Appeals Court Rejects Prior Restraint In Defamation Case; Could Have Gone Further

As highlighted by the folks at EFF, Judge Richard Posner has ruled in an appeal on a defamation case, tossing out an injunction against two individuals who defamed two other people. The details of the actual case fall into the "somewhat nutty" category, involving some religious stuff that we'll skip over as not relevant. What you need to know is that two people (Patricia Ann Fuller and Paul Hartman) were sued and found to have defamed Kevin McCarthy and Albert Langsenkamp. Some of those people go by other names and titles (including Mr. Langsenkamp referring to himself as a Papal Knight of the Holy Sepulchre), but we'll leave that aside. The court found in favor of the plaintiffs and said that the defamation occurred. The only real issue on appeal was whether or not the judge's decision to issue a very broad injunction against Hartman and Fuller was appropriate. And here we come to an issue that comes up semi-frequently in discussions of defamation cases: if you are found guilty of defamation, can you be (1) forced to take down the defamatory content and (2) barred from saying it again (or saying something like it)? For the most part, courts have said that you cannot have an injunction against defamation, because that's classic prior restraint in violation of the First Amendment. That is, the government cannot tell someone "you cannot say that." So, in most cases, the remedy for defamation is a monetary one (along with the satisfaction of a court ruling saying that what was said about you was false). There are some fairly narrow exceptions in some courts that have argued that it's okay to tell someone that they cannot repeat the very same statements found to be defamatory. However, while there are a bunch of rulings on this topic, it's never quite gone to the Supreme Court, so there's at least some ambiguity. In this case, the District Court judge basically ignored all of that and issued a massively broad injunction. Without having the jury specifically determine which statements were defamatory, the judge issued an injunction saying that they couldn't publish any of the statements that the plaintiffs claimed were defamatory -- or "any similar statements" -- and further ordered Hartman to take down his entire blog. That's pretty clear prior restraint, and indeed the three judges on the appeals court all agreed, throwing the case back to the district court. As Posner noted, the lawyers for Fuller and Hartman were... shall we say... not the most professional, which may have contributed to the result:

The conduct of the litigation in the district court by the lawyer representing Fuller and Hartman showed, as the district judge explained in granting the request for attorney’s fees, a serious and studied disregard for the orderly processes of justice. That disregard has persisted on appeal. Many of the grounds on which Fuller and Hartman seek reversal were waived, are frivolous, or are incomplete, with the important exception of the permanent injunction entered by the district judge, to which we devote the balance of this opinion.

Part of this included not filing a timely objection to the injunction, which in most cases would mean that this issue wouldn't be reviewed. However, Posner notes that given the seriousness of prior restraint and the First Amendment, it's still appropriate to explore this issue, especially since the public could be harmed:

Fuller and Hartman missed the deadline for responding to McCarthy’s motion for a permanent injunction, however, and ordinarily such a miss would have justified the judge’s rejecting any objection to the injunction as untimely. But the injunction in this case had the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.

Posner's main issue with the injunction is just how incredibly broad it is, and the fact that the jury never determined if each specific statement was defamatory. He stays away from the larger question of whether or not defamation can ever be enjoined, by noting that the broad nature of this injunction is reason enough to toss it:

But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were def