INTRODUCTION 75 I.THE FIRST AMENDMENT AND CRIMINAL LIBEL LAW 80 II.THE FIRST AMENDMENT AND THE CATCHALL PERMANENT INJUNCTION 83 A. The Catchall Injunction as a Narrower Criminal Libel Provision 83 B. The Prior Restraint Objection 87 C. The "Adequate Remedy at Law" Objection 89 D. The "Equity Will Not Enjoin a Libel" Objection 90 E. The Vagueness Objection 91 F. The Singling Out Objection 91 G. The "No Obey-the-Law Injunctions" Objection 92 III.THE FIRST AMENDMENT AND THE SPECIFIC PRELIMINARY INJUNCTION 93 IV.THE FIRST AMENDMENT AND THE SPECIFIC PERMANENT INJUNCTION 96 A. How the Specific Injunction Underprotects Speech 96 B. Proof Beyond a Reasonable Doubt 99 C. Jury Factfinding 100 V. Assistance of Counsel 103 E. Lack of Provision for Changing Circumstances and Changing 104 Context... V.THE FIRST AMENDMENT AND THE HYBRID PERMANENT INJUNCTION 105 A. The Hybrid Permanent Injunction 105 B. The Futility-or-Vagueness Objection 109 C. The Discretion Objection 109 D. Restricting Injunctions to Libels on Matters of Private 111 Concern? E. Restricting Injunctions Against Libels of Public Officials 113 or Public Figures? F. The Limited Role of Mens Rea 115 VI. THE FIRST AMENDMENT AND THE HYBRID PRELIMINARY INJUNCTION 117 A. The Hybrid Preliminary Injunction 117 B. The Hybrid Ex Parte Temporary Restraining Order 119 VII. BEYOND THE FIRST AMENDMENT: INJUNCTIONS AND PROSECUTORIAL 120 DISCRETION VIII. BEYOND THE FIRST AMENDMENT IN STATES THAT HAVE REPEALED 124 CRIMINAL LIBEL LAWS IX.BEYOND THE FIRST AMENDMENT: ERIE AND FEDERAL COURTS 128 X. BEYOND LIBEL: FALSE LIGHT, INTERFERENCE WITH BUSINESS 129 RELATIONS, DISCLOSURE OF PRIVATE FACTS, AND MORE A. Nondefamatory Falsehoods About People 130 B. Slander, Trade Libel, Slander of Title, and Injurious 132 Falsehood C. Interference with Business Relations 132 D. Disclosure of Private Facts 133 E. Nonconsensual Pornography 136 CONCLUSION 136 APPENDIX A: STATES' VIEWS ON ANTI-LIBEL INJUNCTIONS 137 APPENDIX B: SAMPLE CATCHALL INJUNCTIONS 147 APPENDIX C: SAMPLE PRELIMINARY ANTI-LIBEL INJUNCTIONS 149 APPENDIX D: SAMPLE INJUNCTIONS ENFORCED THROUGH THREAT OF JAIL 153 INTRODUCTION
An injunction against libel, backed by the threat of prosecution for criminal contempt, (1) is like a miniature criminal libel law--just for this defendant, and just for statements about this plaintiff. (2) That is its virtue. That is its danger. And that is the key to identifying how the First Amendment and equitable principles should constrain such injunctions.
From the 1960s to the 1990s, libel was conventionally understood to be controlled (to the extent that it can be controlled) by the threat of civil damages. Criminal libel was seen as an anachronism. (3) Injunctions against libel were seen as unavailable. (4) Many still assume this is so. (5)
When one considers the famous libel scenarios, focusing on damages makes sense. For libels by a newspaper, magazine, or credit rating agency, (6) damages are likely both a fair remedy and a reasonable deterrent. (7) Criminal liability seems like overkill, and an injunction is usually pointless: those defendants aren't likely to keep saying false things about the plaintiffs in any event, especially after a libel judgment, so nothing will need enjoining. Print defamation is generally a short, sharp shock, which causes harm that an injunction can't stop. (8)
But the judgment-proof libeler, always a hazard, (9) has become still more common--and more dangerous--in the Internet age. (10) The Internet lets speakers publish libels to a potentially broad audience at little cost, and these libels can cause enduring damage. Every time someone Googles a plaintiff's name, the libels pop up again.
Moreover, 47 U.S.C. [section] 230(c)(1) generally immunizes intermediaries, such as search engines or online service providers, that do have money. In any practical sense, damages awards do not leave plaintiffs in such cases with an "adequate remedy at law" (11)--damages cannot be collected from the judgment-proof, and cannot effectively deter them. But the judgment-proof are not jailproof: If libelers who lack money are to be deterred, the threat of criminal punishment is the one tool that can do the job.
