Buffalo Law Review Volume 56 Number 3 Article 2 7-1-2008 Injunctions for Defamation, Juries, and and the Clarifying Lens of 1868 Stephen A. Siegel DePaul University College of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview Part of the Constitutional Law Commons, and the Torts Commons Recommended Citation Stephen A. Siegel, Injunctions for Defamation, Juries, and and the Clarifying Lens of 1868, 56 Buff. L. Rev. 655 (2008). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol56/iss3/2 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. BUFFALO LAW REVIEW VOLUME 56 JULY 2008 NUMBER 3 Injunctions for Defamation, Juries, and the Clarifying Lens of 1868 STEPHEN A. SIEGELt INTRODUCTION Over the past half century, constitutional protection for freedom of speech has broadened' and strengthened. 2 In t Distinguished Research Professor and Associate Dean for Research, Scholarship, and Faculty Development, DePaul University College of Law. The author thanks Alfred Brophy, Andrew Gold, Mark Moller, and Spencer Waller for critical commentary on earlier drafts. My interest in injunctions for defamation began when I participated in the Brief Amici Curiae of Historians Alfred L. Brophy, Paul Finkelman, Kermit L. Hall, Michael I. Meyerson, and Stephen A. Siegel in Support of Petitioners, Tory v. Cochran, 544 U.S. 734 (2005). This article differs, to some extent, with the history discussed therein and adds a focus on the Reconstruction period. Any mistakes in this revised and augmented discussion are attributable to me. 1. Areas that used to be excluded from First Amendment protection have been included. Commercial speech and defamation are two examples. Compare Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (protecting commercial speech), with Valentine v. Chrestensen, 316 U.S. 52 (1942) (stating commercial speech is outside First Amendment); compare New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (supporting stringent protection of defamatory speech about public officials), with Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (listing "the libelous" among unprotected types of speech). 2. Compare, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969) (stating advocacy of crime protected by stringent "clear and present danger" test), with Dennis v. United States, 341 U.S. 494 (1951) (stating advocacy of crime protected by balancing formulation of danger test) and Whitney v. California, 274 U.S. 357 (1927) (stating advocacy of crime protected by "bad tendency" test). Consider also the increasing stringency of the application of the law protecting fighting words, political donations, and commercial speech. See, e.g., FEC v. Wisconsin Right to Life, Inc., 127 S.Ct. 2652, 2674-79 (2007) (Scalia, J. 655 656 BUFFALO LAW REVIEW [Vol. 56 only a few areas has it weakened. 3 This Article is about one of the areas of weakening protection: injunctions for defamation. Defamation is one of the most prominent areas that generally receives far greater protection than it did a half 4 century ago. Before New York Times v. Sullivan, defamation was a strict liability tort.5 Speech that was 6 simply mistaken could be the predicate for civil liability. Now there is a complex body of highly protective rules guarding defamatory speech. 7 On matters of public concern, there can be no liability without "actual malice" if a public figure or official is involved, and no liability without negligence if the remarks concern a private figure.5 An award of presumed or punitive damages also requires concurring in part and concurring in the judgment) (urging strict scrutiny for campaign donations); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (urging strict scrutiny of commercial speech and applying intermediate scrutiny test stringently); ERWIN CHEMERINSKY, CONSTITUTIONAL LAW 1002-08 (3d ed. 2006) (discussing Court's greater protection for fighting words). In general, on the strengthening of First Amendment protections, see Stephen A. Siegel, The Death and Rebirth of the Clear and Present Danger Test, in TRANSFORMATIONS IN AMERICAN LAW (Alfred Brophy & Daniel Hamilton eds.) (forthcoming 2008) (recounting the rise, fall, and transformation of the clear and present danger test); Stephen A. Siegel, The Origin of the Compelling State Interest Test and Strict Scrutiny, 48 J. OF AM. LEGAL HIST. 355 (2006) (tracing strict scrutiny to First Amendment cases in the early 1960s). 