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Anti-Libel Injunctions ARTICLE ANTI-LIBEL INJUNCTIONS EUGENE VOLOKH† 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 † Gary T. Schwartz Professor of Law, UCLA School of Law ([email protected]). Many thanks to Enrique Armijo, Samuel Bray, Aaron Caplan, Rick Hasen, Doug Laycock, Mark Lemley, Paul Alan Levy, Joan Meier, Grant Nelson, David Pritchard, Ramsey Ramerman, Fred Schauer, and Henry Smith; Amy Atchison, Caitlin Hunter, and Kevin Gerson (UCLA Law Library); and Matthew Chan and Max Steinberg. And special thanks to Adam Holland and Wendy Seltzer of the Lumen Database, my source for many of the unpublished and unappealed injunctions that I cite in this article. Disclosure: I participated in several of the cases cited in this Article: United States v. Alvarez, 567 U.S. 709, 717 (2012) (representing myself and a colleague); Ferguson v. Waid, No. 18-36043 (9th Cir. 2019) (representing myself); Sindi v. El-Moslimany, 896 F.3d 1 (1st Cir. 2018) (representing myself); Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014) (representing defendant); State v. Turner, 864 N.W.2d 204 (Minn. Ct. App. 2015) (representing amici); Publius v. Boyer-Vine, 237 F. Supp. 3d 997 (E.D. Cal. 2017) (representing plaintiff); State v. Burkert, 174 A.3d 987, 1000 (N.J. 2017) (representing amici). (73) 74 University of Pennsylvania Law Review [Vol. 168: 73 B.Proof Beyond a Reasonable Doubt ...................................................... 99 C.Jury Factfinding .............................................................................. 100 D.Assistance of Counsel ....................................................................... 103 E.Lack of Provision for Changing Circumstances and Changing Context ... 104 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 Concern? ............ 111 E.Restricting Injunctions Against Libels of Public Officials or Public Figures? ........................................................................................ 113 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 DISCRETION ................................................. 120 VIII.BEYOND THE FIRST AMENDMENT IN STATES THAT HAVE REPEALED CRIMINAL LIBEL LAWS ........................................... 124 IX.BEYOND THE FIRST AMENDMENT: ERIE AND FEDERAL COURTS .................................................................................. 128 X.BEYOND LIBEL: FALSE LIGHT, INTERFERENCE WITH BUSINESS RELATIONS, DISCLOSURE OF PRIVATE FACTS, AND MORE ........ 129 A.Nondefamatory Falsehoods About People ............................................ 130 B.Slander, Trade Libel, Slander of Title, and Injurious Falsehood ............ 132 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 2019] Anti-Libel Injunctions 75 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 1 For examples of such injunctions enforced through threat of jail, see infra Appendix D. 2 See OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 8 (1978) (making a similar point about injunctions generally); Doug Rendleman, The Defamation Injunction, 56 SAN DIEGO L. REV. 615 (2019); see also United Transp. Union v. State Bar of Mich., 401 U.S. 576, 581 (1971) (noting, as to an injunction against nonlibelous speech, that an injunction, “like a criminal statute, prohibits conduct under fear of punishment,” and that courts must therefore “look at the injunction as we look at a statute”). 3 See, e.g., MODEL PENAL CODE § 250.7 cmt. (AM. LAW INST., Tentative Draft No. 13, 1961) (discussing “the paucity of prosecutions and the near desuetude of private criminal libel legislation”). 4 E.g., RONALD D. ROTUNDA, JOHN E. NOWAK & J. NELSON YOUNG, TREATISE ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE 163 n.8 (1986) (“It has long been established that courts simply cannot enjoin a libel. Such an injunction would be contrary to equitable principles and would violate the first amendment.” (citations omitted)); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 861-86, 1039-61 (2d ed. 1988) (failing to mention the possibility of injunctions in the defamation section of the treatise, while discussing damages in great detail, and not mentioning defamation in the injunction section of the treatise). 5 Even some sources that recognize that there’s a split of authority say that “the majority view” is “that, absent extraordinary circumstances, injunctions should not ordinarily issue.” NYC Med. Practice, P.C. v. Shokrian, No. 19-cv-162 (ARR) (RML), 2019 WL 1950001, at *3 (E.D.N.Y. May 1, 2019) (quoting Miller v. Miller, No. 3:18-cv-01067 (JCH), 2018 WL 3574867, at *2 (D. Conn. July 25, 2018) (quoting in turn Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001))). As Appendix A shows, this is now a minority view, and a small minority at that. 6 E.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). 7 Even people who have libel insurance don’t want to risk losing it. 8 Even defamation in a credit report will usually stop when the credit agency is shown its error (and especially when it is ordered to pay damages). 76 University of Pennsylvania Law Review [Vol. 168: 73 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. § 230(c)(1) generally immunizes intermediaries, such as search engines or online
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