Freedom of speech, defamation, and injunctions.

AuthorArdia, David S.
PositionIntroduction through II. The No-Injunction Rule in Defamation Cases, p. 1-41

ABSTRACT

It has long been a fixture of Anglo-American law that defamation plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. Indeed, it has been repeated as a truism: "equity will not enjoin a libel." This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints. But it may not be true, at least not anymore.

Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases. Prior to the widespread availability of digital publishing, most defamation lawsuits in the United States involved claims against the mass media. These defendants were amenable, at least in theory, to the threat of large damage awards and had professional and financial interests in maintaining their reputations for accurate reporting. Today, the defendants in defamation cases are more likely to be bloggers or users of social media, such as Facebook and Twitter. For this new crop of defendants, the threat of money damages does not appear to serve the same limiting function on their behavior.

Although the Supreme Court has never held that an injunction is a permissible remedy for defamation, the past decade has seen a veritable surge in injunctions directed at defamatory speech, especially speech on the Internet. Despite this surge, courts have not clearly articulated why injunctions are permissible under the First Amendment and consistent with long-standing principles of equity. As a result, many judges--and scholars--remain confused about the availability and proper scope of injunctive relief in defamation cases.

This Article challenges the widely held view that defamation law does not countenance injunctions. In doing so, it presents the first comprehensive analysis of more than two centuries of case law. Reviewing these cases, it draws out the rationales, both constitutional and equitable, for the no-injunction rule. The Article concludes that although courts should be cautious when granting injunctions, a limited form of injunctive relief would be constitutional and consistent with equitable principles if it were limited solely to false statements on matters of private concern that a court has found--after full adjudication--are defamatory. It then describes how such a remedy could be structured so that it would be both effective and compatible with the First Amendment.

TABLE OF CONTENTS INTRODUCTION I. REPUTATIONAL HARMS AND EQUITABLE REMEDIES A. The Changing Face of Defamation Litigation B. Irreparable Injuries and Inadequate Remedies II. THE NO-INJUNCTION RULE IN DEFAMATION CASES A. Equitable Limitations on Injunctive Relief 1. Maintaining a Check on Judicial Power 2. A Preference for Legal over Equitable Remedies 3. Concerns About the Efficacy of Speech Injunctions B. Constitutional Limitations on Injunctive Relief 1. Prior Restraints and Subsequent Sanctions 2. Prior Restraints and Full Adjudication III. A NEW APPROACH EMERGES IN THE TWENTIETH CENTURY A. Exceptions to the No-Injunction Rule 1. Speech That Impugns Property Interests 2. Speech That Is Part of a Continuing Course of Conduct 3. Speech That Has Been Adjudged to Be Defamatory B. Problems of Overbreadth and Underinclusiveness 1. Type I Injunctions 2. Type II Injunctions 3. Type III Injunctions 4. Type IV Injunctions IV. AN EQUITABLE REMEDY THAT ACCORDS WITH FREE SPEECH PRINCIPLES A. Requiring Full-Adjudication of Claims B. Preserving the Jury's Role as a Check on Judicial Power C. Ensuring Narrow Tailoring D. Allowing Robust Debate on Issues of Public Concern E. Demonstrating Effectiveness CONCLUSION INTRODUCTION

It has long been a fixture of Anglo-American law that libel plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. (1) Indeed, it has been repeated as a truism: "equity will not enjoin a libel." (2) This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints. (3) But it may not be true, at least not anymore.

Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases. (4) Prior to the widespread availability of digital publishing, most defamation lawsuits in the United States involved claims against the mass media. These defendants were amenable, at least in theory, to the threat of large damage awards and had professional and financial interests in maintaining their reputations for accurate reporting. Today, the defendants in defamation cases are more likely to be bloggers or users of social media, such as Facebook and Twitter. For this new crop of defendants, the threat of money damages does not appear to serve the same limiting function on their online behavior.