3. Sexually oriented expression is the primary area. Obscenity has never been protected, but over the past-half century the conception of obscenity has broadened. Compare Miller v. California, 413 U.S. 15, 39 (1973) (stating obscenity is a prurient work that "lacks serious literary, artistic, political, or scientific value"), with A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 418 (1966) (stating obscenity is based on judicial determination that prurient speech is "utterly without redeeming social value"). In addition, non-obscene sexually oriented speech has become less protected as low-value expression. See, e.g., City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002). 4. 376 U.S. 254 (1964). 5. See also DAN B. DOBBS, THE LAW OF TORTS 1120 (2000); 1 RODNEY A. SMOLLA, LAW OF DEFAMATION § 1:7 (2d. ed. 1999). 6. See DOBBS, supra note 5, at 1119-20; 1 SMOLLA, supra note 5, §§ 1:7-1:8. 7. See CHEMERINSKY, supra note 2, at 1045-55; DOBBS, supra note 5, at 1121, 1169-72; SMOLLA, supra note 5, passim. 8. See CHEMERINSKY, supra note 2, at 1045-55; DOBBS, supra note 5, at 1121, 1169-72; SMOLLA, supra note 5, §§ 1:17-1:20. Whether the current law for remarks about private figures and matters not of public concern differs from the traditional common law is unclear. See CHEMERINSKY, supra note 2, at 1054-55; DOBBS, supra note 5, at 1121; SMOLLA, supra note 5, § 1:20. 2008] INJUNCTIONS FOR DEFAMATION 657 "actual malice."9 In addition, judges are required to review jury determinations de novo and make independent determinations of whether the speech is defamatory and made with the requisite state of mind.10 Bucking this trend is the fact that enjoining defamation has more support today than fifty years ago. A half century ago enjoining defamatory speech was impermissible. As stated by a leading treatise on defamation: "One of the unwavering precepts of the American law of remedies has long been the axiom that equity will not enjoin a libel."'" Now, the rule is less certain. Over the past thirty years, several state courts of last resort have upheld injunctions restraining defamatory speech.' 2 So have federal appellate courts. 13 In 2005, the Supreme Court granted certiorari on the issue but issued an inconclusive opinion because the plaintiff died before an opinion could issue. 14 During oral argument, however, several Justices expressed sympathy for the plaintiffs plight and the need, if not the constitutionality, of enjoining speakers from repeating 9. CHEMERINSKY, supra note 2, at 1053; DOBBS, supra note 5, at 1121; SMOLLA, supra note 5, § 1:19. 10. See CHEMERINSKY, supra note 2, at 1047; 2 SMOLLA, supra note 5, §§ 12:83-12:86. 11. 2 SMOLLA, supra note 5, § 9:85. See also DOBBS, supra note 5, at 1193-94; Michael I. Meyerson, The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and the Separation of Powers, 34 IND. L. REV. 295, 308-11, 324-330 (2001); Annotation, Injunction as Remedy Against Defamation of Person, 47 A.L.R.2D 715, 715-16 (1956). 12. See, e.g., Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339 (Cal. 2007); Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga. 1975); Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1 (Minn. 1984); O'Brien v. Univ. Cmty. Tenants Union, Inc., 327 N.E.2d 753, 755 (Ohio 1975). See also Sid Dillon Chevrolet-Oldsmobile-Pontiac, Inc. v. Sullivan, 559 N.W.2d 740, 747 (Neb. 1997) (dicta) (indicating approval of post-trial injunction of defamation). Several intermediate state courts have approved injunctions for defamation. See, e.g., Barlow v. Sipes, 744 N.E.2d 1, 9-10 (Ind. Ct. App. 2001); Bingham v. Struve, 591 N.Y.S.2d 156, 158 (N.Y. App. Div. 1992); Dickson v. Dickson, 529 P.2d 476, 478 (Wash. Ct. App. 1975). 13. See, e.g., San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230, 1237 (9th Cir. 1997); Brown v. Petrolite Corp., 965 F.2d 38, 50- 51 (5th Cir. 1992); Lothschuetz v. Carpenter, 898 F.2d 1200, 1208-09 (6th Cir. 1990). See also Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir. 1991) (criticizing the no-injunction rule but applying it in a diversity case because that was required by state law). 14. Tory v. Cochran, 544 U.S. 734, 736-39 (2005). 658 BUFFALO LAW REVIEW [Vol. 56 defamatory statements. 15 This Article seeks to revise our understanding of the traditional rule's history and to discuss the implications of that revision for the current debate on the no-injunction rule's continued propriety. 16 The historiography of the rule traces back to Roscoe Pound's article Equitable Relief Against Defamation and Injuries to Personality.17 Pound was the seminal critic of the traditional rule.'8 He initiated its academic criticism in 1916.