be tailored to deliver diversity and profusion among private publishers. Get rid of Section 230’s license to publish without prior editing, and the business model supporting monopolistic tendencies in media businesses will cease to function. Getting that done would be the first step.

    2. ” anonymous people online have nobody to check their behavior and nobody who is going to hold them to account for what they say”

      On the other side of the equation, anybody reading the comment should know to take it with a greater degree of skepticism due to its anonymous and unaccountable nature.

      1. If it actually worked that way, that would be one thing. But people believe stuff that gets amplified online, and act on it.

      2. On the other side of the equation, anybody reading the comment should know to take it with a greater degree of skepticism due to its anonymous and unaccountable nature.

        Alas, on the internet, that reasonable advice is more than offset by powerful algorithms, which curate individuals’ efforts to satisfy curiosity, and strew in their paths easter eggs of individually-tailored misinformation for innocents to “discover,” on their own. Getting the salesman out of sight of the sales pitch has long been understood as powerful medicine. Internet surveillance capitalism has taken that principle to extraordinarily effective new heights. The habitual skepticism of tens of millions of Americans has been defeated as a result.

    3. Now, honestly, I don’t know exactly what to do with that problem. But to just say “the First Amendment doctrine of 80 years ago covers it” is to just refuse to try and solve the problem.

      And?

      “We must Do Something. This is something; we must do it.”

  5. 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.

    Professor Volokh, your argument seems incoherent. Above where you wrote that, you did a passable job outlining, “the way,” those other, “established media and political organizations have long spoken.” You explained how (by reliance on publicly-aligned publishers and editors) that differed from the way folks being enjoined are speaking now (with no such editing, or counter-interests accounted for). But then, in the part quoted above, you said those contrasting cases were alike.

    What you said accurately, is that the former pattern was to do publishing via third parties (publishers and editors) empowered and motivated to defend public norms in addition to legal norms against libel and true threats. And you noted that the new pattern bypasses that. So today’s publishing method is not, “the way,” used previously, but a new and revolutionary way, largely without precedent among people now alive. Viewed closely, the new way is unprecedented in history.

    It is unsurprising that this novelty discomfits a body of law governing speech and publishing which evolved without need to reckon with these new effects. The customary law was never adjusted to accommodate the change. Just the opposite. The customary law was crippled in a way which put the novelty on steroids.

    While it did evolve, the law was protected. It got practical leave to narrow its focus to libel and true threats—to the exclusion of other kinds of anti-normative speech. Social protection against those other threats was delivered by private editors and publishers, who mostly screened them out. Customary (and legally encouraged) methods of editing and publishing prevented before they happened almost all the egregious and socially unacceptable would-be publications which violated extra-legal norms then, and still violate them now. Problems prevented before they happen risk being discounted to zero in the public reckoning, and that happened in this case, even in the legal community.

    Needless to say, publication on the internet is not happening that, “way,” now. Now, nothing prevents anti-normative publications before they happen. They all get published world-wide before anyone but the author can see them. That is why the anti-normative part of today’s publishing gives rise to injunctions, to prevent more of it. It is as if judges and legislators are trying to stand in for the now-missing editors. It is also why a dangerous and burgeoning political effort gathers momentum to urge government censorship of the press.

    There is more to the explanation than, “. . . judges often don’t like it.”

  6. “Why Are Some Courts Issuing Overbroad Injunctions Against Speech?”

    Because they suffer no penalty for doing so. Ever.

    Worse that can happen is they get reversed.

    1. The issue with law professors, is their internalized belief in judicial supremacy. It is an “a priori” for all their analyses. Consequently, when they see results that don’t comport with their understanding of what the law is, there is a *record scratch* disjunction that goes on in their mind. A glitch in the Matrix. Rather than look under the hood, they glance at the dials and switches on the dash and console and try to explain it that way.

      It’s better to view courts, particularly circuit courts and above, as mini-legislatures, with judges with policy preferences, who use backwash reasoning (that may make perfect legal sense) to come to the decision they want, within the limits of a kind of bounded acceptability and reach knowing that backlash rarely occurs, though they also have no way to implement their decisions without acceptance from the elected branches (apart from decisions that only effect lower courts).

      1. Is, “backwash reasoning,” an auto-correct error, an elegant coinage of your own, or a standard term with a meaning I must ask about?

  7. It depends on what historical perspective you’re using. Sure, in the recent (pre-internet) era, you had to “buy ink by the barrel” to have a major influence on public opinion, but at the time the First Amendment was adopted, there were loads of small, sometimes partisan, printers expressing scandalous opinions about lots of folks. Much of the early (English) law of defamation, which we inherited, was about word-of-mouth communication.
    Prof. V. is probably entirely correct in his speculations about why judges today tend to forget the 1A when they are presented with these cases, but that is an explanation, not an excuse. I’m a conservative with libertarianish leanings — I am now living in an era when I think the smart move is to shut up. Is that what the 1A is for?

    1. Sure, in the recent (pre-internet) era, you had to “buy ink by the barrel” to have a major influence on public opinion, but at the time the First Amendment was adopted, there were loads of small, sometimes partisan, printers expressing scandalous opinions about lots of folks.

      True as far as it goes (to be a big-shot, you really needed a railroad siding, and tank cars for your ink). But you will search in vain for a founding era printer who published an embittered pamphlet about his unknown-to-the-public ex-wife, and then circulated it throughout the colonies.

      The colonial press was less self-constrained than the 20th century press, but founding era publishers mostly stuck to public figures as their targets. What is happening now on the internet—and the scale with which it is happening—is without precedent that I know of. Do you know otherwise?

      Also, the publishing norms that began to develop during the late 19th century, and which continued until the internet arrived, were a widely-acknowledged improvement on those that came before. By the 1970s—thanks to technical advances which made typesetting and printing notably less expensive—the nation was aswarm with impecunious upstart ink-on-paper publishers. With near-uniformity, those conformed to less-scandalous standards. Many of them were hard to control legally, because they were judgment-proof, but but very few of them behaved in irresponsible ways now commonplace on the internet. None of them really matched today’s everyday outrages.

      1. Stephen, I think you over-simplify, but then so did I. But my point remains valid: Modern technology does not excuse judges from ignoring the free speech principles underying the 1A. Insulting people in writing and speech was ALWAYS offensive, but that is a price we as a society have decided is worth paying. I would rather we focus on discouraging powerful organizations from banning speech for not being “woke” than on preventing small-minded people from criticizing ex-spouses.

        1. VonSalzen, does the, “discouraging,” you favor involve government action? If so, I urge you to brush up on the, “free speech principles underlying the 1A.”

          And please, do not conflate, “. . . in writing and speech,” with publishing. Both custom and law have always separated publishing from other forms of speech, and exacted more discipline from publishers than from others. As an activity, internet posting generally involves the things which distinguish publishing from speech, so it cannot reasonably be forgiven its trespasses on the basis of comparison to rules governing speech.

  8. How about a simple explanation like the judges (like all other professions), are overworked, not infallible, not perfect.

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