(For the full PDF, with footnotes and an Appendix listing the cases I’m discussing, see here; all the posts in this series will be available here. I’m skipping the doctrinal discussion of why the injunctions are indeed unconstitutional—you can see plenty of that in the PDF—and turning to some thinking about what might be driving the courts’ decisions here.)
Finally, one aspect of an injunction’s flexibility is that it can take account the judge’s evaluation of the qualities of the particular speaker. One particularly vivid illustration came in a case where a judge ordered a woman “to cease posting any information about your parents on social media referencing indirectly or directly reference either one of them,” and added, “Court informs the respondent that all the craziness described in these petitions needs to stop totally.”
That sentiment, I think, implicitly lurks in some (though by not means all) of the cases I describe. The speakers there seem to come across as weird, perhaps even mentally unbalanced. They seem obsessed with their subjects’ supposed misdeeds, far beyond what most of us would see as proportionate. Some might label them “cyberstalkers,” reflecting the excessive attention we associate with stalkers.
Judges may easily get a sense that the speakers’ criticisms are unfounded—or even if well-founded, are repeated at unreasonable length or with unreasonable enmity. And they may get a sense that a narrow injunction (e.g., “you may not say recklessly or knowingly false and defamatory things about the plaintiff” or “you may not repeat [certain named charges] about the plaintiff) just won’t do any good: The obsessed, irrational speaker might claim that her allegations are actually true, or might subtly change the allegations and then claim that they are different. The only way to make “all the craziness” stop, the judge might be thinking, is just to categorically tell her to stop saying anything about the plaintiffs, leaving no room to wiggle out.
Such a prohibition can’t be implemented using a general statute. “No person shall engage in crazy, excessive, irrational speech about others” is too vague to be constitutional (even apart from its overbreadth)—it doesn’t adequately notify speakers about what they can’t say. But judges may think they know crazy when they see it, and should be allowed to enjoin it. In a sense, this may be connected to the rules related to “vexatious litigants”: When a plaintiff has filed many lawsuits that appear frivolous, and seems to be driven by “obsess[ion]” more than by rational evaluation of the merits of a case, courts will often limit the plaintiff’s ability to file future cases.
Yet while this is an understandable human reaction, the First Amendment cannot allow it, when it comes to speech rather than to litigation. We can’t be stripped of our constitutional rights to speak simply because a judge unilaterally concludes that we’re irrational or obsessed. Whatever the rule might be to filing lawsuits, an act that triggers expensive legal obligations on the part of defendants, such a prohibition can’t apply to ordinary speech, press, petitioning, or assembly.
Many political or religious zealots throughout the history of First Amendment law may have come across as obsessed or irrational or lacking a sense of proportion. Indeed, the willingness to fight a case up to the Supreme Court, often at considerably cost and peril to oneself, may itself be evidence of that, especially to those of us who sharply disagree with the speaker’s views. The defendant in Cantwell v. Connecticut, for instance, went to a mostly Catholic part of town to urge passersby to listen to a record that stridently attacked Catholicism. Besides being unusually rude, even by the standards of those who dislike Catholics, this had to have been a personally dangerous thing to do.
The near-funeral picketers from Westboro Baptist Church, of Snyder v. Phelps infamy, seem not just offensive and bigoted but unhinged. The 1965 Henry v. Collins case, a follow-up to New York Times Co. v. Sullivan, protected the rights of someone who tried to get wire services to publish his conspiracy theories about “a diabolical plot” against him. The 2005 Tory v. Cochran case protected the rights of a disgruntled litigant who came across as obsessed, an extortionist, or both. But understandably, the Supreme Court declined to give trial judges a roving commission to decide who is too irrational to speak.
Indeed, remedies law sometimes allows injunctions that go further than the initial violation, and even that forbid behavior that, absent the initial misdeed, would not be tortious. But First Amendment law does not allow such preventative measures when they ban otherwise protected speech (as opposed to narrow content-neutral time, place, and manner restrictions).
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