I. SPEAK FIRST, AND THEN PAY THE PRICE A colleague handling a divorce case recently asked if he could get an injunction to prohibit an opposing spouse from bad-mouthing the girlfriend of his client. Answer: No, that would be a prior restraint. The next question, "What’s a prior restraint?" led to a briefing about the Pentagon Papers Case.1 In 1971, the U.S. Supreme Court refused to enjoin the New York Times and the Washington Post from publishing parts of a government report about U.S.-Viet Nam relations even though the war in Viet Nam was still at a boil and the information in the report was top-secret, dangerous, and stolen — all at once. "[R]evelation of these documents will do substantial damage to public interests," said one justice even as he voted with the majority against the prior restraint on publication.2
Robert S. McNamara, Secretary of Defense in the Kennedy and Johnson administrations, had commissioned a study of the relationship between the United States and Viet Nam since World War II.3 One of the contributors to that study (Daniel Ellsberg) leaked a copy to a New York Times reporter who had made a name for himself for his coverage from the field in Viet Nam (Neil Sheehan). Excerpts started to appear in the Times on June 13, 1971 and in the Post five days later.
The federal trial courts in New York City and Washington D.C. denied applications of the federal government for injunctions. The D.C. Circuit Court of Appeals affirmed. The Second Circuit reversed and enjoined publication. The U.S. Supreme Court took the case on writ of certiorari and decided it on June 30, 1971 — 17 days after publication began.
The D.C. Court was affirmed and the New York Court reversed. The vote was 6 to 3.4 More opinions were written (10) than there were justices on the Court (9). The main objection of the dissenters seemed to be not as to the merits but as to the haste with which the case had moved through five federal courts. The decision was grounded on the First Amendment and on landmark precedent, Near v. Minnesota ex rel. Olson.
In the Near
case, a state court in Minnesota halted publication of a local newspaper on the grounds that its attacks upon the mayor of Minneapolis and other officials constituted a public nuisance under a statute banning publication of material that was "malicious, scandalous, and defamatory." The U.S. Supreme Court reversed on the grounds that the statute and the injunction based on it constituted a prior restraint in violation of the First Amendment, which is made applicable to the States by the Fourteenth Amendment.6
II. THE RULE AGAINST PRIOR RESTRAINT ON PUBLICATION APPLIES TO DEFAMATION
A. An Injunction Is a Prior Restraint
"[P]rior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights."7 The rule against prior restraint on publication (also known as the no-injunction rule) governed the situation my colleague faced: Equity will not enjoin a libel.8 This piece examines the rule against prior restraints, particularly as it applies to defamation; the rationales for that rule, its limits, its exceptions, and its future.
"Injunctions are treated as prior restraints because that is exactly what they are: a prohibition of future expression."9 The First Amendment is a significant basis in law for the rule that defamation will not be enjoined: The Supreme Court has never yet upheld a prior restraint in a defamation action.10 But the rule is grounded on other considerations, too.
Some defamations are punishable in the criminal justice system. Until July 1, 1986, Illinois recognized the offense of "criminal defamation," and as recently as November 30, 1984 the Illinois Supreme Court sustained that statute against a challenge that it violated the First and Fourteenth Amendments to the Constitution of the United States.11 The right to trial by jury is also relevant to the no-injunction-for-libel rule. "[U]nlike in other civil actions, the jury’s function in defamation actions was understood to be more than fact determination. . . Traditionally, the jury’s function was to act as a tribune of the people; to be a popular institution with veto power over government sanctions for speech."12
This, too, bears upon the no-injunction rule: the risk that the judge will become a censor, the notion that equity will not intervene when the remedy at law is adequate, and the difficulty (if not impossibility) of drafting an order that is enforceable.13 "Both the history and the language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints."14
A textbook censorship scenario was presented by Near v. Minnesota: Local officials invoked a "public nuisance" statute to haul a newspaper publisher before a single judge on charges that he was in the business of printing scandalous and defamatory stories about those same officials, and unless the publisher proved that the material was true, and published with "good motives" and for "justifiable ends," the newspaper would be perpetually suppressed under pain of contempt of court. "This is the essence of censorship," said Chief Justice Hughes.15 The case can be made that the injunction in Near was a greater evil than the statute on which it rested because violation of an unconstitutional statute cannot be punished but violation of an unconstitutional injunction is punishable by contempt.16
B. Actually, You Can Cry "Fire" in a Crowded Theatre, But You Take What Comes.
Are the rights of free speech and free press absolute? Absolutely not, and none have made that point more memorably than Oliver Wendell Holmes Jr. in Schenck v. United States
: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre."17 The free speech clause of the Illinois Constitution makes much the same point, though less vividly:
All persons may speak, write and publish freely, being responsible for the abuse of that liberty. In trials for libel, both civil and criminal, the truth when published with good motives and for justifiable ends, shall be a sufficient defense.18
It is to be noted, however, that the example submitted by Justice Holmes anticipated after-the-fact consequences, as opposed to a "gag order." The same is true of the free speech clause of the Illinois Constitution, that is, it contemplates an after-the-fact reckoning for "the abuse of that liberty," as opposed to an injunction prohibiting the speech in the first place. "‘[F]reedom of the press’ means freedom from the restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of punishment in the courts of your country for the violation of the laws of libel, slander, and treason."19
C. The Outer Limits of the No-Prior-Restraint Doctrine: Disclosing the Location of the Army and the Death of Johnnie CochranMy colleague more recently questioned whether the rule would yield in the face of the most vile and unceasing of per se defamations. Put another way, are there any limits on the no-prior-restraint doctrine with respect to libel or otherwise? It is hard to say. A more definite answer would almost certainly be available today had Johnnie Cochran lived a bit longer, of which more below.
The classic hypothetical used to get to the outer reaches of the doctrine is whether an injunction would lie to prohibit publication of the movements of military forces and troop ships. Publication of that sort would be enjoined by the Chief Justice Hughes who wrote the opinion in Near v. Minnesota,20 as also by Justice Brennan, according to his concurring opinion in the Pentagon Papers Case.21
But then there is the provocative position of Justice White in the Pentagon Papers Case. It seems that the hypothetical about publication of troop movements had a real-life source, the Congressional debates over what became the Espionage Act of 1917. It was important to Justice White that the anti-spy bill had been amended to remove language giving the President power, in war time, to prosecute those who published information such as troop ship movements.
His opinion seems to be in sympathy with the position of Senator Henry F. Ashurst (Dem – Az) during that debate: "Senator Ashurst, for example, was quite sure that the editor of such a newspaper ‘should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing."22 All in all, the concurring opinion of Justice White invites an inference that he would withhold an injunction even as to the publishing of troop movements.
More recently, the death of Johnnie Cochran sapped the potential of Tory v. Cochran 23 to tell us where the law is on the no-injunction-for-libel rule.
Disgruntled former clients of Mr. Cochran picketed outside his law office. One sign called Mr. Cochran a crook, a liar and a thief. Another said: "Unless You have O.J.’s Millions – You’ll be Screwed if you USE(sic) J.L. Cochran Esq." A suit for defamation ensued against one such former client. Ulysses Tory had not only picketed, but also falsely claimed that Mr. Cochran owed him money and filed a complaint with the local bar association; he had written threatening letters that demanded $10 million and followed Mr. Cochran while "chanting" threats and insults.24
Mr. Cochran admitted he had lost no business as a result of the picketing, and he waived his right to damages. Tory asserted throughout that his First Amendment right to free speech was being violated. The trial court permanently prohibited Tory and his confederates from saying anything about Johnnie Cochran or his law office without first obtaining the permission of the judge. The California Court of Appeal affirmed. The California Supreme Court rejected Tory’s petition for review. The U.S. Supreme Court granted certiorari and the question presented was "[w]hether a permanent injunction as a remedy in a defamation action, preventing future speech about an admitted public figure, violates the First Amendment."25
Mr. Cochran died in March of 2005, only days after oral argument before the Supreme Court. Although the case was not moot, because the injunction was still in effect, the passing of Mr. Cochran reduced or eliminated the grounds for the injunction. "Consequently, the injunction, as written, now amounts to an overly broad prior restraint upon speech, lacking plausible justification."26 En route to that determination, Justice Breyer touched on another of the rationales for the no-injunction rule that were identified in part II(A) of this article, the difficulty (if not impossibility) of drafting an injunction order broad enough to protect the reputation of the plaintiff yet narrow enough to avoid impinging on the free speech rights of the defendant.27
III. THE LAW IS LESS SOLICITOUS OF "COMMERCIAL SPEECH"
There are exceptions to the rule against prior restraint of speech. So-called trade libel or commercial disparagement is enjoinable under, for example, our Uniform Deceptive Trade Practices Act.28 Copyright violations are enjoinable today29 and have been enjoinable for hundreds of years.30 The National Labor Relations Board and the Federal Trade Commission are authorized to issue cease-and-desist orders.31 There is an express constitutional protection of copyright.32 Beyond that, the U.S. Supreme Court has been less protective of "commercial speech" than of non-commercial speech.33 More could be said about this if there were world enough and time.34
CONCLUSIONThe temptation to deduce from Tory v. Cochran that the no-injunction rule is still an "iron law" had best be resisted. That caveat has been delivered by sources nearly as authoritative as the Supreme Court itself and cited nearly as often in this article, one a professor who represented Tory before the Court, the other a professor who co-wrote an amicus brief in support of the position of Tory. Each of them subsequently wrote about the no-injunction rule, and each more or less wrote in favor of maintaining the status quo, that is, against prior restraint. Yet each recognized what might be called a crack in the "iron law." Over the last 30 years injunctions restraining defamation have been upheld by the highest courts in California and several other states, as also by a number of federal appeals courts.35 Both of them suggest not only that the trend will continue but also that Tory v. Cochran came close to being a part of that trend, and the death of the respondent mattered. To the colleague who asked if the bad-mouthing of his client’s girlfriend was enjoinable, the answer now would be: You’d have a solid case for it if only Johnnie Cochran had lived.
1 New York Times Co. v United States of America, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971).
2 New York Times Co. v United States of America, 403 U.S. 713, 731, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971)(White, J. joined by Stewart, J., concurring).
3 Commonly known as the Pentagon Papers. More formally known as “History of U.S. Decision-Making Process on Viet Nam Policy” and sometimes as “United States-Vietnam Relations, 1945-1967: A Study Prepared by the Department of Defense.”
4 The majority was comprised of Justices Black, Douglas, Brennan, Stewart, White, and Marshall. The dissenters were Chief Justice Burger and Justices Harlan and Blackmun.
5 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” (Emphasis supplied).
6 283 U.S. 697, 707, citing Gitlow v. New York, 268 U.S. 652, Whitney v. California, 274 U.S. 357, Fiske v. Kansas, 274 U.S. 380, and Stromberg v. California, 283 U.S. 359.
7 Nebraska Press Assn v. Stuart, 427 U.S. 539, 559 (1976).
8 Venturelli v. Trovero, 346 Ill.App. 429, 423, 105 N.E.2d 306 (2d Dist. 1952), citing Lietzman v. Radio Broadcasting Station WCFL, 282 Ill.App. 203; Montgomery Ward & Co. v. United etc., 330 Ill.App. 49, 70 N.E.2d 75; Montgomery Ward & Co. v. United Retail Wholesale & Department Store Employees, 400 Ill. 38, 79 N.E.2d 46. See also, Siegel, Injunctions for Defamation, Juries, and the Clarifying Lens of 1868, 656 BUFFALO L. REV. 655 (2008) (“Siegel”) and authorities compiled at p. 675 n. 11; Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV. 157 (2006-2007) (“Chemerinsky”); Pound, Equitable Relief Against Defamation and Injuries to Personality, 29 HARVARD L. REV. 640 (1916).
9 Chemerinsky, note 8 above, at 165.
10 Chemerinsky, note 8 above, at 167.
11 The offense of “criminal defamation” was last codified at 720 ILCS 5/27-1 to 5/27-2. It survived a constitutional challenge in People v. Heinrich, 104 Ill.2d 137, 470 N.E.2d 966 (1984). It was subsequently repealed, effective July 1, 1986, by Public Act 84-1047 sec. 1.
