Federal Court Applying W. Va. Law Issues Anti-Libel Injunction, Which W. Va. Law Appears to Forbid

Today’s decision in McLaughlin against Knight (N.D. W. Va.), adopts Report and Recommendations, which entered default judgment for plaintiff in a case of libel. In the original libel, plaintiff was accused of sexually assaulting a twelve-year-old girl. Due to the differences of citizenship among the parties, the case was argued under West Virginia law.

This is an interesting legal turn. The court ordered “Defendant” to refrain from publishing similar or identical statements about Plaintiff. Although narrow anti-libel order are considered constitutional, they can be interpreted as such under the modern First Amendment. West Virginia is one of few states that prohibits them. The district court ought to have applied West Virginia’s law instead and not issued the injunction. Injunctions against the publication of “similar statements” are also unconstitutionally vague.

I submitted an amicus brief on my own behalf so arguing; the court denied as moot my motion for leave to file the brief—but I assume that it did read the brief, and just concluded that my arguments were mistaken. The Fourth Circuit will not be able to decide the issue because the defendant isn’t participating in litigation. However, I wanted to share my brief once again in the event that anyone might be interested.

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[1.]Unter ErieThis Court shouldn’t issue injunctions unless the state law allows it. Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015); Kramer V. Thompson, 947 F.2d 666, 676 (3d Cir. 1991). West Virginia’s law prohibits anti-libel actions.Kwass v. Kersey, 81 S.E.2d 237, 245 (W. Va. 1954).

[2.]Even if this Court believes West Virginia law doesn’t allow for such an anti-libel order, it would be ruled that the First Amendment does not prohibit it. However, the First Amendment will not prevent the court from granting the plaintiff sufficient procedural protections if the junction has been properly narrowed.

[I.]West Virginia law that should be used here ErieIt appears that the Anti-Libel Injunctions Act prohibits them

Erie The doctrine demands that courts apply the state substantive law in cases of diversity to any request for permanent injunctive relief.” Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015). 2015 Erie“Rule: Discouragement of forum-shopping, and avoidance inequitable administration. LaShawn A. Moore v. Barry, 144 F.3d 847, 853 (D.C. Cir. 1998) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)). In some circuits the matter may be uncertain. see, e.g., Peterson V. Bell Helicopter Textron, Inc., 806 F.3d 335, 341 n.7 (5th Cir. 2015) (so noting), but this Circuit’s view appears to be set forth by Lord & Taylor.) Kramer, v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991 (expressing sympathies for First Amendment injunctions but concluding Pennsylvania law prohibits them and so reversing an injunction).

West Virginia law also seems to ban anti-libel Injunctions Kwass v. KerseyIn 81 S.E.2d 238, 245 (W. Va. 1954), it was stated that “we have not found any authority in the United States that holds that mere insult can be enjoined” and that therefore an anti-libel order could be reversed. Roberts V. Stevens Clinic Hosp., Inc., 345 S.E.2d 791 (W. Va. 1986), KwassEven though it was not a libel case the judge voted in favor of the idea that West Virginia Constitution still recognizes the right to trial by jury.

[II.]A court injunction that is granted should not be broadened and must include adequate procedural safeguards.

While there is no doubt that anti-libel laws are becoming more popular in the United States, they have been allowed in many states. This is because of the fact that a judge has decided certain speech is not protected by the Constitution. Only six states (including West Virginia) prohibit such injunctions. Eugene Volokh, Anti-Libel Orders, 168 U. Pa. L. Rev. 73, 77, 137-46 (2019), http:/‌/‌www.‌law.‌ucla.‌edu/‌volokh/‌libelinj.‌pdf. If properly restricted, injunctions like this should be considered consistent with the First Amendment. See ID.See 105-17. For Fourth Circuit cases holding such a conclusion, see Brennan v. Stevenson, Civ. No. JKB-15-2931, 2015 WL 7454109, at *5 (D. Md. Nov. 24, 2015) (dictum) (taking the view that an anti-libel injunction would be a permissible injunction against “unprotected speech,” and thus consistent with the First Amendment); Maye v. Worrell, No. 13-cv00510, 2013 WL 5545077, at *3 (M.D.N.C. Oct. 8, 2013. (issuing an injunction against libel and rejecting First Amendment objection).

And perhaps Kwass Should not be relied upon, due to its emphasis on the distinction between equity and law. see, e.g., 81 S.E.2d at 243-46—a distinction abolished in West Virginia in 1960, State ex rel. AmerisourceBergen Drug Corp. v. Moats, 859 S.E.2d 374, 383 (W. Va. 2021). Indeed, in Delaware, which still maintains a sharp law/equity distinction, the Court of Chancery held that Delaware’s chancery courts generally lack jurisdiction over libel cases in the first instance, but expressly left open the possibility that, once the law court concludes—after a jury trial, if the parties opt for it—that a statement is libelous, an injunction could then be issued. Organovo Holdings, Inc. v. Dimitrov, 162 A.3d 102, 122, 124-26 & n.105 (Del. Ch. 2017). The Court could certify the West Virginia Supreme Court of Appeals.See also: W. Va. Code § 51-1A-3) the question whether anti-libel injunctions remain forbidden under West Virginia law.

