Professor Eugene Volokh is an expert on First Amendment law, and one disagrees with him at one’s peril. Still, if even Homer sometimes nodded, then Professor Volokh too may occasionally make a mistake. I think he has done so in his recent comment on an ongoing defamation case in New York, Brummer v. Wey. The plaintiff in that action, Christopher Brummer (a professor at Georgetown Law School) is suing a wealthy entrepreneur, Benjamin Wey, and his businesses for attacks on Brummer posted on Wey’s “online tabloid” TheBlot. The case’s origins go back to late 2014, when Brummer served on an adjudicatory body of the Financial Industry Regulatory Authority (FINRA) that barred two stockbrokers from future involvement in the industry; Wey apparently has had dealings with them. In response to the FINRA action, TheBlot began what Brummer believes is a concerted attempt to destroy his reputation as a scholar and his standing as a decent person. The New York trial court has denied Wey’s motion to dismiss but the case has not yet gone to trial.
Professor Volokh is concerned about an unusual development in Brummer v. Wey, the trial court’s decision on June 6th to enjoin Wey and his corporate co-defendants from posting articles about Brummer to TheBlot while the suit is ongoing and requiring them to remove all existing posts. Brummer, who is African American, moved for a preliminary injunction in response to TheBlot’s publication of a series of articles and comments employing violent images and language in a racialized context. In one instance, an article about the FINRA action was prefaced by what appears to be an actual photograph of an early 20th century lynching, with photos of Brummer and others associated with FINRA superimposed and labeled “FINRA racists;” the text purports to quote one of the ousted stockbrokers (both of whom are African American) as saying that “FINRA deliberately picked Chris Brummer, unqualified moron to lynch us by the tree.” Another example is a comment attributed to an otherwise unknown “Bill:” “These FINRA motherf–––––s ruin lives! F––– them or shoot them? Both perhaps.” Brummer filed an affidavit accompanying his motion for an injunction describing his great fear about “harm to me and my family from Mr. Wey or generated by his grotesque calls to others to do harm.”
It’s obvious why Brummer, and the trial court judge for that matter, find TheBlot’s grotesque attacks deeply offensive, but the court’s decision to issue the injunction was surprising as a legal matter. The usual rule is that preliminary injunctive relief is not available in defamation actions, although many American courts will now enjoin the continued or repeated publication of statements after they have been held defamatory. The New York court’s decision appears out of step with this general practice and is in obvious tension with the bedrock First Amendment principle that only the most pressing governmental interest can justify a prior restraint on protected speech. Professor Volokh, an admirable defender of First Amendment freedoms, is alarmed about the implications of what he believes is the Brummer court’s failure adequately to respect those freedoms.
I agree with much of what Professor Volokh has written. But Professor Volokh also dismissed as constitutionally unacceptable the argument, advanced by the plaintiff’s lawyers but essentially ignored by the court, that it was appropriate and consistent with the First Amendment for the court to enjoin the specific speech in question because it presents a constitutionally-unprotected “true threat” to Brummer personally.
True threats, as the United States Supreme Court defines them, are “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” It isn’t necessary that the speaker “actually intend to carry out the threat;” the idea is that the law ought to be able to protect people “from the fear of violence” as well as “from the possibility” that the threatening speech will lead to someone (not necessarily the speaker) carrying out “the threatened violence.” As Justice Samuel Alito explained a couple of years ago, the First Amendment “does not protect true threats” because they “inflict great harm and have little if any social value.” There is, in other words, no reason to conclude that the Constitution forbids an injunction limited to speech that falls within the unprotected category of true threats.
In his comment, Professor Volokh does not directly disagree with this conclusion, but he doesn’t believe that TheBlot’s lynching photo-and-broadside is a true threat in the constitutional sense. He makes two points: first, in the article it is Brummer who is the racist and perpetrator of the (metaphorical) lynching of the two stockbrokers; and, second, “an accusation, however hyperbolic, that someone is guilty of lynching isn’t itself tantamount to a threat to lynch” that person. He goes on to give what he thinks is an analogous case, calling someone a Nazi “for being complicit as an Israel-supporting Jew in supposed crimes against Palestinians.”
At first glance, Professor Volokh’s argument seems logical, but its logic is abstract: A::B as C::D. Abstraction here is, however, a constitutional error. As the US Court of Appeals for the Second Circuit wrote less than a year ago: “Context is crucial to identification of a true threat. The context here bespeaks danger.” In the context of the tragic history and present-day reality of racism in this country, a speaker who employs the imagery and language of lynching in a virulent attack on an African American — and who juxtaposes his victim’s picture to the ghastly image of a lynching — has gone far beyond the hyperbole and caustic language protected by the First Amendment.
Lynching is our paradigmatic image of private racist violence against African Americans. TheBlot’s article was expression coolly calculated both to frighten its victim and to rouse in susceptible readers racist and potentially violent sentiments about Brummer. The fact that the article’s “argument” was that Brummer is the racist and lyncher is beside the point: racism is not logical, and in any event the accusation that the victims or racism are guilty of race hatred is a long-standing feature of American racist rhetoric. Professor Volokh’s hypothetical ignores the crucial importance of context: his imagined slur would not draw on the history of American racist violence that gives the image of lynching its frightening power.
Taking into account the contexts of American history and society, and of TheBlot’s hosting of attacks on Brummer laced with racial and violent imagery, I think the trial court in Brummer v. Wey can properly conclude that the lynching photo/article was a true threat, whatever Wey’s personal intentions about carrying through on the threatening message. The First Amendment allows government, and specifically the courts, to protect the victim of such a threat from the fear and the possibility of violence to himself or his family while the victim is pursuing a legal action against the person issuing — or insinuating — the threat.
The American legal system affords freedom of expression extremely broad latitude, and rightly so. Determining whether the First Amendment permits a court to issue any injunction restricting the Brummer defendants’ choices about what to say, at least in advance of trial, requires consideration of what Justice Harry Blackmun once termed “the broad right of the press to print” and “the very narrow right of the Government to prevent” expression for any reason. Blackmun wrote those words in an opinion dissenting from the Supreme Court’s refusal to permit an injunction against speech in the great Pentagon Papers Case, which is a reminder (if you agree, as I do, with the Court’s decision) how important it is to err on the side of speech. But true threats are not protected speech, and the First Amendment gives them no shelter.
For the moment, the defendants have obtained a stay of the trial court’s order, and Professor Volokh has expressed the hope that ultimately the appellate court will vacate the injunction “preferably by making clear that such an injunction violates the First Amendment.” I disagree: I think that the right outcome, in terms of fidelity to the First Amendment, is for the appellate court to modify the injunction so that it is a ban on those postings that, viewed realistically and in context, are true racist threats. The Constitution is not offended by relieving Brummer of the alarm he understandably feels at TheBlot’s intimations of violence while he pursues his case against Wey, and the legal processes of trial and appellate review should ensure that Wey’s right to engage in constitutionally protected speech is safeguarded.