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7th Circuit Discusses but Does Decide Issue if Injunctions can Ever Enter to Restrain Speech Adjudicated as Defamatory

An injunction against speech harms not just the speakers but also the listeners (in this case the viewers and readers). “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the pub-lic may draw.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“the Constitution protects the right to receive information and ideas”). The injunction in this case is so broad and vague that it threatens to silence Fuller and Hartman completely.

The issue of whether an injunction can ever issue to forbid even defamatory speech from being published, even after a court has determined such speech to be defamatory, has never been decided by the Supreme Court.  Without deciding this issue, the 7th Circuit Court of Appeals discussed it in detail in a recent opinion, McCarthy v Fuller.  You can view the opinion here.

A prominent First Amendment and defamation law commentator had this to say regarding the differences of opinion on the injunction issue by the majority and concurring justices:

The majority and concurring opinions agreed that the trial judge had wrongly based his issuance of the injunction on a general jury verdict finding the defendants liable for substantial defamation  damages for having made certain statements, because although the statements enumerated in the jury instructions, the jury was asked only for a general verdict and hence had not specified which of the statements was false and uttered with the relevant mens rea.  The majority opinion, authored by Judge Posner, reasoned that even assuming that an injunction can ever be issued in a libel case, it must be limited to statements that have been specifically found defamatory, and yet the injunction not only forbade the defendants from making any of the statements mentioned in the jury instructions (without a specific adjudication of any of them), but required defendants to take down an entire web site that not only contained many statements about the plaintiffs whose veracity and actionability had never been adjudicated, but also contained a number of statements that were not about the plaintiffs at all and hence could not possibly have been the basis of a libel judgment in the case.

In this respect, on which the concurring opinion agreed, the case stands only as a useful reminder of the well-established point that an injunction against allegedly defamatory speech can be granted, if at all, only if judgment has been granted against specific statements after full and fair proceedings. …

Both the majority  opinion and the concurring opinion bristle with interesting passages about defamation injunctions and the limiting principles of both the First Amendment and the old rule that “equity will not enjoin a libel.”  One statement, which appears twice in almost identical language in the majority opinion … is that “enjoining speech harms listeners as well as speakers.”

The “interest of the reader” consideration played an important role in the majority’s analysis because the defendants failed to respond timely to the plaintiffs’ motion for injunctive relief and hence were held below to have waived their objections to the injunction.  (Indeed, defense counsel were apparently so unprofessional that the trial court assessed sanctions of attorney fees and costs nearly twice the amount of libel damages; in affirming that award the majority was highly critical of counsel’s litigation tactics.) But the majority decided that, waiver notwithstanding, the trial court had to consider the public interest before issuing an injunction, and hence the viability of the injunction had to be considered on appeal despite the waiver below.

The concurring opinion took no issue with all of this.  What divided the majority and concurring opinions was the judges’ analyses of the question whether an injunction can be granted even against the repetition of  specific statements whose false and defamatory character has been adjudicated in the litigation.  This is an open question under the First Amendment; the Supreme Court granted certiorari to decide it a decade ago in Tory v. Cochran, only to duck the issue when the plaintiff in that case died after argument.  As the opinion reflects, both sides hotly contested that issue in their briefs …

In concurring, Judge Sykes was unimpressed with the majority’s reasoning based on impecunious defendants (because poor defendants should not have lesser rights than well-heeled ones). More generally, Judge Sykes’ concurring opinion seemed more dubious of such an injunction’s propriety, citing for example, the possibility that even if a statement is false or uttered with the relevant mens rea when made, it may become true later or, at least, the defendant’s mens rea (or the relevant standard of care!) might be different at a later stage.  However, she based her disagreement about the terms of the remand only on the plaintiffs’ failure to demand a detailed verdict form, to ask the trial judge to cure the flaw in the injunction, or to ask for a remand for that purpose.  So on this theory, the appellants’ waiver does not bar appellate consideration of the issue, but the appellees’ waiver does?   That gets the usual waiver rules a bit backwards.

Judge Sykes also noted the interesting question whether, having failed to ask for a specific verdict on specific statements, the plaintiffs should even be allowed to ask the judge to make findings about specific statements to support an injunction; she did not have to decide that question based on her procedural approach to the appellate mandate – but if findings on specific statements could support a libel injunction, would they have to be jury determinations?

Whether  an injunction may ever issue against a fully adjudicated defamatory statement is a question on which I myself have not taken a position.  If defamation is a real problem and deliberately defamed individuals ought to  be given effective remedies, the possible insufficiency of a damages remedy in some circumstances ought to be a real concern.  Moreover, what many libel plaintiffs want most is to have falsehoods that hurt their feelings and damage their reputations and even their business taken down.  So proponents of injunctive relief worry that the real agenda that causes some advocates of withholding the injunction remedy, even after trial, is to further the objective of discouraging even valid libel suits. …

And yet what some of us worry about in the public interest and civil liberties world is that sometimes perfectly valid statements are not defended in litigation because the plaintiff can afford to sue but the defendant cannot afford to defend, so the result is a libel judgment by default; in those circumstances, should such a judgment support an injunction that takes a possibly-true statement out of the marketplace of ideas?   Might the better rule not be one that allows actionable speech to remain available while fostering the availability of counter-speech?