If the Court finds (1) that certification is not necessary, (2) that anti-libel Injunctions can be granted, (3) that an injunction in this instance is required, then it should ensure that the injunction has been crafted with sufficient detail and the appropriate procedural safeguards.

[A.]Injunctions should exclude the term “similar statements”.

First, the proposed injunction would ban defendant from making “the same or similar statements about Plaintiff that are the subject of this matter,” Report & Rec. 8. at 8. McCarthy v. Fuller, 810 F.3d 456, 461 (7th Cir. 2015):

Furthermore, the preamble to the injunction greatly extended the reach of that injunction, prohibiting any “similar statements”. [that is, similar to the injunction’s specific prohibitions]They contain the exact same type of allegations or inferences (in any forum or manner) as those in the body. This expansion was not right. A prohibition injunction should be clear about what it bans. Fed.R.Civ.P. 65(d)(1). What could be the purpose of vague terms like “similar” or “same types”?

The injunction could be reworded to read, “The Court forbids defendant from libelously declaring that Defendant had had a sexual relationship or assaulted her child when she was minor” (if the Court finds that those statements are false).

[B.]Procedural protections provided by the injunction must be at least as strong and constitutionally valid as criminal libel legislation

A second anti-libel Injunction acts like a very small criminal law regarding the statements of this plaintiff. McLaughlin could make libelous remarks about Knight under this injunction, or face criminal contempt charges. The Constitution allows for narrowly written criminal law libel laws that conform to First Amendment rules. Both civil and criminal libel cases are subject to the same constitutional restrictions. Herbert v. Lando, 441 U.S. 153, 157 & n.1 (1979); Garrison v. Louisiana379 U.S. 64. 67 (1964). (taking the same views as Herbert); In re Gronowicz, 764 F.2d 983, 988 & n.4 (3d Cir. 1985) (en banc) (likewise); Phelps v. Hamilton, 59 F.3d 1058, 1073 (10th Cir. 1995). (upholding narrowly drawn criminal law libel statuteRyan and People806 P.2d 935 and 941 (Colo. 1991). (Same applies to speech concerning matters of private concern). An injunction must, however, maintain the procedural safeguards offered by criminal law to ensure it is constitutional.

Prior to speakers being jailed under a criminal law for libel,

  1. It must be proven that their statements are false at the time they were made.
  2. A finding of falsity must be supported by evidence beyond any reasonable doubt.
  3. This finding must be made by a jury—a Sixth Amendment requirement in those states where the criminal libel statute authorizes more than six months in jail,[1]However, it’s also a requirement of state law in any other states (except Louisiana) which allow criminal libel to be committed.[2]
  4. After a trial, an indigent defendant can have a court-appointed defense attorney who can claim that the statements are true, opinion or privileged.

These protections disappear when the speaker is charged with criminal contempt of violating an Anti-Libel Injunction. The defendant may have a court appointed lawyer, which is available if the defendant faces jail. However, the jury cannot find beyond a reasonable doubt the defendant did not say what the injunction prohibits. The jury will not be asked to determine beyond reasonable doubt whether the statement was falsified. The court-appointed lawyer can’t argue for the juror that it is true.

This problem is especially severe for defendants that could not afford a lawyer to represent them when they first requested an injunction. Injunction proceedings being civil, defendants will not have the right to a court appointed lawyer. It is possible that they would not have been able to prove the claim was truthful or protected. They might not be able to appeal if they lose at trial. In fact, it is possible that they felt so helpless by not having access to a lawyer that they did not contest the injunctions. It is possible that the injunctions were entered away from their home, which makes it difficult for them to litigate effectively. There are many reasons to question the accuracy of civil injunction proceedings, especially if a defendant isn’t present, cannot be represented, or otherwise unable to appeal.

It might seem like a natural consequence of the civil justice system. Civil judgments may be available for defendants who do not have the financial resources necessary to defend themselves.

Injunctions against Libel are issued by courts. Defendants could face jail time for repeated statements, even though they have never had legal representation to prove that these statements weren’t libelous.

Injunctions against falsified statements could also prevent true statements from being made. Injunctions against false statements can also be used to prohibit true statements. See, e.g., Greenbelt Coop. Pub. Ass’n v. Bresler398 U.S. 6. 13-14 (1970) (so ruling as regards to claims that a developer was involved in “blackmail”. However, an injunction that prohibits the repeated use of a statement without regard to context will still prevent it from being made.

Second, “[u]True statements could later be true. Unprivileged statements might become privileged later. Kinney v. Barnes, 443 S.W.3d 87, 98 (Tex. 2014 (giving reason to reject anti libel injunctions). A court might injunct a plaintiff from accusing him of sexual assault if it concludes that the plaintiff is not guilty. If the plaintiff is later accused of sexual assault, the injunction would still apply and forbid the watchdog to repeat the statement.

