The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I'd blogged about it when I was still working on it, but now it's out, here. The Introduction:
Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction such as this: "[Defendant] is permanently enjoined from publishing … any statements whatsoever with regard to the plaintiff."
It's hard to reconcile such an injunction (whether entered in a libel case or as a "personal protective order") with First Amendment precedents. The injunction isn't limited to speech within a First Amendment exception, such as libel or true threats. It is far from "narrowly tailored," which is often set forth as a requirement for the rare content–based anti–speech injunctions that are indeed permitted. Yet I have found over 200 such injunctions (almost all in the last ten years)—some as broad as that one, and others narrower but still overbroad—entered either in libel cases or in cases involving petitions to stop harassment or cyberstalking. And these 200 are likely just the tip of the iceberg, since such injunctions rarely lead to appeals, and thus are rarely made visible in searchable Internet databases.
Some injunctions have restricted speech criticizing exes and other family members. Others have restricted criticisms of businesses or professionals (lawyers, doctors, real estate agents, financial advisers) with whom speakers say they had a bad experience. Still others have restricted criticism of police officers, judges, and other government officials.
Some have banned all speech about the plaintiff, or all online speech about the plaintiff. Others have been narrower—for instance, banning all "derogatory" speech or all posting of photographs of the plaintiff—but were still not limited to speech that First Amendment law recognizes to be restrictable (such as libel or true threats or unwanted speech said to the plaintiff).
Many of these injunctions have focused on online speech. But the Court has made clear that online speech, and in particular speech on social media, is fully protected by the First Amendment, as much as is speech in newspapers or books or leaflets.
Unsurprisingly, most such injunctions involve either a defendant who was not represented by a lawyer, or a default judgment against a defendant who did not appear, so the First Amendment arguments against the injunctions were likely not effectively presented to the judge. Part I lays out the evidence on the injunctions that I've found.
When these injunctions do go up on appeal, they almost always get reversed, because they violate the First Amendment. Part II discusses the precedents on this, both from the U.S. Supreme Court and from state and federal appellate courts. I hope this Part (and the Article more broadly) will be especially useful to judges, lawyers, and even pro se litigants dealing with such cases, as well as to legal academics. I discuss state and federal appellate precedents there in more detail than is common for a law review article, so that it will be more useful for practical litigation.
But some courts have upheld such injunctions, based on two related theories. First, some courts have concluded that the First Amendment doesn't protect harassment, and that otherwise protected speech becomes unprotected harassment when it is said (especially when it is said often) with an intent to offend, embarrass, or harass. Second, some courts have concluded that the First Amendment doesn't protect such speech when it is on a matter of merely "private concern." I think these theories are inconsistent with First Amendment precedents, and Part III will discuss that.
Finally, Part IV will speculate why courts are doing this, and how it bears on broader debates about how the "cheap speech" created by the Internet has affected public discussion; how some judges might perceive their role in pragmatically resolving disputes; and how judges deal with litigants whom they see as irrational, and therefore as uncontrollable using normal tools such as civil damages liability.
Our legal system offers many remedies, however imperfect, for damaging speech about a person. One is the libel lawsuit, which may allow even a narrowly tailored injunction forbidding the defendant from repeating specific statements that have been found to libelous at trial. Another, in some states, is criminal libel law. A third, in other states and under federal law, is criminal harassment law or cyberstalking law, though that may raise its own First Amendment problems. And if Donna is writing derogatory things to Paul, rather than just about him, he may able to get a restraining order to make that stop.
But the injunctions I describe in this Article are not a permissible remedy: they restrict constitutionally protected opinions and constitutionally protected true statements of fact. Sometimes, they interfere with speech about government officials and other important figures. Sometimes, they interfere with speech on matters of public concern, such as business treatment of consumers or alleged criminal conduct. And even when they deal with what appear to be private disputes, they interfere with speech on what I call "daily life matters," which is likewise constitutionally protected.
Of course, persistent criticism, which may often be unfair and insulting, may understandably distress its targets. But, as the Supreme Court and lower courts have made clear, such speech cannot be suppressed even by damages awards, and certainly not by injunctions.