This article originally ran in The Legal Intelligencer on December 27, 2016.
While it remains an open question in Pennsylvania whether a defamation plaintiff can get a permanent injunction against defamatory speech in addition to damages, other states have answered that question in the affirmative, adopting the so-called "modern rule."
The modern rule, which allows permanent injunctive relief in defamation cases, hinges upon a jury's determination that the offending speech is defamatory. Courts adopting this rule have stressed the need to narrowly tailor the injunctive relief, so only the speech that has been adjudicated defamatory be permanently enjoined.
Those safeguards address First Amendment and prior restraint concerns, while helping defamation plaintiffs better vindicate their rights, by reasonably protecting their reputation and commercial interests. In the opinions of these authors, Pennsylvania should adopt the modern rule.
Perhaps the most compelling argument in favor of the modern rule is that money damages only tend to work when the defendant can satisfy a judgment. Or, as Seventh Circuit Judge Richard A. Posner stated in a recent opinion, refusal to ever issue an injunction in defamation cases "would make an impecunious defamer undeterrable," as in McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015).
With that in mind, defamation law seems particularly suitable for a rule permitting a court to enjoin the offending conduct after a trial on the merits. A defendant who is undeterred by the threat of another lawsuit, perhaps because she is insolvent, can simply return to defaming the plaintiff. With the explosion of social media platforms, this defendant has no shortage of outlets on which to go about her defamatory business. The modern rule helps prevent this.
Recognizing that the traditional rule against permanently enjoining defamatory speech is, as the Kentucky Supreme Court put it, "severely undercut" by the fact that defamatory speech is constitutionally unprotected, the Supreme Courts of California, Ohio, Georgia, Kentucky, Nebraska and Minnesota have all adopted the modern rule.
In Pennsylvania, the state Supreme Court last addressed the issue in 1978, denying the plaintiff an injunction. However, a procedural distinction in that case—that the plaintiff filed suit in equity and, therefore, a jury never assessed the veracity of the defendant's statements—has left as an open question whether the Pennsylvania Supreme Court would adopt the modern rule.
In Willing v. Mazzocone, 393 A.2d 1155 (Pa. 1978), two Philadelphia lawyers filed suit after one of their former clients took to the streets claiming the lawyers had stolen from her. The woman wore a sandwich-board sign around her neck, which read: "LAW FIRM of QUINN MAZZOCONE Stole Money From Me And Sold-Me-Out-to-the INSURANCE COMPANY." She also blew a whistle and rang a cowbell, while pushing around an American-flag-draped shopping cart.
The Philadelphia Court of Common Pleas, sitting in equity, determined that the woman did in fact believe what she was saying, but enjoined her from "further unlawful demonstration, picketing, carrying placards that contain defamatory and libelous statements and or uttering, publishing and declaring defamatory statements" against the lawyers. With some narrowing modifications to the injunction, the Superior Court affirmed.
The Pennsylvania Supreme Court reversed, holding that the injunctions issued by the trial court and the Superior Court violated the Pennsylvania Constitution as a prior restraint. The court also took issue with the Superior Court's suggestion that an action for damages would be a "pointless gesture" because the defendant was indigent. The Supreme Court said it could not accept the theory that exercising a constitutional right is conditioned on having money.
The issue has yet to resurface before the Pennsylvania Supreme Court. However, in 1991, the U.S. Court of Appeals for the Third Circuit, relying on Willing, predicted that the Pennsylvania justices would adopt the "traditional rule" if they were to address a case where an injunction was granted as an adjunct to money damages, after a jury determined certain speech to be defamatory, as in Kramer v. Thompson, 947 F.2d 666 (3d Cir. 1991). The traditional rule denies injunctive relief in these circumstances.
However, the Third Circuit also offered its own thoughts on the utility of the modern rule, finding the reasoning underlying the modern rule cases to be "quite persuasive." The court also said that a "potentially crucial distinction" between its case and Willing was a jury's finding that the speech at issue was defamatory. (In actuality, the trial court in Kramer directed a verdict on liability. But because a directed verdict was "functionally equivalent" to a jury finding, the Third Circuit analyzed the grant of an injunction attendant to a final damages award.)
Although the Third Circuit seemed to endorse the modern rule, the available evidence—Pennsylvania case law—led to the court's conclusion that the Pennsylvania Supreme Court would reject the injunction in Kramer if given the opportunity.
Over the last 40 years, state Supreme Courts throughout the country have started to endorse the modern rule. A common thread among these decisions is the idea that, because a jury has already found the offending speech to be defamatory, an injunction against repeating that speech is not a prior restraint and does not offend the First Amendment.