Consider, then, several different ways that such criminal punishment can be threatened. Assume that judgment-proof Don says Paula cheated him in business, and Paula thinks he's lying. We can imagine several possible responses:
The criminal libel prosecution: Paula goes to the prosecutor, who tells Don, "Our state has a criminal libel law; I think your statements about Paula are lies, and if you keep libeling her, I'll prosecute you for criminal libel." That doesn't violate the First Amendment, as I'll discuss in Part I, though it may be condemned as too likely to chill speech and too likely to be abused by prosecutors.
The catchall injunction: Paula goes to court and gets an injunction against Don saying, "You may not libel Paula, or you will be prosecuted for criminal contempt." That, I'll argue in Part II, also doesn't violate the First Amendment, because Don can't be convicted of violating the injunction unless his post-injunction statements are proved libelous beyond a reasonable doubt at the criminal contempt trial. At the same time, such injunctions may be inadvisable, because they chill speech too much; appellate courts generally frown on them.
The specific preliminary injunction: Paula goes to court and quickly gets a preliminary injunction against Don saying, "You may not say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." Though the injunction is less chilling than criminal libel law, it fails to offer some of the important procedural protections that criminal libel law does (as Part III discusses). In particular, such a specific preliminary injunction lets speech be suppressed based on just a likelihood-of-success-on-the-merits preliminary finding, rather than a full decision on the merits, following a trial. Because of this, appellate courts generally condemn such injunctions.
The specific permanent injunction: Paula goes to court, and after a full trial gets a permanent injunction against Don saying, "You may not say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." Thirty-four states allow such injunctions, at least in some situations, and only six have generally rejected them (Appendix A documents this). If "equity will not enjoin a libel" (12) was ever a firm rule, it isn't so now. But, I'll argue in Part IV, these injunctions also fail to provide certain important procedural protections.
The hybrid permanent injunction: Paula goes to court and gets a permanent injunction against Don saying, "You may not libelously say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." This sort of injunction, I'll argue in Part V, can provide the procedural protections that criminal libel law and catch-all injunctions offer, chiefly because the injunction by its terms only punishes speech if it's found libelous both at the injunction hearing and at the ultimate criminal contempt trial. But at the same time, the hybrid permanent injunction has the narrower chilling effect that characterizes the specific permanent injunction.
The hybrid preliminary injunction: Paula goes to court and gets a preliminary injunction against Don saying, "You may not libelously say that Paula has cheated you in business, or you will be prosecuted for criminal contempt." I'll argue in Part VI that this also provides the constitutionally required procedural protections (unlike the widely condemned specific preliminary injunctions), but at the same time protects Paula against libel more quickly.
One way of understanding this is by focusing on exactly what kind of speech each remedy actually criminalizes:
Criminal libel law All statements found by jury to be libelous beyond a reasonable doubt Catchall injunction All statements by Don about Paula found by jury at contempt trial to be libelous beyond a reasonable doubt Specific preliminary- Specific statements by Don about Paula found by injunction judge, based on abbreviated hearing, to probably be libelous Specific permanent Specific statements by Don about Paula found injunction by judge at trial to be libelous by a preponderance of the evidence Hybrid permanent Specific statements by Don about Paula found injunction by judge at trial to be libelous by a preponderance of the evidence and then found by jury at contempt trial to be libelous beyond a reasonable doubt Hybrid preliminary Specific statements by Don about Paula found by injunction judge, based on abbreviated hearing, to probably be libelous and then found by jury at contempt trial to be libelous beyond a reasonable doubt I will argue that:
Properly crafted criminal libel laws and catchall injunctions are constitutional, though probably too broad to be a good idea.
Specific injunctions, permanent or preliminary, are unconstitutional (whether under the First Amendment or under state constitutions).
Hybrid injunctions, permanent or preliminary, are constitutional and may indeed be well-advised.
Properly crafted anti-libel injunctions are thus permissible under the First Amendment, if a state chooses to implement them, as some state courts (13) and state legislatures (14) have done. (I set aside here injunctions that forbid more than just the libelous statements; those are generally unconstitutionally overbroad, and I discuss them in a separate article. (15)) Such properly crafted anti-libel injunctions should also be seen as constitutional under state constitutions, even those that contain language that has sometimes been seen as categorically foreclosing injunctions. (16)
But deciding whether to allow such injunctions also requires a difficult judgment about state remedies law, again precisely because each injunction effectively creates a mini criminal libel...