The United States Court of Appeal for the Seventh Circuit today struck down an overbroad permanent injunction against online speech issued by a lower court in a defamation case. The lower court had enjoined future speech that the jury had not specifically found to be defamatory, and the Seventh Circuit held that this violated the First Amendment.
The facts of the case, McCarthy v. Fuller, are quite messy and culminated in what the Seventh Circuit refers to as a “smear campaign” lodged by one party against the other. This resulted in a defamation lawsuit. At trial, the lower court submitted a list of allegedly defamatory statements to the jury. But it never actually asked the jury to either (a) determine whether the defendants had made each of the allegedly defamatory statements, or (b) indicate which of the statements it found to be defamatory. As a result, when the jury issued a verdict finding that the defendants had defamed plaintiffs, the verdict provided no indication of which statements formed the basis of its conclusion. The district court nevertheless permanently enjoined the defendants from publishing any of the statements submitted to the jury or “any similar statements that contain the same sort of allegations or inferences, in any manner or forum[.]”
We filed an amicus brief in the case back in June, urging the Seventh Circuit to strike down the injunction issued by the district court and follow the Texas Supreme Court in holding that permanent injunctions on defamatory speech almost always violate the First Amendment.
The Seventh Circuit didn’t go as far as we would have like. It declined to address whether defamation can ever be enjoined and suggested that injunctive relief might be available in defamation cases as a way to deal with repeat offenders.
But it did strike down the specific permanent injunction challenged in the case as an unconstitutional prior restraint on speech. The court found the injunction to be “so broad and vague” that it threatened to silence the defendants completely, and stated that it was a “patent violation of the First Amendment.” As the court held:
An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression.
The court also recognized—as we explained in our amicus brief—that “enjoining speech harms listeners as well as speech.”
Judge Posner, writing for the Seventh Circuit, ultimately remanded the case to the district court to see if it could figure out some way to fix the error in the jury form without retrying the whole case. Meanwhile, Judge Sykes—who filed a concurring opinion pretty much agreeing with all the points we raised in our brief—would have just struck the injunction outright.