The Volokh Conspiracy

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Free Speech

Can Cardi B Get an Injunction Stopping Tasha K from Repeating Libelous Statements?

Yevhen V says likely yes.

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Singer Cardi B sued vlogger Tasha K for libel, and the jury came back with a verdict in Cardi B's favor (and a total damages award of over $4 million); the libelous statements included claims that Cardi B had herpes, had used cocaine, and had engaged in prostitution. Now Cardi B is seeking an injunction that would require Tasha K to remove all statements that the jury had found to be libelous, and to bar Tasha K from repeating those statements. (You can also read Tasha K's opposition.) Would such an injunction be constitutional?

Probably yes. In the 1800s and early 1900s, many courts had said that any injunction against libel is an unconstitutional "prior restraint"; civil liability and even criminal punishment for libel is allowed, but not an injunction.

But in recent decades, most states and most federal circuit courts have switched to allowing such narrowly targeted injunctions, if they are issued after a final determination (especially one at a jury trial) that the statements are indeed false and libelous. In particular, federal district courts in the Eleventh Circuit (where this case is being litigated) have taken the view that such injunctions don't violate the First Amendment; and Georgia courts have likewise held that the injunctions don't violate Georgia law. (To be valid, the injunction has to be consistent both with state law and with the federal First Amendment.) I discuss this in more detail in my Anti-Libel Injunctions article.

The Eleventh Circuit appellate court has not passed judgment on this, and Tasha K has said she would appeal. It's possible that the court will go along the view, accepted by a minority of state and federal courts, that such injunctions indeed violate the First Amendment. But the recent trend has been in favor of upholding the injunctions, again if they follow a judgment on the merits that the speech is libelous, and if they are limited to speech that had been found to be libelous.

Of course, the court might conclude that an injunction would be constitutionally permissible, but wouldn't make sense on the facts of the case. But my sense is that courts are generally open to such injunctions when the injunctions are constitutionally permitted, and when there seems to be a real likelihood that the defendant won't remove the libelous speech (or will repeat it) in the absence of the injunction.

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  1. According to the verdict sheet there was an award of $1,338,754.47 for litigation expenses. Seems high.

    1. Like how the House always wins in casinos...

      The real winners of lawsuits are lawyers.

  2. Cardi herself admitted to 'rolling johns', which certainly implies she has been a prostitute.

    After all, she's no singer.

    1. I've heard "johns" used in a much broader sense of any relationship or date.

    2. Question. Did these allegations hurt or help her record sales? If they helped, she owes Tasha K publicity fees. This libel lawyer scam is lame. It is a scame to generate lawyer fees from productive people.

      1. This was a strange case, and not remotely a scam. Libel against a public figure is a very difficult case to win. A big part of why Cardi B won here is because, after her lawyers reached out to Tasha K to correct the record, Tasha K went back on air and not only continued to repeat all of her libels, but also acknowledged on-air that she knew the info she was spreading about Cardi B was false, which is an incredibly dumb thing to do.

        Would have been very very very very easy for Tesha K to avoid all of this but she chose a stupid course of action and deserved to lose for that reason alone.

        1. I agree that they NY Times doctrine is unfair and crazy. It should be replaced by the journalism Code of Ethics as a standard of due care.

          1. Hi David. Serious question - what would your proposal mean for accountability for people who aren't journalists?

            1. I have addressed libel as wrong headed. There is no real harm from being insulted, as you can attest from being on the internet. The harm comes from acts based on these false allegations. I support liability for people who act on them, employers, spouses, clubs, churches, relatives who refuse to come for dinner anymore, licensing boards who even investigate, police departments who even investigate or so much as call the plaintiff. Get all costs from their personal assets. That includes all investigation costs or pain, such as anxiety. To deter.

              1. Beyond tort liability, any canceller should be cancelled. Lose all government privileges, exemptions, subsidies, funding, grants, loans. De accredit the school. Shut it down, and take its assets in civil forfeiture. All this should be allowed to be mandamused in a statute. To deter.

