I had blogged about it when I was still working on it, but it’s out here now. The introduction:
Some restraining orders restrict speech criticizing ex-boyfriends and other family members. Others have offered limited criticism of companies or professionals (lawyers, doctors, real estate agents, financial advisors) with whom speakers have had bad experiences. Still others have limited criticism of police officers, judges and other government officials.
Some have banned all statements about the plaintiff or all statements about the plaintiff online. Others were more narrowly defined — for example, they prohibited all “derogatory” language or all publication of the plaintiff’s photographs — but were still not limited to language deemed restrictable under First Amendment law (such as defamation or genuine threats or unsolicited language ). the plaintiff).
Many of these injunctions have focused on online language. However, the Court made it clear that online language, and particularly social media language, is fully protected by the First Amendment, as is language in newspapers, books or pamphlets.
Not surprisingly, most of these injunctions either involve a defendant who was not represented by counsel or a default judgment against a defendant who failed to appear, so First Amendment arguments against injunctions are unlikely to be effective to the judge were submitted. Part I sets out the evidence for the restraining orders that I found.
When these injunctions are appealed, they are almost always reversed for violating the First Amendment. Part II discusses the relevant precedents, both from the US Supreme Court and from state and federal appellate courts. I hope that this part (and the article more broadly) will be particularly useful for judges, lawyers and even lawyers dealing with such cases, as well as legal scholars. I discuss the precedents of the state and federal appellate courts in more detail than is typical for a law review article, so that it will be more useful for practical litigation.
But some courts have upheld such restraining orders based on two related theories. First, some courts have concluded that the First Amendment does not protect harassment and that otherwise protected speech becomes unprotected harassment when said (particularly when said often) with intent to offend, embarrass, or to bother. Second, some courts have concluded that the First Amendment does not protect such statements where a matter of merely “private concern” is involved. I think these theories are at odds with First Amendment precedent, and Part III will discuss that.
Finally, Part IV speculates as to why courts are doing this and how it affects broader debates about how the “cheap speech” created by the Internet has affected public debate; how some judges might play their role in resolving disputes pragmatically; and how judges deal with litigants whom they see as irrational and therefore uncontrollable, using normal instruments such as civil liability for damages.
Our legal system offers many, albeit imperfect, remedies to harm speech made about an individual. One of these is the defamation lawsuit, which can even allow for a narrowly tailored injunction prohibiting the defendant from repeating certain statements found at trial to be defamatory. Another reason is the defamation criminal law in some states. A third, in other states and under federal law, is the criminal harassment or cyberstalking statute, although this may pose its own problems with the First Amendment. And when Donna writes derogatory things to Paul, not only About him, he may be able to get an injunction to stop this.
But the injunctions I describe in this article are not legal remedies: they restrict constitutionally protected opinions and constitutionally protected true fact claims. Sometimes they interfere with speeches about government officials and other important figures. Sometimes they interfere in speeches on matters of public interest, such as B. the commercial treatment of consumers or suspected criminal conduct. And even when the disputes are seemingly private, they encroach on the also constitutionally protected discourse on what I call “matters of everyday life.”
Of course, persistent criticism, which can often be unfair and offensive, can understandably upset its target audience. But as the Supreme Court and lower courts have made clear, such speech cannot even be suppressed by claims for damages, much less injunctions.