Not surprisingly, the so-called "no-injunction rule"--which essentially says that judges cannot prevent reputational harms that arise from defamatory falsehoods, and that they may order only money damages after the harms occur--has faced considerable criticism. As Professor Douglas Laycock observed, such a rule "sounds absurd to people who are neither lawyers nor economists." (5) And even to many lawyers, the no-injunction rule often seems illogical. (6)

Although the Supreme Court has never held that an injunction is a permissible remedy in a defamation action, the past decade has seen a veritable surge in injunctions directed at defamatory speech, especially speech on the Internet. (7) Despite this surge, courts have not clearly articulated why injunctions are permissible under the First Amendment and consistent with long-standing principles of equity. As a result, many judges remain confused about the availability--and proper scope--of injunctive relief in defamation cases. In a number of cases, for example, judges have issued astonishingly broad injunctions, including injunctions that ordered defendants to never again mention the plaintiffs name, (8) or to remove entire websites because a single page contained defamatory content. (9) Such injunctions raise obvious problems under the First Amendment's prior restraint doctrine, yet these judges seem oblivious to the constitutional ramifications of their orders, viewing injunctive relief as just another remedy available to tort plaintiffs.

As Professor Eugene Volokh recently remarked, uncertainty about the availability of injunctive relief in defamation cases is one of the most important issues in First Amendment law today. (10) It is an issue, however, that has not received significant attention by legal scholars. (11)

This Article aims to rectify this deficiency by analyzing more than two centuries of case law involving injunctions in defamation cases. In reviewing the cases, it identifies the rationales, both constitutional and equitable, for the no-injunction rule. It also argues that in some circumstances, the rule ought to be put aside so that a court can issue a narrowly tailored injunction to prevent further harm to a plaintiff who is suffering continuing injury from defamatory speech. In addition, it addresses the vexing question of whether an injunction directed at defamatory speech online has any chance of actually being an effective remedy.

In our increasingly networked world, defamatory speech may be beyond the power of a court to enjoin. (12) All speech now has digital echoes, whether neighborhood gossip shared on Facebook, archived news articles indexed and searchable through Google, or snippets of broadcast footage redistributed on YouTube. As Justice Thurgood Marshall remarked in the Pentagon Papers case, "A court of equity will not do a useless thing." (13) Perhaps a court order enjoining the continuation of a press run might have been effective at preventing the spread of defamatory speech in a pre-Internet world, but speech now radiates--and persists--in ways that would have been unimaginable only a quarter century ago. (14)

Part I begins by examining the remedies available to plaintiffs in defamation cases, finding that there is frequently a gap between what plaintiffs want and what they can realistically achieve. For nearly all defamation plaintiffs, their only available remedy is monetary damages. But money is not what these plaintiffs want most. They want vindication, and they want the defendant to stop defaming them. Yet as recent cases show, those goals can be elusive, especially when the defamatory speech is disseminated on the Internet.

Part II explores the historical antecedents for the no-injunction rule and identifies the reasons courts initially adopted--and continue to invoke--the rule. A survey of more than 242 defamation decisions reveals that the no-injunction rule is based on both constitutional and equitable concerns about the power of government to silence speech. Modern courts most often cite the First Amendment's prior restraint doctrine as a reason to deny injunctive relief, but the no-injunction rule was firmly ingrained in Anglo-American law long before the U.S. Constitution was ratified. Although the First Amendment has a lot to say on the question of injunctions in speech cases, the no-injunction rule is also based on, among other rationales, respect for the role of juries in free speech controversies, a general preference for legal rather than equitable remedies, and skepticism about the effectiveness of speech injunctions.

Nevertheless, as Part III shows, judges have increasingly granted injunctions in defamation cases, often without considering their constitutionality or consistency with long-standing principles of equity. A review of the case law reveals that at least fifty-six decisions have granted or affirmed an injunction directed at defamatory speech, with an especially sharp increase in such cases after 2000. (15) Although the number of...

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