                1. Here is your counter example, still proving the law in failure. A nurse's shift was associated with extra-ordinary high mortality in intensive care patients. The nurse was fired. Out of fear of litigation, the firing hospital refused to tell the hiring hospital why. Result? America's most prolific serial killer. The sharing of facts should be immunized from litigation. That should include statistical data. Criminal investigations should be immunized probable cause.

    3. Seems odd that the person performing in this video would imagine their reputation to be lowered by a claim that they had herpes. When your reputation is already in the toilet how much additional damage can such a claim produce?

      https://m.youtube.com/watch?v=hsm4poTWjMs

  3. How about arranging things so that repeating the charge earns a new lawsuit, with the court saying it's bound by the jury verdict in the earlier case. So falsity need not be proven, only damages.

    Or does it already work like that?

    1. That certainly seems like a good process to me. Prove the recent libel or slander repeats the previous, get a repeat of the damages. But what if they can't pay? You always end up with government coercion.

  4. Suppose Tasha said Cardi NOW has herpes, having contracted it a week after the jury returned its verdict? Because that same week she started turning tricks? And also started using cocaine? I don't see how that could be enjoined on the basis of the jury verdict. But I'd guess that Cardi would win an even bigger damages award if she prevailed.

  5. The problem with an injunction of this sort is that the jury found a particular combination of words to be libelous given the facts presented. If the set of available facts change in the future, a different jury might not find these same words libelous. The injunction might also chill the vlogger’s speech beyond those specific words.
    Ordering her to take down the libelous statements makes sense, but it would be better to have another civil trial to deal with speech she makes in the future. If she continues to lose civil cases for the same libel, wouldn’t she start to see criminal charges for harassment?

    1. There's a balance of interests, though, and a court used due process to determine that the plaintiff was libeled by those specific claims. If the defendant thinks that new facts have emerged that change the legal conclusion, she could file a motion with the court explaining why it should vacate the injunction.

    2. From California Supreme Court in Balboa Island Village Inn v. Lemen: "Lemen argues that she cannot be enjoined from repeating the same statements found to be defamatory, because a change in circumstances might render permissible a statement that was defamatory, stating: 'A statement that was once false may become true later in time.' If such a change in circumstances occurs, defendant may move the court to modify or dissolve the injunction."  

  6. Thinking out loud here...if there's an anti-libel injunction, and defendant is accused of violating it, that would be a criminal trial with a higher burden of proof than the civil trial where the injunction was issued. Thus fairness should require that the truth issue be relitigated in the criminal-contempt trial, with the higher criminal standard.

    1. Why? The defendant in such a case has definite knowledge that the legal system sees the statement as defamatory. Collateral estoppel should prevent then from re-litigating the question. For a criminal trial, the question would be whether the defendant repeated a statement knowing that a court had issued an injunction against that person that prohibited making the statement. They can re-litigate the question in the context of appealing from the defamation judgment.

      1. Only one problem...it would give the defendant fewer protections than a defendant in a case of seditious libel. Plenty of state constitutions - and even the infamous Sedition Act in 1798 - made the jury in a criminal libel prosecution decide the truth or falsity of the contested statement.

        Why didn't it occur to earlier generations to get around this unfortunate technicality by simply starting with a civil trial, getting a verdict by a preponderance of the evidence, without criminal safeguards, and then using this verdict as the basis of subsequent contempt prosecutions, forbidding the criminal jury from even having reasonable doubts of the libelous nature of the contested statement?

        1. Or for that matter, not having a jury at all.

          1. Hmm...interesting argument. (And convincing, for me.)

  7. The LegalEagle video on this story helped reveal just how crazy TashaK was https://youtu.be/OPn7WEhUc6E

  8. Let's talk about Section 230, the elephant in the room, a dangerous, outdated law that amounted to nothing more than government sponsored cyber-terrorism against individuals.

    It is absolutely appalling that the so called "Professor" Eugene Volokh has DONE ABSOLUTELY NOTHING to help the USA address the increasingly common issue of cyber-stalking and online harassment. In fact, he is trying to make victims of cyber-stalking and cyber-harassment even more vulnerable by trying to strike down all legislation that would protect them.

