The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(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.)
I also suspect that many of the trial judges who entered these injunctions operated with a particular attitude: Our job is to solve problems stemming from human relationships—deal with petty personal hostility that can damage people's lives and cause potentially violent friction—and the injunction is a useful, flexible tool for such problem-solving.
First Amendment doctrine sometimes views injunctions against speech as comparable to statutory speech restrictions—to repeat Justice Black's formulation, "we look at the injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down." And sometimes it views injunctions against speech as "prior restraints" that are more constitutionally troublesome than statutory speech restrictions, in part because of the discretion they vest in a judge.
But the problem-solving attitude takes a different view, though usually just implicitly: An injunction, the theory goes, is a sensible approach because it can be well tailored to the particular problems of the relationship. Of course a statute banning anyone from mentioning anyone else online would be unconstitutional. Of course a statute banning anyone from disparaging anyone else would be unconstitutional. Even a narrower statute, such as a ban on disparaging one's ex-spouse on social media, would be unconstitutional. An injunction, though, can both focus on a speech about a particular person and take into account the likely harm of the speech, the likely value of the speech, and the likely availability of narrower speech restrictions.
For instance, say a judge is facing a defendant who seems to be bent on disparaging a family member or an ex-lover or a former business partner.
- The judge may look at the past statements, conclude that they are likely false and defamatory, and therefore conclude that future criticisms by this defendant of this plaintiff are likely to be harmful (because they will likely be libelous, perhaps as demonstrated by a finding that some past statements were libelous) and valueless (because they will likely be false).
- The judge may observe that the statements are about purely personal grievances, and therefore conclude that even future statements that aren't false (they are true, or opinions) are likewise likely to be of modest First Amendment value (because they will almost certainly be speech on matters of purely private concern).
- As I'll discuss in more detail below, the judge may conclude that the defendant is obsessed, so restrictions on repeating only particular statements found to be defamatory would lead the defendant to just make up more falsehoods.
- Or the judge may conclude that the defendant is irrational, so restrictions on all false and defamatory statements would be futile, because the defendant will sincerely (but unreasonably) believe that his accusations aren't false.
Justice Stevens expressed some similar thoughts, though as to much narrower injunctions (and injunctions where the content of the speech was clearly of high First Amendment value). In Madsen v. Women's Health Center, Inc., Justice Stevens voted to uphold an injunction setting up bubble zones outside abortion clinics, but with language that would have applied even more broadly:
Unlike the Court, … I believe that injunctive relief should be judged by a more lenient standard than legislation….
[L]egislation is imposed on an entire community, regardless of individual culpability. By contrast, injunctions apply solely to an individual or a limited group of individuals who, by engaging in illegal conduct, have been judicially deprived of some liberty—the normal consequence of illegal activity. Given this distinction, a statute prohibiting demonstrations within 36 feet of an abortion clinic would probably violate the First Amendment, but an injunction directed at a limited group of persons who have engaged in unlawful conduct in a similar zone might well be constitutional… .
In a First Amendment context, as in any other, the propriety of the remedy depends almost entirely on the character of the violation and the likelihood of its recurrence. For this reason, standards fashioned to determine the constitutionality of statutes should not be used to evaluate injunctions.
On the other hand, even when an injunction impinges on constitutional rights, more than "a simple proscription against the precise conduct previously pursued" may be required; the remedy must include appropriate restraints on "future activities both to avoid a recurrence of the violation and to eliminate its consequences." Moreover, "[t]he judicial remedy for a proven violation of law will often include commands that the law does not impose on the community at large." As such, repeated violations may justify sanctions that might be invalid if applied to a first offender or if enacted by the legislature.
In this case, the trial judge heard three days of testimony and found that petitioners not only had engaged in tortious conduct, but also had repeatedly violated an earlier injunction. The injunction is thus twice removed from a legislative proscription applicable to the general public and should be judged by a standard that gives appropriate deference to the judge's unique familiarity with the facts.
Of course, Justice Stevens was talking about narrow injunctions on speech in a particular place, aimed at causing harms unrelated to the content of their speech (such as blocked entrances). I doubt that Justice Stevens would have endorsed categorical "stop talking about the plaintiff" restrictions. Still, there is a logical link: Justice Stevens is arguing that,
- Injunctions should be viewed more favorably than normal criminal or civil prohibitions, rather than as presumptively less defensible prior restraints.
- Judicial discretion should likewise be viewed positively, as a tool for better tailoring, rather than negatively, because of the fear of excessive discretion.
- As a result, even if a categorical prohibition (e.g., no protesting within 36 feet of an abortion clinic) is invalid, an injunction entered against a particular set of defendants is proper.
Justice Stevens's view, it seems to me, was rightly rejected by all the other Justices in Madsen. But I think it nonetheless appeals to many trial court judges, and may explain why they issue orders that, under the orthodox view—"we look at the injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down"—would be clearly unconstitutional.