“Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases)” Now in @HarvardJLPP

It was something I had blogged about while I was working on it. But now, it is out. The Introduction

Certain injunctions restrict the speech of family members and ex-partners. Some injunctions restrict criticisms of professional (lawyers or doctors, real estate agents and financial advisers), who are accused of having had poor experiences. Others have also restricted their criticisms of judges and police officers.

Some ban all speech that is about the plaintiff or any online speech. Others have been narrower—for instance, banning all “derogatory” speech or all posting of photographs of the plaintiff—but were still not limited to speech that First Amendment law recognizes to be restrictable (such as libel or true threats or unwanted speech said to the plaintiff).

These injunctions often focus on online speech. However, the Court clarified that online speech and especially speech made on social media is protected as fully by the First Amendment.

As you can see, injunctions against such defendants either involve a defendant not represented or a default judgement against a defendant that did not appear. The First Amendment arguments against these injunctions likely were not effective presented to the court. Part I presents the evidence that I found regarding the injunctions.

These injunctions almost always are reversed when they go to appeal because they are against the First Amendment. This Part II will discuss the precedents, from both the U.S. Supreme Court as well as from the state and federal appellate court. This Part and the entire Article will prove to be particularly useful for judges, lawyers, pro se litigants, legal academics, and other professionals who deal with these cases. It is more practical for litigation because I go into detail about the federal and state appellate precedents than it would be for a law review article.

These injunctions have been upheld by courts based upon two similar theories. First, certain courts concluded that the First Amendment does not protect harassment. This means that any speech, especially when said frequently, is considered harassment if it has an intention to offend, embarrass or harass. The First Amendment does not protect speech that is merely private concern, according to some courts. These theories seem to be inconsistent with First Amendment precedents. Part III will address that.

The fourth part will discuss why the courts do this and what it means for wider debates around how “cheap speech”, the Internet’s influence on public discourse, how judges may view their roles in pragmatically resolving disputes, how they might deal with litigants that are irrational and thus uncontrollable by normal tools like civil damages liability.

There are many options available to victims of damaging speech, even if they have imperfect legal systems. The libel suit may be able to grant a specific injunction prohibiting defendants from making statements about a person that were found to be libelous during trial. In some states, criminal libel laws is also available. Another law that is applicable in some states, as well as federal law, are criminal harassment and cyberstalking laws. However, these may pose problems for the First Amendment. If Donna writes derogatory stuff You can find more information here Paul is more than Paul MoreHe may be able to obtain a restraining or temporary order in his favor to put an end to that.

However, the remedies I described in this Article don’t allow for a remedy. They may also interfere with speech regarding government officials or other significant figures. Sometimes they interfere with speech about matters of public concern such as the business treatment of consumers and alleged criminal conduct. Even when dealing with private matters, they can interfere with speech regarding what I refer to as “daily living matters”, which are also constitutionally protected.

It is understandable that persistent criticisms, often unfair or infuriating, can be distressing to the target. However, the Supreme Court and lower courts made it clear that such criticism cannot be silenced, even with damages and certainly not through injunctions.