Freedom of speech, defamation, and injunctions.

• Author: Ardia, David S.
• Position: III. A New Approach Emerges in the Twentieth Century through Conclusion, with footnotes, p. 42-84

3. A NEW APPROACH EMERGES IN THE TWENTIETH CENTURY

   As Part II reveals, as late as the second half of the twentieth century, American courts considered it settled that libelous speech could not be enjoined, even after a finding of defamation. In the later part of the twentieth century, this started to change, as an increasing number of courts began granting and upholding injunctions in defamation cases. This section traces that change and examines the justifications judges proffered when departing from the no-injunction rule.

   A survey of more than 242 decisions involving injunctions directed at defamatory speech reveals that at least fifty-six decisions have granted or affirmed injunctions, with an especially sharp increase in such decisions after 2000. (189) While these cases covered a broad range of expression, including oral statements, (190) books, (191) letters, (192) trade publications, (193) signs, (194) and even cars, (195) nearly half involved speech on the Internet. (196)

   Although some courts neglected to address the relevant constitutional and equitable principles involved before granting an injunction, (197) those courts that did analyze the propriety of injunctive relief invariably noted the no-injunction rule, but nevertheless relied on at least one of three justifications for departing from the rule: (1) the speech impugned the plaintiffs property interest; (2) the defendant engaged in a continuing course of conduct that caused the plaintiff harm; or (3) the speech had been adjudged to be defamatory.

   1. Exceptions to the No-Injunction Rule

      1. Speech That Impugns Property Interests

         One of the earliest exceptions to the no-injunction rule was based on the belief that a court could issue an injunction if the order was directed at preserving business or other property interests. (198) We see this solicitude for property rights in cases in which the defendant is alleged to have defamed the plaintiff by questioning the legitimacy of his patents (199) or the quality of his products or services, (200) and in claims for tortious interference with contracts or business relationships. (201) In essence, these courts held that an injunction was proper because the plaintiff had an interest in something other than personal reputation.

         The indulgent treatment accorded to plaintiffs when property interests are at stake is evident in other doctrinal areas as well, especially in copyright cases, in which courts are "unquestionably more favorable to plaintiffs than to defendants." (202) According to Professors Mark Lemley and Eugene Volokh, who wrote the definitive treatment of injunctive relief in intellectual property cases, injunctions---even preliminary injunctions--are granted as "a matter of course" to prevent copyright infringement. (203) Indeed, in intellectual property cases, courts view protection of the plaintiffs property interests as clearly superior to any countervailing speech interests. As Professor Wendy Gordon noted, "The incantation 'property' seems sufficient to render free speech issues invisible" in such cases. (204)

         Given that "property interests" enjoy no special dispensation under the First Amendment, (205) this justification for granting an injunction directed at defamatory speech makes little sense. Moreover, it seems perverse to say that a plaintiff who is being ostracized by her neighbors due to defamatory speech is not entitled to equitable relief, whereas the owner of the local car repair shop can get an injunction because his business is suffering. This is precisely the reasoning an Indiana court relied on in Barlow v. Sipes:

         A business flourishes or folds on its reputation in a community, and it appears that Sipes Body has cultivated a very good reputation in the Lawrence County area. However, the record indicates that the Barlows' statements have somewhat eroded this good name, and equitable relief is the most efficient and practical means of ensuring that the good will of Sipes Body is not destroyed pending the resolution of the tort suits.... Therefore, the grant of equitable relief was proper not only to provide a complete remedy for Sipes Body's economic injury, but also for its reputational harm. (206) Where the speech relates to products or services, some courts also have held that the lesser constitutional protection afforded to "commercial speech" permitted them to issue injunctive relief. (207) The argument here is that commercial speech "is more objective, and hence more verifiable, than other types of speech." (208) Furthermore, "because of its importance to business profits, and because it is carefully calculated, [it] is also less likely than other forms of speech to be inhibited by proper regulation." (209)

      2. Speech That Is Part of a Continuing Course of Conduct

         Recall that in Cochran v. Tory, the California Court of Appeals stated that an injunction was warranted because Ulysses Tory conceded that he would continue to picket Johnnie Cochran's office, even if he were held liable for defamation. (210) Other courts have also found it relevant that the speech at issue was part of a continuing course of tortious conduct or that the defendant had given clear indications he would continue to defame or harass the plaintiff. (211) Unlike in Tory, however, most of these courts held that the continuing conduct was a sufficient justification for granting an injunction even though there had not been a final determination that the speech was defamatory. (212)

         The gravamen of these cases is that the publication is part of a conspiracy to coerce or intimidate the plaintiff. In many of the decisions, however, it is difficult to identify any added harm the plaintiff will suffer due to the speaker's tortious conduct that would not also be attributable to the defamatory speech. Moreover, the quantum of additional conduct that can bring a case within this exception is often quite minimal. For example, in Eppley v. Iacovelli, the court relied on the defendant's very act of publishing websites and videos accusing the plaintiff doctor of causing her ailments in concluding that injunctive relief was proper because the defendant had "engaged in an intentional 'smear campaign' through defamatory Internet publications." (213) Similarly, in West Willow Realty Corp. v. Taylor, the court held that the defendant's picketing of plaintiffs' business with signs and pamphlets complaining that it had sold him a home with defects was sufficient to justify an injunction because the defendant's actions were "designed and put into effect for the purpose of intimidating plaintiffs and coercing a settlement of the claims of and the action brought by defendant against [plaintiffs' business]." (214)

      3. Speech That Has Been Adjudged to Be Defamatory

         The reason courts most often cite when departing from the no-injunction rule is that the injunction will restrain speech that has been held to be defamatory. In 1975, Ohio and Georgia became the first states to adopt this exception, holding that "[o]nce speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper." (215) Nearly a decade later, the Minnesota Supreme Court adopted this approach in Advanced Training Systems v. Caswell Equipment Co., affirming a permanent injunction restraining the defendant from publishing marketing materials that the jury found contained libelous statements about the plaintiffs products. (216) The court reasoned:

         Under the recent decisions of this court and the United States Supreme Court, the permanent injunction below is not unconstitutional.... Other courts have also upheld the suppression of libel, so long as the suppression is limited to the precise statements found libelous after a full and fair adversary proceeding. We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconstitutional and may stand. (217) The California Supreme Court found this reasoning persuasive in Balboa Island Village Inn v. Lemen, (218) one of the most influential decisions rejecting the no-injunction rule. The case, not unlike many defamation cases, involved a disturbing pattern of behavior. Anne Lemen owned a home across an alley from the Balboa Island Village Inn and was a vocal critic of the establishment, having contacted the authorities numerous times to complain of excessive noise and the behavior of inebriated customers leaving the bar. (219) In an effort to document these problems, Lemen photographed and videotaped customers entering and leaving the building, sometimes calling them "drunks" and "whores." (220) She told customers entering the Inn that "the food is shitty" and told neighbors that "there was child pornography and prostitution going on in the Inn, and that the Village Inn was selling drugs and [] alcohol to minors." (221) In its lawsuit, the Village Inn alleged causes of action for nuisance, defamation, and intentional interference with business relations and sought injunctive relief against the defendant. (222) Following a bench trial, the court issued a permanent injunction that prohibited, inter alia, the defendant from making defamatory statements about the plaintiff to third persons. (223) The court of appeals affirmed the trial court's decision, but substantially limited the injunction. (224)

         Acknowledging that an injunction directed at defamatory speech raised significant constitutional concerns, the California Supreme Court distinguished the present case from earlier decisions invalidating injunctive relief: "Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful."...