AuthorVolokh, Eugene

INTRODUCTION I. What Some Trial Courts Are Doing A. "Stop talking about plaintiff" injunctions B. Injunctions that are narrower but still too broad II. Why Such Broad Injunctions Are Unconstitutional A. Supreme Court precedent generally B. Protection for photographs and other information about people C. State and federal appellate precedents III. The Doctrinal Defenses of the Broad Injunctions. A. Content neutrality B. "Speech integral to criminal conduct" C. "Harassment is not protected speech" D. Restrictions based on past speech or conduct E. Private concern F. Bad intentions G. Too much? IV. Why Those Courts Are Doing It A. Speech by private individuals as less respectable than speech by media outlets B. Speech by private individuals, without the money and power of media outlets C. Judges as flexible problem-solvers D. Getting "all the craziness ... to stop totally" Conclusion Appendix Introduction

Donna is publicly criticizing Paul. So Paul sues her, and gets an injunction such as this: "[Defendant] is permanently enjoined from publishing ... any statements whatsoever with regard to the plaintiff." (1)

If s hard to reconcile such an injunction (whether entered in a libel case or as a "personal protective order") with First Amendment precedents. The injunction isn't limited to speech within a First Amendment exception, such as libel or true threats. (2) It is far from "narrowly tailored," which is often set forth as a requirement for the rare content-based anti-speech injunctions that are indeed permitted. (3) Yet I have found over 200 such injunctions (almost all in the last ten years)--some as broad as that one, and others narrower but still overbroad--entered either in libel cases or in cases involving petitions to stop harassment or cyberstalking. (4) And these 200 are likely just the tip of the iceberg, since such injunctions rarely lead to appeals, and thus are rarely made visible in searchable Internet databases.

Some injunctions have restricted speech criticizing exes and other family members. (5) Others have restricted criticisms of businesses or professionals (lawyers, doctors, real estate agents, financial advisers) with whom speakers say they had a bad experience. Still others have restricted criticism of police officers, judges, and other government officials.

Some have banned all speech about the plaintiff, or all online speech about the plaintiff. Others have been narrower--for instance, banning all "derogatory" speech or all posting of photographs of the plaintiff--but were still not limited to speech that First Amendment law recognizes to be restrictable (such as libel or true threats or unwanted speech said to the plaintiff). (6)

Many of these injunctions have focused on online speech. But the Court has made clear that online speech, and in particular speech on social media, is fully protected by the First Amendment, as much as is speech in newspapers or books or leaflets. (7)

Unsurprisingly, most such injunctions involve either a defendant who was not represented by a lawyer, or a default judgment against a defendant who did not appear, so the First Amendment arguments against the injunctions were likely not effectively presented to the judge. Part I lays out the evidence on the injunctions that I've found.

When these injunctions do go up on appeal, they almost always get reversed, because they violate the First Amendment. (8) Part II discusses the precedents on this, both from the U.S. Supreme Court and from state and federal appellate courts. I hope this Part (and the Article more broadly) will be especially useful to judges, lawyers, and even pro se litigants dealing with such cases, as well as to legal academics. I discuss state and federal appellate precedents there in more detail than is common for a law review article, so that it will be more useful for practical litigation.

But some courts have upheld such injunctions, based on two related theories. First, some courts have concluded that the First Amendment doesn't protect harassment, and that otherwise protected speech becomes unprotected harassment when it is said (especially when it is said often) with an intent to offend, embarrass, or harass. (9) Second, some courts have concluded that the First Amendment doesn't protect such speech when it is on a matter of merely "private concern." (10) I think these theories are inconsistent with First Amendment precedents, and Part III will discuss that.

Finally, Part IV will speculate why courts are doing this, and how it bears on broader debates about how the "cheap speech" created by the Internet has affected public discussion; how some judges might perceive their role in pragmatically resolving disputes; and how judges deal with litigants whom they see as irrational, and therefore as uncontrollable using normal tools such as civil damages liability.

