Contributor, The Volokh Conspiracy

[UPDATE 12/4/17: It turns out that the customers weren’t given notice of the impending hearing on the order until about 1:45 p.m. or 2:25 p.m. on Nov. 30, by a text message from the plaintiff to one of the defendants. The complaint and the motion for the order were filed at 2:58 p.m. that same day, and the order itself was issued — at a hearing at which the defendants were apparently not represented — at 4:29 p.m. the same day. Plaintiffs’ counsel reports that the defendants were told in the days before that some lawsuit was forthcoming, but it seems that they didn’t learn the details needed to potentially defend themselves until an hour or so before the hearing began, or two to three hours before the order was issued.]

Consumers sharply criticize a business online, alleging it has mistreated them: They “accus[e] staff at the [business] of groping [one of them] and assaulting both of them before kicking them out … and then egging on two patrons to attack them.” (The business later responds by posting video that includes “surveillance camera footage that the [business] said contradicts their claims”; see this Cleveland.com story (Cory Shaffer) and this one (Anne Nickoloff).)

The consumers have millions of social media followers. A small fraction of the followers reportedly reacts by posting hundreds of negative reviews of the business, by sending the business death threats or (likely as to just one or two of the followers) by hacking the business’s website. May the business get a court order blocking the consumers from saying anything about the business?

That’s what’s happening in Cleveland, where the owners of the Barley House bar are suing two popular YouTube posters, Alissa Violet and FaZe Banks. Based on the Barley House’s allegations — apparently without any appearance by the defendants — the court concluded on Thursday (according to the court docket, the day the complaint was filed) that

enjoining Defendants from disseminating false or misleading information related to Plaintiffs, their employees, and their patrons is reasonable to end Defendants cyber-bullying campaign, and is no greater than is required for protection of Plaintiffs, their employees, and their patrons, and does not impose undue hardship.

And the court went to bar “Defendants and all persons in active concert with the Defendants” from:

1. … in any manner, either directly or indirectly, … disseminating false or misleading information about Plaintiffs, their employees, their related entities, and their patrons.

2. … publishing on social media platforms any statements, videos, or images concerning Plaintiffs, their employees, their related entities, and their patrons.

3. … continuing to engage in their cyber-bullying and cyber-attack campaigns against the Barley House, its owners, employees, and related entities, including any and all attempts to interfere with or disrupt the Barley House’s business operations, website functionality or use, or social media accounts.

4. … enter[ing] or interfer[ing] with the business or place of employment of Plaintiffs or their related entities.

5. … be[ing] present within 500 feet of the Barley House, any of its owners, its employees, or its related entities.

6. … hav[ing] any contact with the Barley House, any of its owners, its employees, or its related entities. Contact includes, but is not limited to, landline, cordless, cellular, or digital telephone; text; instant messaging; fax; e-mail; voicemail; social networking media; blogging; writing; electronic communications; or communications by any other means directly or through another person.

The order lasts for 14 days but contemplates the possibility of being extended after that; a follow-up hearing is scheduled for Dec. 13.

Yet the order seems to clearly violate the First Amendment:

A. To begin with, the order isn’t limited to constitutionally unprotected speech, such as defamation, true threats or intentional incitement of imminent criminal attack. It bars the defendants (and whoever is “in active concert” with them) from “any [social media] statements, videos, or images concerning Plaintiffs, their employees, … and their patrons.” It also bars “cyber-bullying” and “cyber-attack” campaigns, without defining where criticism becomes “bullying” and “attack,” though that is likely redundant of the categorical ban on all social media “statements … concerning Plaintiffs.” And it bans “contact with the Barley House,” which is defined broadly enough to include “social networking media” and “blogging.”

Yet whatever power a court may have to enjoin unprotected speech, or unwanted speech to plaintiffs, it can’t categorically ban speech about them or their business. Indeed, this is exactly what the court held in a pre-Internet case involving an injunction against speech sharply critical of a businessperson. In Organization for a Better Austin v. Keefe (1971), speakers who disapproved of a real estate agent’s (apparently lawful) behavior repeatedly leafleted near where the agent lived and went to church, demanding that he change his practices. Indeed, “two of the leaflets requested recipients to call respondent at his home phone number and urge him to sign the ‘no solicitation’ agreement.” Yet the court struck down an injunction against such leafleting, reasoning,

No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record.

Likewise, in NAACP v. Claiborne Hardware Co. (1982), the organizers of a boycott of white-owned stores demanded that black customers stop shopping at those stores. The organizers stationed “store watchers” outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud in local churches and printed in leaflets that were distributed to other black residents. Some of the noncomplying shoppers were physically attacked for refusing to go along with the boycott.

