Contributor, The Volokh Conspiracy

When may a court order a defendant to stop saying allegedly false and defamatory things about a plaintiff? This generally can’t happen before trial, in a preliminary injunction based on mere “likelihood of success on the merits.” See, e.g., Universal Amusement Corp. v. Vance (1980); Hill v. Petrotech Resources Corp. (Ky. 2010); Auburn Police Union v. Carpenter (1st Cir. 1993). Speech can’t be restricted simply on the grounds that a judge thinks it’s likely to be found constitutionally unprotected at trial. But once there’s a trial and a finding on the merits that speech is false and defamatory, may the court ban repetition of such speech?

Historically, the answer has been “no,” see, e.g., Brandreth v. Lance (N.Y. Ct. Chanc. 1839); even when punishments for libelous speech, including criminal punishment as well as civil liability, were routine and liability relatively easy to show, injunctions against libel were generally forbidden. But in recent decades, many courts have been more open to such injunctions, once speech has been found to be defamatory. The Supreme Court has allowed injunctions against speech found to be constitutionally unprotected obscenity and constitutionally unprotected forms of commercial advertising; lower courts have mostly said this should apply to libel as well, though the Supreme Court has not resolved that question.

Just last Friday, the Seventh Circuit had two interesting — though not dispositive — opinions on the matter, in McCarthy v. Fuller. First, from Judge Posner’s panel majority opinion (some paragraph breaks added):

The Bill of Rights speaks with its characteristic brevity in prohibiting in the First Amendment “abridging the freedom of speech” and the Supreme Court has interpreted the prohibition to forbid among other things “prior restraints,” although there are exceptions such as where national security could be endangered by the speech sought to be enjoined. “Prior restraint” is just a fancy term for censorship, which means prohibiting speech before the speech is uttered or otherwise disseminated.

This has led to a belief in some quarters that defamation, which is a type of speech, can never be enjoined. The problem with such a rule is that it would make an impecunious defamer undeterrable. See Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 351 (Cal.2007). He would continue defaming the plaintiff, who after discovering that the defamer was judgment proof would cease suing, as he would have nothing to gain from the suit, even if he won a judgment.

It is beyond unlikely that Fuller and Hartman can pay what the judge has ordered them to pay the plaintiffs. They will be broke, and if defamation can never be enjoined, they will be free to repeat all their defamatory statements with impunity. McCarthy and Langsenkamp will have no remedy except to sue for damages and obtain another money judgment that they won’t be able to collect.

We note in this regard Judge Wellford’s opinion in Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.1990), which announced the court’s holding on whether to grant an injunction against defamatory statements. He said he’d “grant a narrow and limited injunction to prohibit [the defendant] from continuing and reiterating the same libelous and defamatory charges he and his company have made against [the plaintiff]…. [A]n injunction is necessary to prevent future injury to [the plaintiff’s] personal reputation and business relations. I, however, would limit the application of such injunction to the statements which have been found in this and prior proceedings to be false and libelous.”

Most courts would agree with Judge Wellford that defamatory statements can be enjoined — see cases cited in Balboa Island Village Inn, Inc. v. Lemen — provided that the injunction is no “broader than necessary to provide relief to plaintiff while minimizing the restriction of expression.” The Supreme Court, however, has not yet addressed the issue, though it has permitted injunctions preventing other types of scurrilous speech. See, e.g., Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973) (upholding an order prohibiting advertisements found to constitute gender-based discrimination); Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) (upholding an injunction that prohibited distributing materials found to be obscene).

Now, from Judge Sykes’s concurrence (some paragraph breaks added):

A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963), and “permanent injunctions — i.e., court orders that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech — making any publication of the suppressed speech punishable as contempt — is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931).

Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] … the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594 (7th Cir.2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172 (2d Cir.2001); Kramer v. Thompson, 947 F.2d 666 (3d Cir.1991); Comm. for Creative Non–Violence v. Pierce, 814 F.2d 663 (D.C.Cir.1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.”

The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of defamatory newspapers, magazines, or other periodicals.

An emerging modern trend, however, acknowledges the general rule but allows for the possibility of narrowly tailored permanent injunctive relief as a remedy for defamation as long as the injunction prohibits only the repetition of the specific statements found at trial to be false and defamatory. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky.2010); Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339 (Cal.2007); Sid Dillon Chevrolet v. Sullivan, 559 N.W.2d 740 (Neb.1997); Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1 (Minn.1984); Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga.1975); O’Brien v. Univ. Cmty. Tenants Union, Inc., 327 N.E.2d 753 (Ohio 1975); see also Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.1990) (Wellford, J., concurring in part and dissenting in part); id. (Hull, J., joining Judge Wellford’s opinion on this question). These cases appear to draw general lessons from the Supreme Court’s decisions in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), and Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957). I’m not sure I agree with this modern trend.

Pittsburgh Press upheld an order prohibiting a newspaper from organizing its classified advertising section in a way that allowed employment ads to discriminate on the basis of sex — for example, by having separate columns for “Male Help Wanted” and “Female Help Wanted.” n Kingsley Books the Court upheld an injunction prohibiting the distribution of a particular booklet found to be obscene after a full trial.

Pittsburgh Press and Kingsley Books arose in distinctive settings that make it difficult to map their holdings onto defamation law. Perhaps most notably, Pittsburgh Press did not address an injunction at all, but instead involved a regulatory order issued by a municipal commission that lacked the power to punish by contempt. And the type of speech at issue in Kingsley — an obscene booklet — suggests to me that some caution is in order before trying to extrapolate a general rule.

Defamation is materially different from obscenity. There’s a meaningful distinction between enjoining the distribution of a particular pamphlet once it’s been found to be obscene and enjoining a person in perpetuity from uttering particular words and phrases.

Defamation by its nature is highly contextual. A statement that is defamatory in one circumstance, time, or place might not be defamatory in another circumstance, time, or place. A permanent injunction as a remedy for defamation does not account for constantly changing contextual factors that affect whether the speech is punishable or protected. If factual circumstances change in a way that affects the defamation calculus, the person enjoined must risk contempt or seek the court’s permission to speak. As the Court said emphatically in Near, “[t]his is the essence of censorship.”

The emerging trend, moreover, is far from an inexorable movement toward a new doctrine. In a thoughtful opinion, the Third Circuit predicted that the Pennsylvania Supreme Court would not relax the general rule that equity will not enjoin a libel. Kramer, 947 F.2d at 677–79. Similarly, the Texas Supreme Court has recently held, also in a thorough and thoughtful opinion, that a permanent injunction as a remedy in a defamation case is an impermissible prior restraint on speech. See Kinney v. Barnes, 443 S.W.3d 87 (Tex.2014). Kinney was decided as a matter of state constitutional law, but the court noted that the state constitution’s free-speech guarantee is governed by First Amendment standards, at least on this particular question.

Finally, in 2004 the Supreme Court granted certiorari in Tory v. Cochran to decide whether a permanent injunction is a constitutionally permissible remedy in a defamation case, “at least when the plaintiff is a public figure.” But the Court never reached the merits. The plaintiff died after the case was orally argued, so the Court summarily vacated the injunction, which had “lost its underlying rationale.”

The majority reversed the particular injunction issued by the district court because the injunction was overbroad — the injunction wasn’t limited to speech that was found to be libelous — and remanded for the district court to consider whether to issue a narrower injunction. The concurrence would have thrown out the injunction with no opportunity for the district court to issue a narrower injunction.