Judge Sykes’s very well reasoned concurrence had this to say on the issue:

Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] … the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir. 2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Kramer v. Thomp-son, 947 F.2d 666, 677 (3d Cir. 1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. Nos. 14-3308, 15-1839 17 REV. 157, 167–68 (2007); Michael I. Myerson, The Neglected His-tory of the Prior Restraint Doctrine: Rediscovering the Link Be-tween the First Amendment and the Separation of Powers, 34 IND. L. REV. 295, 308–22 (2001).
The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of de-famatory newspapers, magazines, or other periodicals. 283 U.S. at 702, 723; see id. at 712 (“[S]uppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute.”).
An emerging modern trend, however, acknowledges the general rule but allows for the possibility of narrowly tailored permanent injunctive relief as a remedy for defamation as long as the injunction prohibits only the repetition of the specific statements found at trial to be false and defamatory. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 308–09 (Ky. 2010); Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 347–49 (Cal. 2007); Sid Dillon Chevrolet v. Sullivan, 559 N.W.2d 740, 746–47 (Neb. 1997); Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984); Retail Credit Co. v. Russell, 218 S.E.2d 54, 62–63 (Ga. 1975); O’Brien v. Univ. Cmty. Tenants Un-ion, Inc., 327 N.E.2d 753, 755 (Ohio 1975); see also Lothschuetz v. Carpenter, 898 F.2d 1200, 1208–09 (6th Cir. 1990) (Wellford, J., concurring in part and dissenting in part); id. (Hull, J., joining Judge Wellford’s opinion on this question). These cases appear to draw general lessons from the Supreme Court’s deci-sions in Pittsburgh Press Co. v Pittsburgh Commission on Human Relations, 413 U.S. 376, 389–91 (1973), and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441–45 (1957). I’m not sure I agree with this modern trend.
Pittsburgh Press upheld an order prohibiting a newspaper from organizing its classified advertising section in a way that allowed employment ads to discriminate on the basis of sex—for example, by having separate columns for “Male Help Wanted” and “Female Help Wanted.” 413 U.S. at 379–80. In Kingsley Books the Court upheld an injunction prohibiting the distribution of a particular booklet found to be obscene after a full trial. 354 U.S. at 445.
Pittsburgh Press and Kingsley Books arose in distinctive settings that make it difficult to map their holdings onto defamation law. Perhaps most notably, Pittsburgh Press did not ad-dress an injunction at all, but instead involved a regulatory order issued by a municipal commission that lacked the power to punish by contempt. 413 U.S. at 390 n.14. And the type of speech at issue in Kingsley—an obscene booklet—suggests to me that some caution is in order before trying to extrapolate a general rule. Defamation is materially different from obscenity. There’s a meaningful distinction between enjoining the distribution of a particular pamphlet once it’s been found to be obscene and enjoining a person in perpetuity from uttering particular words and phrases. Defamation by its nature is highly contextual. A statement that is defamatory in one circumstance, time, or place might not be defamatory in another circumstance, time, or place. A permanent injunction as a remedy for defamation does not account for constantly changing contextual factors that affect whether the speech is punishable or protected. If factual circumstances change in a way that affects the defamation calculus, the person enjoined must risk contempt or seek the court’s permission to speak. As the Court said emphatically in Near, “[t]his is the essence of censorship.” 283 U.S. at 713.
The emerging trend, moreover, is far from an inexorable movement toward a new doctrine. In a thoughtful opinion, the Third Circuit predicted that the Pennsylvania Supreme Court would not relax the general rule that equity will not enjoin a libel. Kramer, 947 F.2d at 677–79. Similarly, the Texas Supreme Court has recently held, also in a thorough and thoughtful opinion, that a permanent injunction as a remedy in a defamation case is an impermissible prior restraint on speech. See Kinney v. Barnes, 443 S.W.3d 87, 94–99 (Tex. 2014). Kinney was decided as a matter of state constitutional law, but the court noted that the state constitution’s free-speech guarantee is governed by First Amendment standards, at least on this particular question. Id. at 91–92 (“We know of nothing to suggest that injunctions restricting speech should be judged by a different standard under the state constitution than the First Amendment.”) (quotation marks omitted).

Our Chicago libel and slander lawyers concentrate in this area of the law. We have defended or prosecuted a number of defamation and libel cases including cases representing a high profile athlete against a well known radio shock jock, a consumer sued by a large car dealer in federal court for negative internet reviews and videos, one of Loyola University’s largest contributors when the head basketball coach sued him for libel after he was fired, a lawyer who was falsely accused of committing fraud with the false allegation published to the Dean of the University of Illinois School of Law where the lawyer attended law school and the President of the University of Illinois.

Our Chicago defamation attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Naperville, Burr Ridge and Hinsdale, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

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DiTommaso Lubin Austermuehle’s Crete and South Chicago Heights’s defamation and slander lawyers have more than two and half decades of experience helping business clients unravel the complexities of Illinois and out-of-state business laws. Our Chicago business, commercial, class-action and consumer litigation lawyers represent individuals, family businesses and enterprises of all sizes in a variety of legal disputes, including disputes among partners and shareholders as well as lawsuits between businesses and and consumer rights, auto fraud, and wage claim individual and class action cases. In every case, our goal is to resolve disputes as quickly and successfully as possible, helping business clients protect their investments and get back to business as usual. From offices in Oak Brook, near Olympia Fields and Homewood, we serve clients throughout Illinois and the Midwest.

If you are the victim of a defamatory attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line at Yelp or anywhere else, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at (877) 990-4990 or online by filling out our contact us form.