Freedom of Speech, Defamation, and Injunctions

By Ardia, David S. | William and Mary Law Review, October 2013 | Go to article overview

Freedom of Speech, Defamation, and Injunctions


Ardia, David S., William and Mary Law Review


III. A NEW APPROACH EMERGES IN THE TWENTIETH CENTURY

As Part II reveals, as late as the second half of the twentieth century, American courts considered it settled that libelous speech could not be enjoined, even after a finding of defamation. In the later part of the twentieth century, this started to change, as an increasing number of courts began granting and upholding injunctions in defamation cases. This section traces that change and examines the justifications judges proffered when departing from the no-injunction rule.

A survey of more than 242 decisions involving injunctions directed at defamatory speech reveals that at least fifty-six decisions have granted or affirmed injunctions, with an especially sharp increase in such decisions after 2000. (189) While these cases covered a broad range of expression, including oral statements, (190) books, (191) letters, (192) trade publications, (193) signs, (194) and even cars, (195) nearly half involved speech on the Internet. (196)

Although some courts neglected to address the relevant constitutional and equitable principles involved before granting an injunction, (197) those courts that did analyze the propriety of injunctive relief invariably noted the no-injunction rule, but nevertheless relied on at least one of three justifications for departing from the rule: (1) the speech impugned the plaintiffs property interest; (2) the defendant engaged in a continuing course of conduct that caused the plaintiff harm; or (3) the speech had been adjudged to be defamatory.

A. Exceptions to the No-Injunction Rule

1. Speech That Impugns Property Interests

One of the earliest exceptions to the no-injunction rule was based on the belief that a court could issue an injunction if the order was directed at preserving business or other property interests. (198) We see this solicitude for property rights in cases in which the defendant is alleged to have defamed the plaintiff by questioning the legitimacy of his patents (199) or the quality of his products or services, (200) and in claims for tortious interference with contracts or business relationships. (201) In essence, these courts held that an injunction was proper because the plaintiff had an interest in something other than personal reputation.

The indulgent treatment accorded to plaintiffs when property interests are at stake is evident in other doctrinal areas as well, especially in copyright cases, in which courts are "unquestionably more favorable to plaintiffs than to defendants." (202) According to Professors Mark Lemley and Eugene Volokh, who wrote the definitive treatment of injunctive relief in intellectual property cases, injunctions---even preliminary injunctions--are granted as "a matter of course" to prevent copyright infringement. (203) Indeed, in intellectual property cases, courts view protection of the plaintiffs property interests as clearly superior to any countervailing speech interests. As Professor Wendy Gordon noted, "The incantation 'property' seems sufficient to render free speech issues invisible" in such cases. (204)

Given that "property interests" enjoy no special dispensation under the First Amendment, (205) this justification for granting an injunction directed at defamatory speech makes little sense. Moreover, it seems perverse to say that a plaintiff who is being ostracized by her neighbors due to defamatory speech is not entitled to equitable relief, whereas the owner of the local car repair shop can get an injunction because his business is suffering. This is precisely the reasoning an Indiana court relied on in Barlow v. Sipes:

   A business flourishes or folds on its reputation in a community,
   and it appears that Sipes Body has cultivated a very good
   reputation in the Lawrence County area. However, the record
   indicates that the Barlows' statements have somewhat eroded this
   good name, and equitable relief is the most efficient and practical
   means of ensuring that the good will of Sipes Body is not destroyed
   pending the resolution of the tort suits. … 

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Freedom of Speech, Defamation, and Injunctions
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