    Rather, Eugene Volokh has tried his best to HARM victims of cyberstalking by trying to argue, incorrectly and foolishly, that online harassment and cyberstalking is "Free Speech".

    Eugene Volokh doesn't understand the nature of the internet and should not be opining dangerous statements on "Free Speech" when he hasn't experienced truly malicious cyber-stalking himself.
    His life experience is not adequate to be opining about "Free Speech" and online abuse, since he has not experienced online abuse and does not really understand the damaging (and permanent) potential of internet speech.

    Eugene Volokh, in his many "papers", completely ignores the impact of cyberbullying, cyber-harassment, doxing, and stalking to the VICTIMS of malicious mentally-ill cyber-stalkers and sociopaths. Instead, he works hard to protect the rights of these mentally ill criminals and leave victims with no legal recourse to regain their lives and stop this atrocious behaviour. In essence, Eugene basically supports the criminals.

    Who in their right mind thinks "Free Speech" should be abused by plainly malicious individuals who are often mentally ill and are purposely using the internet to harm the victims by revealing private, personal information (doxing) or slandering them online, or posting their personal private pictures?

    Rather than help the courts in the USA understand that cyber-harassment is NOT protected speech, Eugene Volokh has taken money ("bribes") from Google, Big Tech to peddle the false notion that harassment websites dedicated to tormenting a victim are "Free Speech" and "one-to-many speech."

    Plainly, Eugene Volokh's First Amendment absolutism is EXTREMELY dangerous for America because it allows cyberstalking, cyber-harassment, doxing, and online abuse to flourish.

    Eugene also tries to make it as difficult as possible for cyber-harassment victims to file a civil suit against their perpetrators using a "pseudonym", to protect their privacy from even further harm. Rather than sympathizing with the unfortunate and undeserved situation of the victims, Eugene tries to argue that for the victim to file pseudonymously would be somehow "unfair" to the malicious defendant, a psychopath who DESERVES to be held accountable for his criminal and harassing behaviour.

    Eugene Volokh reminds me of a wolf in sheep's clothing. He has an ulterior agenda apparently, to de-regulate Big Tech so they can maximize profits at the expense of making Americans totally unprotected from cyber-harassment, doxing, and cyber-stalking by mentally ill individuals online.
    You see, it's simple. Eugene advocates for no internet regulation, and ignores online abuse. This benefits Google and Big Tech, who don't have to pay fines for not removing harmful and abusive content. They save money, and perhaps pay Eugene kick-backs behind the scenes.
    Eugene has publicly admitted that his "Google is a publisher" paper is funded by Google. Way to go for impartiality. Don't bite the hand that feeds you, Eugene. Of course the paper magically "concludes" that Google is protected by First Amendment. Geez, did Eugene expect all of us to be blind?

    It is VERY highly likely that Eugene Volokh gets paid by Google and Big Tech behind the scenes. That's why all of his papers "happens" to fall on view that Big Tech should not be regulated, ever. This is clearly wrong, and dangerous.

    Refute me, Eugene Volokh. Everything I said was fact. This is my protected "Free Speech." You have no legal action against me, even if you wanted to.

    Worse of all, Eugene has attempted to DELETE and CENSOR my truthful posts ABOUT him as he found it "harassing", while denying the same recourse to thousands of REAL online harassment victims across the country and protecting the rights of their harassers. So Eugene has exposed his dishonesty and biased - if someone posts TRUTHFUL information ABOUT him that casts him in an unfavourable light, he WANTS it CENSORED, but when it happens to millions of other Americans, he claims they DO NOT deserve legal recourse and that the postings are FREE SPEECH.

    Tell me, what is Eugene Volokh's solution for victims of mentally ill cyber-stalkers who continuous post private, personal information about victims online in an attempt to harass, disturb, cause emotional distress, or control their victims? What is Eugene Volokh's solution for victims of these crimes to get the harassers to stop, get the harmful content removed, and allow the victims to return to their normal lives? Does he even give a shit? Does he even consider that the First Amendment may be outdated for the internet age, where anybody with any type of axe to grind or slight against an individual can post anything harmful online to affect the lives of the victims?

    The dangerous part of Eugene Volokh's analysis is he COMPLETELY ignores the mental impact to the victims of online harassment, he pretends like cyberstalking isn't even a thing. Free Speech absolutism without taking into account privacy interests, right of victims to be free from harassment, etc... is DANGEROUS. The result of Eugene Volokh's Free Speech Absolutism is that victims of malicious online harassment will NEVER be able to get legal recourse from their attackers, who can post any personal or embarrassing or private information with NO legal repercussion, maliciously, to ruin lives. This is apparently the world that Eugene Volokh wants.

    I'm sorry, but Eugene Volokh's First Amendment absolutist interpretation is simply dangerous for humanity and America, and is totally incorrect and one-sided. In Eugene's dangerous world, victims of cyber-harassment cannot ever get relief from their attackers, ever. That's how Eugene wants it to be, unless of course, the victim is himself.

    1. You could have just written "I don't understand what Section 230 is." and made your point in those 7 words instead of your entire rant of garbage amount to 'The government should punish speech it doesn't like', which you'll be all shocked pickachu face when Republicans use that standard to throw progressives in jail.

      1. Fafalone - I suppose YOU know what Section 230 is? There is more than ample evidence showing how Big Tech is hiding behind Section 230 to propagate harmful content on their platforms even when they know it's bad. Why should they be allowed to cause harm even when they have notice? Every industry in the world has tort liability, why is Big Tech the exception?

        Yes, I do think speech that purposefully harms, such as doxing, cyberbullying websites, cyber-stalking, SHOULD be regulated. What's fucken wrong with that? Are you saying it's ok for online criminals to harm people and get away with it under the disguise of "Free Speech"? Now that would be unfair and fucked up. That's just allowing for criminal behaviour.

        1. I oppose Section 230 as no longer necessary to protect an immature industry. These social media are now uttilities in evey sense of the word.
          Liability should be for people eho act on the cyberstalking. Cyberstalking should be a justification for an ass kicking with metal rods, not for endless lawyer make work. Legal liability is ineffective.

      2. Yes, I do think malicious online harassment should be a crime and offenders should be locked up. Nobody has the right to use the internet as a weapon to ruin someone else's life just because the other person doesn't want to have anything to do with the loser, mentally ill cyberstalker.

      3. Why should mentally ill cyberstalkers have unlimited free reign to harass victims and to force their way into someone's life even after the person has clearly told them they want to move on? Why should these deviant sociopaths be given so much constitutional protection? It doesn't make any sense. You might as well legalize murder and other crimes as well.

        1. All webpages made by the mentally ill cyberstalker that contains the victim's names should be forcibly removed or de-indexed from search engine to protect the victim from further harassment. That's basic common sense. For some weird reason many retarded Americans don't see it this way.

      4. Why should your "Freedom of Speech" be so absolute as to impede on the rights of others? Others have rights too, including the right to be free from your interference, the right to be free from harassment and stalking, and right to be free from malicious interference. Why should the cyberstalker's free speech rights supercede all other rights? This doesn't make any sense.

        It is apparent Eugene Volokh gets money from Big Tech to peddle the view that "cyberstalking doesn't exist" and "the free speech of cyberstalkers" should be protected.

  9. I don't know who these people are and honestly don't care. Pop culture today is pretty disgusting...all started when the left forced MTV to start playing "ho" videos

    1. Cardi B is not sexy. She is a sexual turn off, like something disgusting.

  10. It is absolutely disgusting, dishonest, and appalling that the so called "Professor" Eugene Volokh has DONE ABSOLUTELY NOTHING to help the USA address the increasingly common issue of cyber-stalking and online harassment. In fact, he is trying to make victims of cyber-stalking and cyber-harassment even more vulnerable by trying to strike down all legislation that would protect them.

    Rather, Eugene Volokh has tried his best to HARM victims of cyberstalking by trying to argue, incorrectly and foolishly, that online harassment and cyberstalking is "Free Speech". He completely ignores the reality that mentally ill sociopaths, stalkers, and harassers purposely use the Internet to try to stalk and ruin lives of innocent victims.