Yes, the defendant can go to court and modify the injunction. Balboa Island Vill. Inn, 40 Cal.4th 1141, 1161, 156 P.3d 339, 353 (Cal. However, this is costly and time-consuming. The defendant may also request that the court not instigate criminal contempt proceedings due to the newly discovered facts. see, e.g., Brandt v. Gooding, 636 F.3d 124, 135 (4th Cir. 2011. However, the judge can disagree with this statement or believe that defendants should have adhered to the injunction. A speaker should not “request permission from the trial court to speak truthfully to avoid being held contemptuously.” Kinney, 443 S.W.3d 98

These are the same principles that pre-Revolutionary libel trials used in criminal contempt cases for violations of anti-libel orders. A judge first decides whether or not a statement constitutes libel, while the criminal jury determines whether or not the defendant has published the statement. See, e.g., Kramer?, 947 F.2d 672 n.15

American law rejected the use of this method for criminal libel even though criminal libel charges were quite common. Instead, the Criminal Jury must decide if the statement is true or false. E.g.,Montee v. Commonwealth, 26 Ky. 132, 151 (1830) (denouncing the older English approach—leaving the jury to only decide the fact of publication—as “odious” and “subversive of personal security”). Anti-libel Injunctions should be treated in the same way, as they are enforced by criminal prosecution. See Willing, v. Mazzocone. . . [an injunction]appellant is denied the right to a trial by jury on the question of . . Truth or falsity . . .”); Organovo Holdings, Inc. v. Dimitrov, 162 A.3d 102, 124-25 (Del. Ch. 2017.

There’s a quick fix that allows anti-libel Injunctions to offer the protections needed for criminalizing speech.

  1. It should be clear that the injunction does not ban only specific statements. X About the plaintiff”) should be included, along with the explicit inclusion of the libelous character of the statements as part of the prohibited behavior. X “About the Plaintiff”
  2. The injunction should state that criminal contempt trials should only be brought before a jury (unless the defendant agrees to waive the jury trial).
  3. This injunction must state that the threat of civil contempt jail is not an option. It should also stipulate that the speaker cannot be imprisoned for speaking against the law. Kramer947 F.2d 668-69, (describing how the trial judge used civil contempt to place the defendant in jail until he made a confession.

Since the amended injunction prohibits libelous comments, the defendant would not be punished unless plaintiff or prosecutor in criminal contempt proceedings prove that the statement has been libelous. The injunction could also state explicitly that it prohibits libelous statements. It means:

  1. The defendant will not be criminally punished if the statement is proven libelous beyond reasonable doubt.
  2. If there are any risks of imprisonment, the court will assign a lawyer to represent the defendant. This person can help determine whether the statement was libelous.
  3. A criminal jury must find the statement were true, or the defendant may request it.
  4. The defendant could be acquitted if the circumstances or facts have changed and the statements were not false or libelous.

While this could make criminal contempt hearings longer and more costly for defendants, who would most likely support the prosecutor, it would be a good thing for both the plaintiffs and the court system. However, this is an inevitable consequence of protecting speech.

The extra cost need not be prohibitive. Although the civil case findings would not be used in criminal cases, they could still be used to support the civil case with minimal discovery or investigation.

Speakers could still be deterred by the injunctions. Only rare speakers would continue speaking after a court has found (albeit by a preponderance of the evidence) that their speech is false, and specifically ordered them—on pain of criminal punishment—to stop. The same would apply to criminal libel law if a speaker is given a warning by a prosecutor. However, if some speakers think they are able to win at a criminal contempt court trial they should have access to the common protections afforded by the criminal justice system.


West Virginia’s precedent seems to prohibit anti-libel orders; this indicates that there may be an exception. ErieThis Court should not infringe on this case. However, the Court may decide that this precedent does not hold true. An injunction could be consistent with First Amendment law if it is structured as this.

  1. The Court orders Defendant to stop falsely stating that Defendant had a relationship with her child when she was a teenager or sexually assaulted her.
  2. Jury trial will be held for any criminal contempt charges for violation of this injunction.
  3. This injunction may be violated by the defendant, but he or she is not subject to civil contempt.

[1] Check out Kan. Stat. Ann. §§ 21-6103, 21-6602 (2017 Supp.); Minn. Stat. Ann. § 609.765 (2016); N.M. Stat. Ann. §§ 30-1-6, 30-11-1 (2004); N.D. Cent. Code §§ 12.1-15-01 (2012), 12.1-32-01 (2012 & 2017 Supp.); Wisc. Stat. Ann. §§ 939.51, 942.01 (2015-16).

[2] See, e.g.Idaho Crim. R. 23(b) (right to jury trial for all misdemeanors); Mich. Ct. R. 6.401 (likewise); N.C. Gen. Stat. § 15A-1201 (2017) (likewise); Okla. Const. art. II, § 22 (jury in criminal libel cases); Utah Const. art. I, § 15 (likewise). New Hampshire penal libel law is not intended to allow jail time. N.H. Rev. Stat. Ann. §§ 644:11 (2016), 651:2(III) (2016 & 2017 Supp.).