Freedom of Speech, Defamation, and Injunctions

By Ardia, David S. | William and Mary Law Review, October 2013 | Go to article overview
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Freedom of Speech, Defamation, and Injunctions


Ardia, David S., William and Mary Law Review


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.

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