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San Diego Law Review

Doug Rendleman

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466

Document Type

Article

Abstract

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine as well as New York Times v. Sullivan.

Defamation isn’t protected by the First Amendment. A prior restraint label, however, resembles a death sentence. This article maintains that such massive retaliation is overkill; it argues for a more nuanced approach that allows the judge to grant an anti-defamation injunction under limited circumstances.

Paired state supreme court decisions frame the debate. In Balboa Island Village Inn v. Lemen in 2007, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. The Texas Supreme Court’s 2014 decision in Kinney v. Barnes rejected an anti-defamation injunction.

This article maintains that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation.” It examines the New York Times v. Sullivan privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction that avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs and evaluates important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s.

The administration of the prior restraint doctrine has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrine’s reasoning and application.

A court may enjoin defendants’ expression that isn’t protected free speech; examples are obscenity and copyright infringement. Defamation is also a defendant’s expression that isn’t protected free speech. However, the procedure and substance of defamation must operate in light of the Sullivan Court’s defenses. The procedure leading to an anti-defamation injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful defamatory torts without threatening free-speech values. This article closes by asking courts to suspend or qualify the prior restraint doctrine for defamation and to abolish the no-injunction Maxim outright.

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