Overbroad Injunctions Against Speech

Why Are Some Courts Issuing Overbroad Injunctions Against Speech? Part 2, Judges as Flexible Problem-Solvers

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.)

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.

  1. 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).
  2. 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).
  3. 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.
  4. 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,

  1. Injunctions should be viewed more favorably than normal criminal or civil prohibitions, rather than as presumptively less defensible prior restraints.
  2. Judicial discretion should likewise be viewed positively, as a tool for better tailoring, rather than negatively, because of the fear of excessive discretion.
  3. 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.


NEXT: Today in Supreme Court History: March 11, 1936

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  1. Wouldn’t the more constitution respecting approach be to simply punish the violation, and inform the person that future violations will be met with escalating penalties?

  2. My take on Justice Steven’s thesis is quite different.

    First, abortion and free speech are both “Congress shall make no laws” rights — i.e. protected from *governmental* interference, not from *citizen* interference. Remember that Henry Wade was the District Attorney of Dallas County, Texas — sued in that capacity — and not just some random pro-life dude.

    Second, why should Ann Coulter have any more right to have an abortion without third party disruption than to give a speech without third party disruption?

    In other words, what is the difference between Operation Rescue shutting down abortion clinics in the 1990s and Antifa shutting down conservative speeches today? In both cases it was a non-governmental actor organizing mass action to make it impossible to exercise the protected right.

    Hence I like the idea of Justice Stevens idea applied to academia — members of ANTIFA or BLM who have engaged in illegal activity should be summarily arrested on sight if they attend future protests. After all, freedom of speech (explicitly mentioned in the Constitution) is at least as important a right as having an abortion.

    1. Actually, there was a big difference between Operation Rescue and ANTAFA/BLM — Operation Rescue didn’t light things on fire and Operation Rescue wasn’t killing cops.

      For those too young to remember, in the early 1990s there were about five (competing) storefront abortion clinics along Beacon Street in Brookline (just across the city/county line from Boston). Operation Rescue protesters were arrested in the hundreds, but other than the police vehicles messing up traffic on Beacon Street (a major — quite busy — route out of Boston, there was no violence.

      John Salvi was an outlier — he was crazy, believing that the Mafia, the Klan and the Masons were persecuting Catholics — although conservative speakers have not-insignificant security details to deal with specific individuals.

      That the cops actually made mass arrests and that there wasn’t the violence we see today. And reality is that had they burned the buildings down, the clinics wouldn’t have remained open.

      1. You are over-generalizing about abortion protesters. It is true that some protesters don’t do anything to interfere with the operation of clinics.

        But plenty of protesters do. Indeed, this is actually something they have in common with a lot of protesters and protests. While we think about protests as speech that attempts to persuade people, oftentimes a rousing protest convinces members of the crowd that they have the right to do something that nobody has the right to do, which is physically shut down whatever it is they are protesting. It’s the thinking that said, in the 1960’s, that instead of demonstrating outside the college administration building, students should be able to occupy it. It’s the thinking that said, instead of picketing the Minneapolis police station, protesters could burn it down. And it’s the thinking that says, instead of expressing their opposition to abortion outside a clinic, protesters could try and stop abortions from taking place there.

        No protest has the right to do that. And lots of protests try.

        And that’s fundamentally the problem with a lot of abortion protesters. The constitutional equilibrium is that they should be able to demonstrate and express to everyone who works or does business at the clinic that they feel that what goes on in the clinic is murder, but they should not be able to stop or intimidate a single person from lawfully transacting business at the clinic. That means no blocking entrances, and no surrounding people who don’t want to talk to them. (More philosophically, it means that when they call what they do “sidewalk counseling”, they are liars. They have no counselor-patient relationship with the people they are walking up to. “Unwelcome meddling” is a more accurate description.)

        Some abortion protesters, indeed, act properly at clinics. They stand outside and pray, hold signs, chant slogans. But many others think they have the right to try and actually stop people from performing and getting abortions. A few take it to the level of physical violence, just like a few people at protest rallies throw bricks and Molotov Cocktails, but even many who don’t use that sort of violence nonetheless have no respect for the principle that they don’t get to stop people from having abortions, only protest the practice.

        As I said, this is the standard problem of protesters. Protest is protected as speech, not as stopping a lawful activity. Protesters often don’t see it that way.

  3. I am going to try to detach the general First Amendment issue from the specific issue of abortion.

    In general, it seems to me that people who have been found liable of something subject to criminal penalties – criminal libel, or violating a prior relevant court order – CAN be treated differently from people with no prior history. After all. If you can punish something by putting someone in jail where they’d be completely incommunicado, why can’t you punish them with the much milder restraint of holding them incommunicado from or about specific people.

    So while I wouldn’t go as far as general statements that injunctions are always teviewed more leniently than statutes, it seems to me that in specific contenxts, particularly when one is sealing with a recidivist who has disregarded prior court orders, this could be the case.

    I think context matters. Just as a mafia don’s statements get interpreted differently from a member of the general public’s, a person with a history, particularly a long one and/or one involving disobeying prior less drastic orders, also gets treated differently from a member of the general public.

    The First Amendment doesn’t require the law to be completely impotent in the face of repeated defiance.

    1. But the 14th Amendment mandates the “equal protection of the laws” and my point is that the law seems to only protect the left.

      I think that someone who has already disrupted one conservative event should be prevented from disrupting a second, third, and fourth…

    2. Aren’t injunctions usually civil, though? In a criminal trial you might be sentenced to never do this or that, but only after a criminal trial had convicted you. Civil standards for conviction are lower than criminal precisely because they’re NOT supposed to involve risk of losing any of your civil liberties.

      Correct me if I’m wrong, but in the US at least, isn’t defamation strictly a civil matter?

      1. Civil standards for conviction are lower than criminal precisely because they’re NOT supposed to involve risk of losing any of your civil liberties.

        That’s never been quite correct with respect to injunctions, which have a long history dating back to courts of equity.

      2. Nothing prevents courts from holding that the First Amendment requires a higher evidentiary standard for prospective injunctive relief from recidivists, much as they held that the First Amendment requires a higher evidentiary burden for libel of public figures.

        If the First Amendment requires a higher burden of proof for injunctions, the remedy is to require the higher burden, not to say injunctions can’t be done because the traditional burden is lower.

    3. Defamation is civil, not criminal. So the analogy does not work.

      Though if defamation was a criminal offense, that would be an interesting proposition.

      1. This simply isn’t the case. As Professor Volokh has mentioned multiple times, including in the article he is serializing here, a substantial minority of states have criminal libel laws. These laws have repeatedly been found constitutional, and they have getting increased enforcement attention recently. You absolutely can put people in prison for libel. So the analogy is a perfectly good one.

        The evidentiary burden for criminal libel is higher than for civil libel. Nothing prevents the courts from holding that the First Amendment requires a similarly higher evidentiary burden for prospective injunctive relief, much as the Supreme Court held that libel of public figures requires a higher evidentiary burden (the “actual malice” standard) than traditional common law libel.

  4. Stevens once agonized over the question of whether we should send fighters on a mission specifically to kill a very important enemy military leader (Admiral Yamamoto), who had planned operations resulting in thousands of American deaths. But he had no such qualms about sending those fighters out every day to kill random enemy military members. IOW, he only worried about the ethics of military action when he knew the target’s name, because the target was someone important enough to really make a difference in the war.

    That inverted sense of ethics also often showed in his SC opinions…

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