    Eugene Volokh doesn't understand the nature of the internet and should not be opining dangerous statements on "Free Speech" when he hasn't experienced truly malicious cyber-stalking himself.
    His life experience is not adequate to be opining about "Free Speech" and online abuse, since he has not experienced online abuse and does not really understand the damaging (and permanent) potential of internet speech.

    Eugene Volokh, in his many "papers", completely ignores the impact of cyberbullying, cyber-harassment, doxing, and stalking to the VICTIMS of malicious mentally-ill cyber-stalkers and sociopaths. Instead, he works hard to protect the rights of these mentally ill criminals and leave victims with no legal recourse to regain their lives and stop this atrocious behaviour. In essence, Eugene basically supports the criminals.

    Who in their right mind thinks "Free Speech" should be abused by plainly malicious individuals who are often mentally ill and are purposely using the internet to harm the victims by revealing private, personal information (doxing) or slandering them online, or posting their personal private pictures?

    Rather than help the courts in the USA understand that cyber-harassment is NOT protected speech, Eugene Volokh has taken money ("bribes") from Google, Big Tech to peddle the false notion that harassment websites dedicated to tormenting a victim are "Free Speech" and "one-to-many speech."

    You can see that many of Eugene Volokh's papers are funded by Google (https://www.theatlantic.com/technology/archive/2012/05/should-googles-search-results-be-protected-by-the-first-amendment/257468/). He is not a unbiased legal analyst, but rather someone likely to be taking direct bribes from Google and Big Tech to pander incorrect and dangerous Constitutional interpretations that falsely argue for lack of regulation for Big Tech. In return, Big Tech saves money and pays Eugene Volokh a kickback.

    Plainly, Eugene Volokh's First Amendment absolutism is EXTREMELY dangerous for America because it allows cyberstalking, cyber-harassment, doxing, and online abuse to flourish.

    Eugene also tries to make it as difficult as possible for cyber-harassment victims to file a civil suit against their perpetrators using a "pseudonym", to protect their privacy from even further harm. Rather than sympathizing with the unfortunate and undeserved situation of the victims, Eugene tries to argue that for the victim to file pseudonymously would be somehow "unfair" to the malicious defendant, a psychopath who DESERVES to be held accountable for his criminal and harassing behaviour.
    Eugene Volokh reminds me of a wolf in sheep's clothing. He has an ulterior agenda apparently, to de-regulate Big Tech so they can maximize profits at the expense of making Americans totally unprotected from cyber-harassment, doxing, and cyber-stalking by mentally ill individuals online.

    You see, it's simple. Eugene advocates for no internet regulation, and ignores online abuse. This benefits Google and Big Tech, who don't have to pay fines for not removing harmful and abusive content. They save money, and perhaps pay Eugene kick-backs behind the scenes.

    Eugene has publicly admitted that his "Google is a publisher" paper is funded by Google. Way to go for impartiality. Don't bite the hand that feeds you, Eugene. Of course the paper magically "concludes" that Google is protected by First Amendment. Geez, did Eugene expect all of us to be blind?

    It is VERY highly likely that Eugene Volokh gets paid by Google and Big Tech behind the scenes. That's why all of his papers "happens" to fall on view that Big Tech should not be regulated, ever. This is clearly wrong, and dangerous.

    Refute me, Eugene Volokh. Everything I said was fact. This is my protected "Free Speech." You have no legal action against me, even if you wanted to.

    Worse of all, Eugene has attempted to DELETE and CENSOR my truthful posts ABOUT him as he found it "harassing", while denying the same recourse to thousands of REAL online harassment victims across the country and protecting the rights of their harassers. So Eugene has exposed his dishonesty and biased - if someone posts TRUTHFUL information ABOUT him that casts him in an unfavourable light, he WANTS it CENSORED, but when it happens to millions of other Americans, he claims they DO NOT deserve legal recourse and that the postings are FREE SPEECH.
    Tell me, what is Eugene Volokh's solution for victims of mentally ill cyber-stalkers who continuous post private, personal information about victims online in an attempt to harass, disturb, cause emotional distress, or control their victims? What is Eugene Volokh's solution for victims of these crimes to get the harassers to stop, get the harmful content removed, and allow the victims to return to their normal lives? Does he even give a shit? Does he even consider that the First Amendment may be outdated for the internet age, where anybody with any type of axe to grind or slight against an individual can post anything harmful online to affect the lives of the victims?