Yet the court held that these activities were protected by the First Amendment, despite the backdrop of violence and the attempt to use social ostracism to pressure black shoppers to forgo their legal rights to shop at white-owned stores. Though “petitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism,” the court held, “speech does not lose its protected character … simply because it may embarrass others or coerce them into action.” Even financial liability for such speech was unconstitutional, the court concluded. An injunction against such speech, such as that involved here, would be still more clearly impermissible.

Note also that this unconstitutionality can’t be justified on the grounds that this particular TRO will last only 14 days: Even brief restrictions on speech are generally unconstitutional. See, e.g., Nebraska Press Ass’n v. Stuart (1976); In re King World Productions, Inc. (6th Cir. 1990).

B. Item 1 of the injunction also unconstitutionally bans false or misleading information about plaintiffs. Outside the special case of commercial advertising, speech that is merely misleading — as opposed to outright false — can’t constitutionally be punished.

Virtually any controversial statements may be labeled “misleading” by hostile observers, since almost all speech inevitably omits some details that the observers may find important, or give some factual statements more weight than the observers may think is justified. How many statements about an adversary would you feel safe in making when a judge has ordered you — on pain of possible criminal punishment for contempt — not to convey “misleading information” about the person?

Indeed, a 2014 Ohio Supreme Court decision (In re Judicial Complaint Against O’Toole) expressly distinguished false statements — which it viewed as punishable — from merely misleading ones, which it held to be constitutionally protected. The Michigan and Alabama supreme courts have taken the same view. Those cases involved misleading statements in judicial campaigns (the one area, outside commercial advertising, where there have been the most attempts to restrict supposedly misleading speech). But the same logic would apply to public criticism of businesses by consumers, which is generally fully protected by the First Amendment; see, e.g., Paradise Hills Assocs. v. Procel (Cal. Ct. App. 1991) (treating signs by consumers criticizing businesses as fully protected); Bose Corp. v. Consumers Union (1983) (treating product reviews as fully protected). To be sure, in highly unusual cases a statement may be so deeply misleading that it would be treated as false (see this post); but a categorical injunction against all “misleading information” about a person can’t be justified on this theory.

C. Injunctions against speech that has been found to be constitutionally unprotected — such as injunctions against libel — may well be constitutional. But that is so only when there has indeed been such a finding, after a full trial. Thus, for instance, the California Supreme Court in Balboa Island Village Inn, Inc. v. Lemen (2007) concluded:

An injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression. “Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution.”

And the focus on “following a determination at trial” was no accident; immediately after that, the court favorably cited a law review article for the proposition that,

In certain instances prior restraints are appropriately disfavored … because of the coincidental harm to fully protected expression that results from the preliminary restraint imposed prior to a decision on the merits of a final restraint. … Such interim restraints present a threat to first amendment rights … that expression will be abridged … prior to a full and fair hearing before an independent judicial forum to determine the scope of the speaker’s constitutional right.

Likewise, the Kentucky Supreme Court held in Hill v. Petrotech Resources Corp. (2010) that “defamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false.”

Here, there was no trial, no “final determination” and no “decision on the merits” — only a judgment that it was “substantially likely that Plaintiffs will prevail on the merits against the Defendants.” Indeed, this judgment was entered even without any argument by defendants: The court’s order notes that it’s based on “Plaintiffs’ Verified Complaint, the Motion for Temporary Restraining Order, and Memorandum in Support,” and doesn’t mention any responses by the defendants. And while plaintiffs’ counsel tells me that they notified the defendants of their intention to sue and seek an injunction (and that the defendants didn’t respond), it appears that the defendants had at most a few days to arrange to defend themselves, so it’s unsurprising that they didn’t appear in court in time. [UPDATE 12/4/17: As noted in the update at the start of this post, it appears that the defendants weren’t notified of the impending hearing until an hour or so before the hearing began, and the order was issued just an hour and a half after the start of the hearing.]

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I sympathize with people who are falsely accused by others (if indeed the criticism proves to be false), and I appreciate that the possible prospect of a libel recovery years down the line is little comfort to them. Such libel cases can cost vast amounts of money, and if the defendant doesn’t have assets, there’s no real prospect of recovering any of that money even if the plaintiff wins; and in the meantime, the false accusations can do a lot of damage. I also sympathize with targets of death threats and hack attacks.

But that can’t justify, I think, blanket bans on criticism by certain consumers, bans that go far beyond libel. It can’t justify ignoring the well-developed limits of the First Amendment exception for libel, or for incitement of crime — a deliberately narrow exception limited to speech that intentionally incites imminent and likely illegal conduct, elements that have to be proved rather than just assumed.

It can’t justify forbidding “misleading information,” a malleable standard that leaves speakers at the mercy of the judge’s idea of what’s misleading. And it can’t justify forbidding even libelous speech based on one side’s presentation of the matter, apparently without adequate time for the other side to prepare to appear.

Thanks to reader Elliot Fladen for the pointer.