by Paul Alan Levy
Last week the Seventh Circuit addressed several recurring issues pertaining to libel law in McCarthy v. Fuller, a case involving a falling out between by two sets of religious advocates pertaining to the holiness of certain alleged apparitions of the Virgin Mary. (Choice characterization on Techdirt: “The details of the actual case fall into the ‘somewhat nutty’ category, involving some religious stuff that we'll skip over as not relevant.”) The court unanimously overturned an injunction granted in the case on the grounds that it was overbroad, although there was strenuous disagreement among the judges about whether a narrowed injunction could be granted on remand.
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. (There is no question but that a preliminary injunction or TRO against defamation is a prior restraint forbidden by the First Amendment under Organization for a Better Austin v Keefe).
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 and which particularly tickled Eugene Volokh’s fancy is that “enjoining speech harms listeners as well as speakers.” (Indeed, the Volokh Conspiracy published three separate blog posts in a single day about different aspects of the case!)
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 opinion did not explain the source of the requirement that the public interest be considered, but it strikes me that this is one prong of the standard test for the issuance of equitable relief, and in a case where state law supplies the cause of action, state law would likely establish the standards for equitable relief (although this is another issue on which scholars differ).
The Viability of Statement-Specific Injunctions
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, and the Electronic Frontier Foundation's amicus brief, and joined by Lyrissa Lidsky and Erwin Chemerinsky, was addressed solely to that issue. Neither opinion reached a final conclusion, although Judge Posner’s majority opinion strongly suggested that it was inclined to allow such injunctions because, otherwise, a defamed plaintiff is left without any remedy against a judgment-proof defendant. Consequently, the majority remanded the case to allow the trial judge to decide whether to issue a statement-specific injunction.
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. David Ardia recently canvassed these issues in an article (not noticed by either opinion) that argues powerfully for the view that equity can and should enjoin statements adjudicated as defamatory.
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?
Federal or State Law — and the Law of Which State?
An oddity of the two opinions is that they appear to address the injunction issue based only on the First Amendment, without any attention either to state-law considerations that might have made it unnecessary to decide the First Amendment question or, indeed, to the fact that some of the cases and principles they discussed were state law issues. The majority opinion cites a decision of the California Supreme Court (Balboa Island Village Inn v. Lemen) without acknowledging that the
decision rested both on the United States Constitution and on California’s constitution, as well as on general equitable principles, and the concurring opinion canvassed at some length disagreements among state appellate courts about the traditional rule, recently under some attack, that “equity will not enjoin a libel”). This, of course, is a state-law principle, although Judge Sykes does not acknowledge that!
Indeed, both opinions addressed policy preferences that most appealed to the judges without recognizing that, to the extent state law is at issue, it is the policies favored by the state appellate courts that matter. At the very least the concurring opinion, which openly rested on an analysis of equitable principles, should have paid attention as well to whether it is the law of the Indiana forum (also the home of the defendants) or of Ohio (where the libel plaintiffs reside) that governs this question.
Perhaps the two opinions ignored the choice of law question, and failed to treat the issue as in part one of state law, because the parties (and amici) briefed only the First Amendment issue. But if it was the interests of the reader that demanded consideration of the injunction’s scope, which had otherwise been waived below, presumably the relevant public interest implicated state-law objections as well as constitutional objections.