Online Defamation, Injunctive Relief, and the Future of Prior Restraint

It's sitting there in pretty much every online speech-related defamation complaint you'll find: right along side a request for a visit from our friend Stacks O'Cash, the plaintiff asks for an injunction, forcing the defendant to take down the (allegedly defamatory) post.

Usually, nothing comes of that request -- only a tiny sliver of defamation cases ever make it to a jury (the bulk getting tossed out or settled), and even when a plaintiff wins, the result is usually just money. Since we almost never see one of these injunctions make it off the pages of the complaint, higher courts haven't had to deal with their implications -- but the idea of a court-ordered takedown of somebody's speech should send your prior-restraint klaxons blaring. After all, as Walter would say: The Supreme Court has roundly rejected prior restraint.

A new(-ish) problem

Back in the heady mid-century days of SCOTUS prior-restraint cases, the focus was (understandably enough) on forward-looking bans on publication; after all, it's hard to imagine a plaintiff strolling into court and saying, "Your honor, the New York Times has defamed me, so please make them track down every copy of their June 17, 1967 edition. They should then, via scissors, remove the vile libel from their pages."

Like I said, that's silly. But online publishing changes things: suddenly, it's more practical to expect a defendant to take down a blog post, in a way that seems intuitively different from what we could ask of print publishers. But I'm not so convinced that the issues are really all that different -- print and online publishing have more in common than you might initially think.

The basic scenario

Like I said, we very rarely see occasion for a court to permanently enjoin an online defendant. Most online authors will take down a disputed post at the first sign of trouble. Sometimes, though, a defendant stands their ground and leaves up the post. (Or, the post is on a website that refuses to let the defendant take down the post.) In that sort of scenario, a takedown order from a court is often the biggest relief the plaintiff's after.

This is where search engines make such a big difference, compared to the defamation cases of yesteryear. If some newspaper wrote a bunch of mean stuff about you in 1958, people who read the paper would see it. Maybe it would stick with them ("Hey, are you the guy who…") and maybe it wouldn't. Some word-of-mouth might kick in. ("Hey, did you hear about Sharkey? What an ass…") Maybe, 20 years later, someone might find the back-issue in some library's archives. The point is, paper-published stories had a life-span.

Now, though, if the top Google hit for your name is (according to you) a pile of damn lies, it's going to stay there. It's understandable, then, that a plaintiff would want a post taken down. That doesn't mean we should help them, though.

The argument for distinction

Injunctions in print-based libel cases are largely unheard of, both because of the impracticality problem (see above) and the specter of prior restraint. The argument that online cases are different would go something like this:

The injunctions we're always afraid of, and that underlie the classic prior restraint cases like Near v. Minnesota, are by their nature forward-looking (because the can't-depublish-a-newspaper idea eliminates retroactive relief), leading to injunctions that say things like "you can't publish anything about X ever again." Those restraints prior to publication wreck free speech, gut the marketplace of ideas, etc.

Enjoining online posts, then, is different: it's not "restraining" you from publishing something "prior" to the publication, but is instead taking something down after the fact. And, we're talking about speech that's been found false and defamatory, meaning it's not constitutionally protected. Put that all together, and we're out of the realm of Near-style restraints--plaintiffs seeking injunctions can skip over that inconvenient First Amendment stuff.

Not so fast

I'm skeptical. There are at least two important senses in which the distinction between online and traditional publishing falls apart -- one narrowly practical, one broader.

As a practical matter, it's not exactly true that online posts are so much easier than print content to yank out of the market. This point has been well made in a slightly different context: the single publication rule.

Courts have already confronted how to deal with online posts for statute-of-limitation purposes. Some savvy plaintiffs tried to argue that each day an online post stays live, a new infraction happens -- thus, the statute-of-limitations clock keeps re-setting. The argument was: since online publishers could more easily remove content than could their print brethren, they were committing a new act each day they left the content online.

Defendants countered with the single-publication rule, a doctrine from the days of print media. Under single-publication, all copies of a piece of mass media constitute a single act: you don't get to bring a separate lawsuit each time a publisher sells an allegedly-defamatory book. Courts in the new Internet cases have pretty much unanimously sided with the defendants, holding that the initial act of posting something online is the relevant infraction/tort/whatever, regardless of how long it stays up or when people view it (with a few possible exceptions, like content that gets substantially edited after the fact).