As the California Supreme Court stated in Balboa Island Village Inn v. Lemen, 156 P.3d 339 (Cal. 2007): "Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful. This distinction is hardly novel."
In fact, the U.S. Supreme Court has held more than once that an injunction against speech that has been adjudicated to be constitutionally unprotected will not be considered a prior restraint.
For example, in Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) the high court upheld a statute that allowed a civil injunction against showing films following an adjudication that those films were obscene.
In Pittsburgh Press v. Pittsburgh Commission on Human Relations, 413 U.S. 376 (1973), the Supreme Court held that a Pittsburgh ordinance prohibiting newspapers from printing sex-specific help-wanted ads—which constituted unprotected commercial speech—did not violate the newspaper's First Amendment rights.
The U.S. Supreme Court has not comprehensively addressed the permissibility of injunctions in the context of defamation. The closest the court came was in Tory v. Cochran. 544 U.S. 734. In that case, renowned attorney Johnnie L. Cochran sued a former client for defamation in California state court, alleging the client had defamed him by falsely, and publicly, claiming Cochran owed him money.
The trial court issued a permanent injunction against the client after he stated that he would continue the activity absent a court order. The California Court of Appeals affirmed. After the California Supreme Court denied review, the U.S. Supreme Court granted certiorari on the question of "whether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment."
However, a week after the case was argued, Cochran died. In light of this, Cochran's lawyer moved for the court to dismiss the case as moot. And, while the court rejected the argument that Cochran's death mooted the case, the majority largely evaded the broad free-speech issues it raised—whether injunctive relief in defamation cases comports with the First Amendment.
Meanwhile, in addition to the Balboa case from California, the following state supreme courts have adopted the modern rule: Ohio in, O'Brien v. University Community Tenants Union, 327 N.E.2d 753 (Ohio 1975); Georgia, in Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga. 1975); Minnesota, in Advanced Training Systems v. Caswell Equipment, 352 N.W.2d 1 (Minn. 1984); Nebraska, in Sid Dillon Chevrolet-Oldsmobile-Pontiac v. Sullivan, 559 N.W.2d 740 (Neb. 1997); and Kentucky, in Hill v. Petrotech Resources, 325 S.W.3d 302 (Ky. 2010).
Other recent state Supreme Court decisions, however, have resorted to the traditional rule. For example, the Texas Supreme Court recently held in Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014), that prohibiting a defendant from repeating defamatory remarks would constitute a prior restraint in violation of the Texas Constitution. (The court did, however, hold that a permanent injunction requiring the removal of already posted speech that has been adjudicated defamatory was not a prior restraint.)
The Kinney court noted that any effective injunction would necessarily be overbroad and, therefore, unconstitutional, because of its potential to chill protected speech. On the flip side, a sufficiently narrow injunction, enjoining only the exact statement that's been adjudicated defamatory, "would only invite the defamer to engage in wordplay, tampering with the statement just enough to deliver the offensive message while nonetheless adhering to the letter of the injunction." That aside, the court observed that what is one day false and, thus, defamatory, may the next day be true and, thus, protected.
Kinney also distinguished the obscenity and commercial speech cases because of the certainty with which trial courts can draw injunctive lines in addressing those types of cases. With obscene porn, for example, there is no "wordplay" issue; the enjoined party can either stop showing the adjudicated obscene content ... or show it, and violate the injunction.
Lines are tougher to draw in the defamation context, the argument goes, because context has such a crucial role in analyzing whether speech is defamatory, and because falsehoods don't always stay false.
In these authors' opinions, however, the benefits of the modern rule outweigh its conceded shortcomings. For one, the fact that the offending speech has been adjudicated as defamatory means that the speech is constitutionally unprotected. Further, the proper narrowness of an injunction is something that can be determined on a case-by-case basis in light of the totality of the circumstances in that case. Moreover, as the court in Balboa pointed out, if false speech becomes true, a party can move to dissolve the injunction.
The Kinney court responded to this last point by stating that nobody should have to request a court's permission to speak truthfully. But what is the flip side of that coin? Presume the defendant believed a particular communication, which was previously adjudicated to be false and defamatory, somehow became true. If there were no injunction (or the defendant were not required to move to dissolve it) and, indeed, the speech remained false and defamatory—despite the defendant's belief to the contrary—then the plaintiff would get revictimized. He or she would have to go through another trial on the merits before getting relief ... again. That is, of course, presuming the defendant can pay damages.
In light of all this, the modern rule makes sense in addressing whether injunctions are an appropriate remedy for defamation.
Reprinted with permission from the December 27, 2016 issue of The Legal Intelligencer. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.