Our legal system offers many remedies, however imperfect, for damaging speech about a person. One is the libel lawsuit, which may allow even a narrowly tailored injunction forbidding the defendant from repeating specific statements that have been found to libelous at trial. (11) Another, in some states, is criminal libel law. (12) A third, in other states and under federal law, is criminal harassment law or cyberstalking law, though that may raise its own First Amendment problems. (13) And if Donna is writing derogatory things to Paul, rather than just about him, he may able to get a restraining order to make that stop. (14)

But the injunctions I describe in this Article are not a permissible remedy: they restrict constitutionally protected opinions and constitutionally protected true statements of fact. Sometimes, they interfere with speech about government officials and other important figures. (15) Sometimes, they interfere with speech on matters of public concern, such as business treatment of consumers or alleged criminal conduct. (16) And even when they deal with what appear to be private disputes, they interfere with speech on what I call "daily life matters," which is likewise constitutionally protected. (17)

Of course, persistent criticism, which may often be unfair and insulting, may understandably distress its targets. But, as the Supreme Court and lower courts have made clear, such speech cannot be suppressed even by damages awards, and certainly not by injunctions.


    Let me begin by laying out the injunctions that some trial courts have been issuing. I start with the broadest and continue to ones that are narrower but still not narrow enough.

    1. "Stop talking about plaintiff" injunctions

      Some injunctions in libel cases categorically ban defendant from speaking about plaintiff (or at least from doing so online or on some particular site), for instance, "Defendant Leo Joseph is hereby permanently restrained from publishing future communications to any third-parties concerning or regarding the Plaintiffs in either their professional, personal or political lives." (18) I collect many such cases in the Appendix; they include injunctions entered restricting speech about the Prime Minister of Haiti (the one I just quoted), a controversial billionaire Chinese businessman, (19) local professionals, (20) businesspeople, (21) and more.

      Similar injunctions are sometimes entered in claims brought under statutes that authorize injunctions against "harassment" or "stalking" (sometimes called "harassment prevention orders" or "personal protection orders"). (22) Those statutes are usually used to require the defendant to stay away from the plaintiff, or to stop talking to the plaintiff rather than about the plaintiff. (23) And the statutes generally call on courts to focus on whether the defendant has annoyed, harassed, or substantially distressed the plaintiff, not on whether the defendant has published defamatory statements. (24) But the laws are increasingly used to order a defendant to stop speaking about the plaintiff, based on speech that is likely annoying, distressing, or harassing precisely because it "damages [the plaintiff's] reputation." (25)

      Here are a few examples; because such orders may be less familiar than libel cases, I offer a few more details on each:

      * The state senator: Florida state senator Lauren Book got an injunction "prohibiting]" a persistent critic, Derek Logue, "from posting anything related to [Senator Book], even statements that would unquestionably constitute pure political speech." (26) Logue is an advocate for the rights of released sex offenders (and himself a released sex offender); Book is a prominent backer of sex offender registration laws. (27) The injunction was based on Logue's having protested against a march that Book had organized, having asked an aggressive question at a screening of a documentary in which both Book and Logue were featured, and having set up a web site that sharply criticized Book (and posted a picture of her home, together with its address and purchase price, drawn from public records). (28)

      * The judge: Michigan state trial judge Cheryl Matthews got an injunction apparently barring Richard Heit from making any online statements about her. (29) Heit, whose fiancee had earlier lost a case before Judge Matthews, had harshly criticized the judge online, saying things like, "They are all liars," "We will take [Judge] Matthews [Petitioner] out. She has had it in for you from the start. She is only one step over a traffic cop. She will be in jail," "We will get this to appeals and take them all down," "A farce! A mockery! A FUCKING JOKE! Dishonest Judge," and "DO NOT VOTE FOR JUDGE CHERYL MATTHEWS." (30)

      * The forensics expert and former state board member: Stacy David Bernstein was a prominent forensic psychology expert, a sometime instructor for the FBI, and a gubernatorially appointed member of the Connecticut Board of Firearms Permit Examiners. (31) Bernstein got an order forbidding Robert Serafinowicz from posting "any...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT