STICKS AND STONES AND PERMANENT MUZZLES: THE FIRST AMENDMENT AND THE CONSTITUTIONALITY OF PERMANENT INJUNCTIONS ON FUTURE SPEECH AFTER DEFAMATION TRIALS
By: Connor Shaull, Volume 103 Staff Member
A second chance is vital, especially regarding what we say. Indeed, an apology has followed some of the most notorious words humans have ever spoken. Consequently, some federal courts—via the First Amendment—forbid permanent injunctions on future speech after defamatory trials. However, other federal courts apply a “one strike and you’re out” approach for the defamatory speaker, and allow such permanent injunctions under certain situations. First Amendment jurisprudence is complex and the Supreme Court has identified categories that the First Amendment does not protect. Indeed, the judicial branch is generally limited to determining if the legislature restricted protected speech, and if it did, if the legislature used a “narrowly tailored” law that furthers a “compelling interest.”
Turning First Amendment case law on its head, recent federal courts have grappled with whether a court’s own action—via a permanent injunction against future speech—violates the First Amendment. Currently, federal circuits are split regarding an answer and hence, the question remains: Does a court’s permanent injunction on future speech following a defamation trial violate the First Amendment through an unjustified restriction on protected speech? This Post aims to contextualize this debate by analyzing two contrasting federal circuit decisions from the Sixth and First Circuits. Ultimately, this Post argues that the Supreme Court should adopt the “modern rule”, which is similar to how courts currently determine whether legislative actions violate the First Amendment.
CARPENTER AND SINDI: THE CIRCUIT SPLIT REGARDING THE “MODERN RULE” ON PERMANENT INJUNCTIONS
In 1990, the Sixth Circuit upheld an injunction on future speech in a defamation trial—Lothschuetz v. Carpenter. In that case, the district court rejected the plaintiffs’ demands for a permanent injunction because it found the request was an “unwarranted prior restraint on freedom of speech.” The Sixth Circuit, however, reversed and granted an injunction because of the defendant’s frequent and continuing defamatory statements, which made the injunction “necessary to prevent future injury to [the plaintiff’s] personal reputation and business relations.” The Sixth Circuit noted, however, that it would limit the “injunction to statements which have been found in this and prior proceedings to be false and libelous.” This approach has become known as the “modern rule” and is a similar approach as reviewing legislative actions because it implicitly requires the court to “narrowly tailor” the injunction to the plaintiff’s interest of avoiding future injury.
Some courts, however, have contested the “modern rule.” Most recently, in 2018, the First Circuit invalidated a permanent injunction on future speech following a defamation trial in Sindi v. El-Moslimany. Although the jury awarded the plaintiff $3.5 million in damages, she “moved for a permanent injunction, seeking to enjoin [the defendants] from . . . publishing a multitude of described statements.” The district court granted this motion and the defendants appealed. On appeal, the plaintiff argued that the permanent injunction only restricted unprotected speech because it was narrowly tailored to ban defamatory speech. The First Circuit, however, casted its doubts on such permanent injunction’s effectiveness and narrowness because “defamation is an inherently contextual tort.” In all, the First Circuit held that a permanent injunction on defamatory statements punished future conduct that might be constitutionally protected, and subsequently failed the First Amendment requirement that it be narrowly tailored to the plaintiff’s legitimate interests.
A NEED FOR CLARIFICATION, UNIFORMITY, AND CERTAINTY
In sum, the question whether the First Amendment protects future speech from a permanent injunction in a defamation case is “far from settled.” As often in First Amendment cases, courts must balance two interests: (1) protecting the defendant’s future speech that arguably benefits both the speaker and potential listeners; and (2) limiting the plaintiff’s probable harm that will result from the defendant’s future speech. However, a need for certainty and uniformity requires the Supreme Court to rule on this issue once and for all.
Some scholars and courts have called for an absolute ban on injunctions in defamation cases “based on many rationales, including ‘the historical condemnation of injunctions in [defamation] actions, the inherent adequacy of money damages, and the inevitable futility of crafting an injunction that is both effective and narrowly tailored.’” In contrast, “some scholars have argued that the prohibition on prior restraints is incoherent and unjustified, and, therefore, injunctions against defamation should be subject to no special disfavor.” The “modern rule” finds a quasi-middle ground by allowing injunctions that “restrict only speech that has been specifically adjudicated to be unlawful.” Because this approach is versatile enough to protect plaintiffs from future harm while maintaining a robust free marketplace of ideas, the Supreme Court should adopt the “modern rule.”
Indeed, the modern rule represents the most-balanced approach and avoids the extreme approaches’ shortfalls. For example, a complete ban on injunctions limits the avenues of redress that a plaintiff has and stymies their ability to protect themselves from likely future injury. Although critics of injunctions argue that money damages are sufficient for past injuries, they do not address how the courts can protect the plaintiff from the defendant’s speech that is likely to occur in the future. Further, while there is an “inherent difficulty of crafting an [appropriate] injunction”, one could make the same argument regarding courts’ determinations on legislative actions. As noted, the First Amendment constantly requires the courts to decide flexible standards of “compelling state interests” and “narrowly tailored restrictions.” Such flexibility, however, is a benefit because protected speech—especially given defamation’s contextual characteristics—changes over time. In other words, what is defamatory or obscene one day could be protected the next. Because such protections change over time, courts need a flexible standard when analyzing legislative actions that allows them to protect substantial interests in a narrow fashion; the same is true regarding the courts’ analyses of injunctions.
On the other side, a rule that does not subject injunctions to any scrutiny would likely result in overbroad, “chilling” injunctions that severely restrict unprotected speech. The “modern rule,” in contrast, limits this possible overreach by requiring the injunction to only target speech that the court has adjudicated as defamatory. Although such injunctions are inherently narrow, that does not equate to ineffectiveness. For example, the “modern rule” still allows for injunctions that restrict speech about the past. In other words, a court can create an injunction that protects the plaintiff by not allowing the defendant to repeat statements about the past, which the court has determined are defamatory. Further, this effective method ensures that injunctions do not restrict speech that might one day become true. 
In all, the “modern rule” approach ensures future speech is not unnecessarily restricted or “chilled” while also limiting the future harm that plaintiffs deserve to avoid. With such an approach, complex First Amendment jurisprudence can become a little clearer, which will enable litigants on both sides to have more reasonable notice regarding the potential redressability and consequences. Because statements could be defamatory one day and accurate the next, the “modern rule’s” versatile approach will ensure that permanent injunctions, like legislative restrictions, protect the individual’s reputations in an effective, yet narrow manner.
 See Peter Baker & John F. Harris, Clinton Admits to Lewinsky Relationship, Challenges Starr to End Personal ‘Prying’, Wash. Post., Aug.18, 1998, at A01 (quoting President Clinton regarding the Monica Lewinsky scandal) (“I misled people, including even my wife. I deeply regret that.”); see also Allison Hope Weiner, Mel Gibson Seeks Forgiveness from Jews, N.Y. Times (Aug. 2, 2006), https://www.nytimes.com/2006/08/02/arts/02gibs.html (describing Gibson’s apologies after he made anti-Semitic remarks); Kanye West (@kanyewest), Twitter (Sept. 4, 2010, 10:38 AM) (stating “I’m sorry Taylor”, which was referencing West’s upstaging of Taylor Swift at the 2009 MTV Video Music Awards).
 See, e.g., Sindi v. El-Moslimany, 896 F.3d 1 (1st Cir. 2018) (holding that a permanent injunction on future speech following a defamation trial violates the First Amendment); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172 (2d Cir. 2001) (same); Cmty. for Creative Non-Violence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987) (same); Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967) (same).
 See, e.g., Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990) (adopting the “modern rule” that upholds permanent injunctions on future defamatory speech that the court has already adjudicated as defamatory); San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters, 125 F.3d 1230 (9th Cir. 1997) (same); Brown v. Petrolite Corp., 965 F.2d 38 (5th Cir. 1992) (same); Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1 (Minn. 1984) (same); McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015) (avoiding the issue, but observing that “[m]ost courts would agree” with Lothschuetz).
 See generally, Debs, 249 U.S. 211 (incitement), Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words); Watts v. U.S., 394 U.S. 705 (1969) (true threats); New York Times Co., v. Sullivan, 376 U.S. 254 (1964) (defamation); U.S. v. Miller, 307 U.S. 174 (1939) (obscenity); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 245–46 (2002) (obscenity); New York v. Ferber, 458 U.S. 747 (1982) (child pornography).
 Such debates often involve the following scenario: the legislature passes a law restricting a certain type of speech; law enforcement prosecutes an individual for violating the restrictive law; and the judiciary branch decides if the law violates the First Amendment right to free speech. See, e.g., The Child Porn Prevention Act of 1996 (“CPPA”), 18 U.S.C. § 2256(8)(A) (1996) (prohibiting “any visual depiction . . . where the production . . . involves the use of a minor engaging in sexually explicit conduct . . .”), declared unconstitutional by Ashcroft, 535 U.S. at 256 (declaring the CPPA unconstitutional via the First Amendment because the statute “abridges the freedom to engage in a substantial amount of lawful speech” with no substantial government interest).
 Cf. Brown v. Entertainment Merchants, 564 U.S. 786, 786, 799 (2011) (striking down a 2005 California law—that banned the sale of certain violent video games to children without parental supervision—because the law was “a restriction on the content of protected speech” and was not “narrowly-tailored” to promote a “compelling government interest”).
 Historically, federal courts adhered to “the usual rule . . . ‘that equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages.’” Pierce, 814 F.2d at 672 (quoting Kukatush Mining Corp. v. SEC, 198 F.Supp. 508, 510–11 (D.D.C.1961)); see also Am. Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir. 1913) (“[E]ven though [defamatory] publications are calculated to injure the credit, business, or character of the person aggrieved . . . he will be left to pursue his remedy at law.”). For more background information, see Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 166 (2007), which discusses the history of this presumption.
 See supra notes 2–3.
 898 F.2d 1200 (6th Cir. 1990).
 Id. at 1206.
 Id. at 1209 (Wellford, J. and Hull, J., dissenting). The dissent became the opinion of court regarding the injunction issue. Id. at 1206.
 Id. at 1209 (Wellford, J. and Hull, J., dissenting).
 See generally Steve Tensmeyer, Constitutionalizing Equity: Consequences of Broadly Interpreting the “Modern Rule” of Injunctions Against Defamation, 72 N.Y.U. Ann. Surv. Am. L. 43, 51–52 (2017) (outlining the increased use of the “modern rule” in both federal and state courts throughout the last forty years).
 896 F.3d 1, 11 (1st Cir. 2018).
 Id. at 12.
 Id. The district court banned the defendants from “repeating—orally, in writing, through direct electronic communications, or by directing others to websites or blogs reprinting” six statements that the district court concluded were defamatory.” Id.
 Id. at 32.
 Id. at 33 (citing Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13–14 (1970)).
 The Court offered a wide-range of hypotheticals in which a court could hold that the speakers violated the permanent injunction, but did not actually make any defamatory statements. Id. at 34.
 Id. at 34–35.
 McCarthy v. Fuller, 810 F.3d 456, 465 (7th Cir. 2015) (J., Sykes, concurring).
 See generally Martin H. Redish, The First Amendment in the Marketplace: Commercial Speech and the Values of Free Expression, 39 Geo. Wash. L. Rev. 429 (1971) (describing Free Speech as a tool for self-realization); David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U. Pa. L. Rev. 45 (1974) (claiming Free Speech encourages individual dignity); Thomas Scanlon, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204 (1972) (arguing that free speech encourages self-direction).
 See, e.g., Citizens United v. FEC, 558 U.S. 310, 341 (2010) (“The First Amendment protects speech and speaker, and the ideas that flow from each.”). See generally John Stuart Mill, On Liberty (Elizabeth Rapaport ed., 1978) (1859) (arguing that all speech—including falsities—help further the marketplace of ideas because speech strengthens the truth).
 See Virginia v. Black, 538 U.S. 343, 347 (2003) (declaring a state statute that implemented a categorical ban on “cross burning” as unconstitutional because speech is only an unprotected “true threat” if there is “intent of placing the victim in fear of bodily harm or death”); see also Stanley v. Georgia, 394 U.S. 557 (1969) (ruling that punishments for distributing and exchanging obscene materials are constitutional, but punishments for privately possessing such materials are not).
 The Supreme Court granted certiorari in 2005 to decide this issue, “at least when the plaintiff is a public figure.” Tory v. Cochran, 544 U.S. 734, 737 (2005). Unfortunately, the Court never reached the merits because the plaintiff died after oral arguments and thus, the case “lost its underlying rationale.” Id. at 737–38.
 Tensmeyer, supra note 13, at 50 (quoting Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157, 167 (2007)).
 Id. at 50 (citing John Calvin Jeffries, Jr., Rethinking Prior Restraint, 92 Yale L.J. 409, 434 (1983)).
 Id. at 51 (citations omitted).
 See supra note 6.
 For example, the statement “John steals money” could one day be false and the next be true.
 Tensmeyer, supra note 13, at 61.
 For example, the “modern rule” would permit an injunction that bars an individual from stating: “Lebron James never won an NBA Championship with the Cleveland Cavaliers.” This injunction does not restrict potentially true statements, but is nonetheless effective in protecting Mr. James’s reputation.
 See Sindi v. El-Moslimany, 896 F.3d 1, 33 (1st Cir. 2018) (citing Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13–14 (1970)).