12 Siegel, note 8 above, at 729.
13 Chemerinsky, note 8 above, at 167-172
14 New York Times Co. v United States of America, 403 U.S. 713, 717, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971) (Black, J., joined by Douglas, J., concurring).
15 Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
16 Chemerinsky, note 8 above, at 165 and at 165 n. 58.
17 Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919)
18 ILL. CONST. art. I, sec. 4. (Emphasis supplied). The terms “good motives” and “for justifiable ends” mirror language in the statute that was overturned in Near v. Minnesota. Those terms (“good motives” and “for justifiable ends”) appear in section 1880 of the Fifth Edition of Justice Story’s Commentaries on the Constitution of the United States, which was first published in 1833 (“Story”), and that part of Story is cited and quoted at length in Near v. Minnesota, 283 U.S. 697, 732-33, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).
19 New York Times Co. v United States of America, 403 U.S. 713, 734 n. 4, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971) (White, J., joined by Stewart, J., concurring)(quoting from 55 Cong.Rec. 2005: Senator Ashurst speaking during debate over what became the Espionage Act of 1917).
20 Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (“No one would question but that a government might prevent . . . publication of the sailing dates of transports or the number and location of troops”).
21 New York Times Co. v United States of America, 403 U.S. 713, 726, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971) (Brennan, J., concurring) (using the quote from Near v. Minnesota that appears in note 20 above).
22 New York Times Co. v United States of America, 403 U.S. 713, 733-734 and 734 nn. 3-4, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971) (White, J., joined by Stewart, J., concurring).
23 544 U.S. 734 (2005).
24 See Tory v. Cochran, 544 U.S. 734, 735-36 and Chemerinsky, note 8 above, at 153-168. (Professor Chemerinsky argued the case for Tory and his confederate (Ruth Craft) before the Supreme Court and was a co-author of the briefs.)
25 See note 24 above. 26 See Tory v. Cochran, 544 U.S. 734, 738. “We vacate the judgment of the California Court of Appeal, and we remand the case for proceedings not inconsistent with this opinion.” Id.
27 In Tory v. Cochran, 544 U.S. 734, at 738 Justice Breyer cited Carroll v. President and Comm’rs of Princess Anne, 393 U.S. 175, 183-184 (1988) for the point that, in the area of First Amendment rights, an order must be “precise” and “narrowly tailored” to meet the “pin-pointed objective” of the case. The subject of drafting an order that will be effective and limited at the same time was more fully developed later on by Mr. Tory’s chief counsel. See Chemerinsky, note 8 above, at 171-172. The upshot of Professor Chemerinsky’s analysis is that an order enjoining defamation will, inevitably, be too broad and leave judges in the position of censors.
28 815 ILCS 510/1 et seq, Section 2 describes the acts that constitute deceptive trade practices. They include disparaging “the goods, services or business of another by false or misleading representation of fact.” 815 ILCS 510/2(8). The right to injunctive relief against a deceptive trade practice is provided by section 3 (815 ILCS 510/3).
29 See 17 U.S.C. sec. 502 (injunction available under the Copyright Act).
30 U.S. CONST, art. I, sec. 8, cl. 8; Siegel, note 8 above, at 678 and 678 nn. 107-108.
31 For the authority of the National Labor Relations Board and the Federal Trade Commission, see, respectively, 29 U.S.C. sec. 160(c) and 15 U.S.C. sec. 45(b). A terse summary of areas which accept prior restraint of speech will be found in New York Times Co. v United States of America, 403 U.S. 713, at 731 n. 1, 91 S.Ct. 2140, 29 L.Ed.2 822 (1971) (White, J., joined by Stewart, J., concurring).
32 See note 30 above.
33 Emord, Contrived Distinctions: The Doctrine of Commercial Speech in First Amendment Jurisprudence. Cato Policy Analysis No. 161. (Cato Institute September 23, 1991).
34 Marvell, To His Coy Mistress.
35 Siegel, note 8 above, at 657. Chemerinsky, note 8 above, at 157-158.
David McCarthy has practiced in Naperville since 1991. He concentrates on litigation, construction law, and business law.