    The dangerous part of Eugene Volokh's analysis is he COMPLETELY ignores the mental impact to the victims of online harassment, he pretends like cyberstalking isn't even a thing. Free Speech absolutism without taking into account privacy interests, right of victims to be free from harassment, etc... is DANGEROUS. The result of Eugene Volokh's Free Speech Absolutism is that victims of malicious online harassment will NEVER be able to get legal recourse from their attackers, who can post any personal or embarrassing or private information with NO legal repercussion, maliciously, to ruin lives. This is apparently the world that Eugene Volokh wants.
    I'm sorry, but Eugene Volokh's First Amendment absolutist interpretation is simply dangerous for humanity and America, and is totally incorrect and one-sided. In Eugene's dangerous world, victims of cyber-harassment cannot ever get relief from their attackers, ever. That's how Eugene wants it to be, unless of course, the victim is himself.

    Volokh, you have no legal action against me because I'm using the First Amendment that you fiercely advocate against you to expose the truth.

    1. "Volokh, you have no legal action against me because I'm using the First Amendment that you fiercely advocate against you to expose the truth."

      ...and you believe Prof. Volokh *should* be able to have you arrested for that? You don't see the irony in that? How that will backfire against those without political power in the hands of conservatives? Good luck writing rants like that if S230 is abolished and only corporate-approved, lawyer-cleared speech is allowed on the internet.

      I'm not into allowing the government to persecute BIPOC and others with little political power too, where can I collect my Google Bux for realizing without free speech, the marginalized are disempowered.

      Stop advocating for the persecution of marginalized persons Holden.

      1. Fafalone, the repeal of Section 230 will not affect my ability to tell the truth about Volokh, reveal to the world that he takes bribes from Big Tech to purposefully ignore the harms of online abuse. Eugene is a public figures, these are public issues, and he has availed himself to public discussions regarding this topic. He has no legal recourse against me, as much as he wants to.

        Would Eugene Volokh care to respond and tell the world why you systematically ignore online abuse, doxing, cyber-stalking, and cyber-harassment as real crimes that they are, destroying victims' lives and allowing online criminals, stalkers, mentally-ill pervs and deviants to continue to interfere with the lives of victims by using the internet?

        Why do you systematically ignore these problems in your analysis, and try to do everything you can to leave victims of cyber-stalking with no legal recourse? Why are you trying to get rid of all laws that would criminalize cyberharassment for the crime that it is?

        Why are you trying to harm victims and leave them with no solution for their suffering? Why are you so obsessed with the idealism of Free Speech that you are blinded to the reality that other people have rights too that deserve to be balanced against Speech, like Right to Privacy, Right to be Free From Harassment and Stalking, and other human rights? Why do you purposefully ignore this? Is Google giving you money to ignore this on purpose?

  11. Would this so called "Professor" Eugene Volokh care to respond and tell the world why you systematically ignore online abuse, doxing, cyber-stalking, and cyber-harassment as real crimes that they are, destroying victims' lives and allowing online criminals, stalkers, mentally-ill pervs and deviants to continue to interfere with the lives of victims by using the internet?

    Why do you systematically ignore these problems in your analysis, and try to do everything you can to leave victims of cyber-stalking with no legal recourse? Why are you trying to get rid of all laws that would criminalize cyberharassment for the crime that it is?

    Why are you trying to harm victims and leave them with no solution for their suffering? Why are you so obsessed with the idealism of Free Speech that you are blinded to the reality that other people have rights too that deserve to be balanced against Speech, like Right to Privacy, Right to be Free From Harassment and Stalking, and other human rights? Why do you purposefully ignore this? Is Google giving you money to ignore this on purpose?

    1. The solution is an ass kicking. You want worthless lawyer make work. Most cyberstalkers are judgment proof.

      Volokh does need to disclose his funding to improve his credibility.

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