Tuesday, August 27, 2013
David S. Ardia, University of North Carolia, Chapel Hill, School of Law, is publishing Freedom of Speech, Defamation, and Injunctions in the William & Mary Law Review (forthcoming). Here is the abstract.
It has long been a fixture of Anglo-American law that defamation plaintiffs are not entitled to injunctive relief; their remedies are solely monetary. Indeed, it has been repeated as a truism: “equity will not enjoin a libel.” This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints. But it may not be true, at least not anymore.
Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases. Prior to the widespread availability of digital publishing, most defamation lawsuits in the United States involved claims against the mass media. These defendants were amenable, at least in theory, to the threat of large damage awards and had professional and financial interests in maintaining their reputations for accurate reporting. Today, the defendants in defamation cases are more likely to be bloggers or users of social media, such as Facebook and Twitter. For this new crop of defendants, the threat of money damages does not appear to serve the same limiting function on their behavior.
While the Supreme Court has never held that an injunction is a permissible remedy for defamation, the past decade has seen a veritable surge in injunctions directed at defamatory speech, especially speech on the Internet. Despite this surge, courts have not clearly articulated why injunctions are permissible under the First Amendment and consistent with long-standing principles of equity. As a result, many judges — and scholars — remain confused about the availability and proper scope of injunctive relief in defamation cases.
This Article challenges the widely held view that defamation law does not countenance injunctions. In doing so, it presents the first comprehensive analysis of more than two centuries of case law involving injunctions in defamation cases. Reviewing these cases, it draws out the rationales, both constitutional and equitable, for the no-injunction rule. The Article concludes that while courts should be cautious when granting injunctions, a limited form of injunctive relief would be constitutional and consistent with equitable principles if it were limited solely to false statements on matters of private concern that a court has found — after full adjudication — are defamatory. It then describes how such a remedy could be structured so that it would be both effective and compatible with the First Amendment.
Download the article from SSRN at the link.