Defamation Dilemma: Is the First Amendment Protecting Unprotected Speech?

• Author: Marshall, Paige L.

"As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." (1)

1. INTRODUCTION

   The First Amendment, made applicable to the states through the Fourteenth Amendment, generally prevents the government from proscribing speech, or even expressive conduct, because it disproves of the ideas expressed. (2) From 1791 to the present, however, society has permitted restricting the content of speech in limited areas, which are "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (3) These narrowly limited classes of speech fall outside the First Amendment's "protective shield" and have a historical foundation in the Supreme Court's free speech tradition. (4) One such historic and traditional category is defamation. (5)

   Though it is well understood that the First Amendment does not protect defamatory language, whether an injunction against future speech following a defamation trial is constitutional remains unclear. (6) Recently, in Sindi v. ElMoslimany, (7) the First Circuit acknowledged the current circuit split regarding this issue. (8) The Sindi court ultimately decided the issues concerning the validity and enforceability of the challenged injunction on narrower grounds, leaving unsettled the question of whether an injunction against future speech following a defamation trial generally violates the First Amendment. (9) The Sixth Circuit, as well as state courts in California, Georgia, Kentucky, Minnesota, Nebraska, Ohio, and Tennessee, has adopted a view that an injunction against future speech following a defamation trial may be consistent with the First Amendment. (10) On the other hand, the Seventh Circuit, joined by the Pennsylvania and Texas Supreme Courts, has expressed deep skepticism, suggesting this remedy after a defamation trial is per se unconstitutional. (11) Although the Supreme Court once granted certiorari to resolve this issue, it disposed of the case on less controversial grounds, leaving the broader constitutional question open. (12)

   More deeply rooted in this split is the issue of prior restraints. (13) The Supreme Court has stated that a prior restraint bears a heavy presumption against its constitutional validity. (14) In determining the constitutional validity of an injunction, courts must address whether an injunction against future speech already found to be defamatory constitutes a prior restraint, and if so, whether the prior restraint is permissible. (15) Though the Court has traditionally viewed injunctions against future speech as "classic examples" of unconstitutional prior restraints, an emerging modern trend finds such injunctions permissible, so long as they are limited to speech specifically adjudicated to be unlawful. (16) Moreover, injunctions carry greater risks of censorship and discriminatory application. (17) A court's duty to review the efficacy and consequences of an injunction therefore takes on special importance in the First Amendment context. (18)

   This Note argues that when examining the constitutionality of an injunction against future speech following a defamation trial, a proper analysis contains elements taken from both sides of the circuit split. (19) This Note discusses the historical view of injunctions as a permissible remedy following a defamation trial, as well as the prior restraint doctrine. (20) Then, it analyzes the differing views among circuits, as well as the constitutional impact of permitting injunctions against future speech. (21) Finally, this Note concludes that an injunction against future speech following a defamation trial may not constitute a prior restraint, and therefore may be a constitutional remedy under the First Amendment. (22)

2. HISTORY

   1. Origin of the First Amendment and Freedom of Speech

      The First Amendment, the first of ten amendments to the United States Constitution that make up the Bill of Rights, was ratified in 1791. (23) Inspired by Thomas Jefferson and drafted by James Madison, the Framers adopted the Bill of Rights in response to calls from several states for greater constitutional protection of individual liberties. (24) Initially, much debate surrounded the need for a specific declaration of individual rights in the Constitution. (25) The Federalists opposed the inclusion of a bill of rights on the grounds that it was unnecessary, while the Anti-Federalists, who were afraid of a strong, centralized government, refused to support the Constitution without a bill of rights. (26)

      Recently freed from the control of the English monarchy, the American people wanted strong guarantees that the new government would not trample on their newly-won freedoms. (27) In order to ensure this, the Anti-Federalists demanded that a specific enumeration of fundamental rights be written into the Constitution. (28) After four years of intense debate, the Founding Fathers ultimately conceded to both public sentiment and Jefferson, who argued, "A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference." (29)

      Of the ten amendments within the Bill of Rights, the First Amendment is arguably the most important to maintaining democracy. (30) It safeguards five of the most basic human liberties: freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government. (31) These five liberties are considered America's "first freedoms," not just because they are listed in the First Amendment, but also because they are fundamental rights that allow for someone to "follow one's conscience, speak out for justice, and organize for change." (32) Protecting these five fundamental rights is essential to achieve the free and open exchange of ideas, a core value of representative governance. (33)

      Freedom of speech--the focus of this Note--gives Americans the right to express themselves without the worry of government censorship and intervention. (34) This fundamental right is the most basic component of freedom of expression and essentially separates democracy from totalitarianism. (35) While the First Amendment specifically protects an individual's right to free speech, it does so through the use of broad, doctrinal "terms of art." (36) As such, courts continually interpret and dispute the meaning and scope of the right to free speech. (37) Though free speech jurisprudence is still evolving today, the Supreme Court has made one thing clear: This right is not absolute. (38)

   2. Defamation as a Limitation to Free Speech

      The liberty to speak and write without government interference is a bedrock principle of the Constitution, which is why the Supreme Court has been, and remains, reluctant to restrict or limit this right. (39) From 1791 to the present, however, the Supreme Court has permitted restrictions on the content of speech in a few limited areas. (40) One such category of unprotected speech is defamation. (41)

      Defamatory language is language that tends to harm the reputation of another by lowering him or her in the opinion of the community, or by discouraging third persons from associating with that person. (42) The prohibition against defamation is broken down into two separate actions: libel and slander. (43) Libel is a written defamatory statement, while slander is an oral defamatory statement. (44)

      As defamation is a state cause of action, and tort law varies widely across states, it is difficult to impose a set of universally accepted elements for a defamation action. (45) What a plaintiff must prove to succeed in a defamation action depends on the identity of the plaintiff, the identity of the defendant, the nature of the defamatory utterance, and the specific jurisdiction. (46) The Second Restatement of Torts, however, provides that defamation requires: "(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting to at least negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." (47)

      The plaintiff's identity has significant consequences, as different standards apply depending on whether the plaintiff is considered a public figure or a private figure. (48) Private-figure plaintiffs must establish fault by the defendant, which has been interpreted as requiring negligence. (49) But if the plaintiff is a public figure, the plaintiff must establish "actual malice" by the defendant in order to recover. (50) The heightened standard for public figures is based on the fact that public figures generally seek out attention, and because their notoriety often affords them immediate access to redress through the media, the law assumes they need less protection from defamatory speech than the average person. (51)

   3. Injunctions as Permissible Remedies Following Successful Defamation Trials

      The two most common remedies following successful civil trials are judgments entitling the plaintiff to collect monetary damages from the defendant and court orders requiring the defendant to refrain from certain wrongful conduct. (52) It has been a longstanding fixture in defamation trials, however, that plaintiffs are not entitled to injunctive relief, solely monetary damages. (53) This precept rests on one of the strongest presumptions in First Amendment jurisprudence: Injunctions against future defamatory speech are unconstitutional prior restraints. (54)

      1. The Prior Restraint Doctrine

         The prior restraint...