That bit of doctrine, in and of itself, doesn't matter much for timely defamation suits. What matters is the logic, nicely summarized by the 9th Circuit decision in Oja v. U.S. Army Corps of Engineers (440 F.3d 1122, for those scoring at home). There's a bit of questionably-persuasive logic about how webpage access works (basically, that a user opening a webpage is the same as a reader opening a book from a shelf), but the reasoning gets stronger from there.

The Oja court points out that it's not exactly true that websites can be easily wiped out; the Court mentions users who may print or save a website before it disappears. The rise of online archiving and ubiquitous search-engine caching make this point all the more salient: an online publisher can't necessarily just make a post disappear at will. Furthermore, courts have long applied the single-publication rule, even when publishers had the chance to remove unsold inventory (like recalling stock from bookstores). Courts treat the cat as out of the bag after the initial publication, whether online or in print.

The broader case

So as a practical matter, it's not so easy to really get a post taken down, even with an injunction. But even if it were as easy as just enjoining a blogger and making all of the plaintiff's problems disappear, we still shouldn't be going there.

Why do we worry about prior restraints? At the core of it, we care about keeping an open, vibrant discourse. We worry about giving government a veto on what ideas can live in the marketplace. If we sanction injunctive takedowns of online articles, we'll be doing real damage to all of that good stuff.

It's tempting to think that we could just pick out the really bad defamation, and just take those posts down. After all, the First Amendment has its limits, so what would we be hurting?

The trick, though, is that there's no way to pick out just the bad stuff. You could have default judgments against absent defendants, with the plaintiff trying to then enforce the injunction against a third-party publisher. (Section 230 blocks that strategy anyway, but doesn't change the fact that the injunction shouldn't have been issued in the first place.) Even if we limit injunctive relief strictly to jury verdicts, we have to remember juries' error rate. With the preponderance-of-the-evidence standard, variations in juries, judges, attorney skill, and basic human fallibility, we end up with some -- for lack of a better term -- bad verdicts. Money damages are one thing, but to have courts writing takedown orders for speech that, in the end, might actually be true is something else entirely.

And if that's still too practical for you, there's a larger point about the health of the marketplace of ideas. There's inherent value in a speech environment free from court/government interference, and looming injunctions for (possibly bad) defamation verdicts would put a real damper on things.

Doesn't that suck for plaintiffs?

It does indeed. Money damages are nice, but with the search-engine damage a nasty post or two can do, removal of the post is really what plaintiffs are after. (And make no mistake, some online posts can be plenty nasty.) But the costs to a few aggrieved plaintiffs, in the slim number of cases that don't settle and/or see defendants willingly take down posts, pale in comparison to the problems injunctions bring.

Sooner or later, one of these injunctions will get granted. We came close a few years ago, with Johnnie Cochran's lawsuit against a guy who was picketing Cochran's office; the trial court eventually granted Cochran's request for a permanent injunction to shut the guy up, but Cochran died before SCOTUS decided the appeal. That leaves the underlying question -- do injunctions on determined-false statements violate the First Amendment? -- undecided, and with all of the online defamation cases today, we won't have to wait very long for an on-point case.

Epilogue: There's a case out in California that's beginning to nibble at the defamation-injunction problem. An appeals court has already thrown out one injunction as an impermissible prior restraint, but that injunction was so over-broad (banning the defendant from ever blogging anything about the plaintiff, ever) that it limits the decision's significance. If the narrower, can't-blog-the-statements-from-this-defamation-suit injunction ever gets challenged, we'll have a real show on our hands.

(Image Courtesy Flickr user Walt Jabsco, under a Creative Commons license.)

John Sharkey is a CMLP blogger fresh off his first year at Harvard Law School. Since his last post, the Twins have finally sunk. 

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Adrian -- 

Thanks for bringing those cases to my attention; I'll read them straight away. And more generally, I've found your blog very helpful/insightful, in the anti-SLAPP context and otherwise.