You Can’t Say That

Constitutionality of Injunctions as a Remedy in Defamation Cases

Currently, circuit courts are split: some have ruled that injunctions on future speech may be consistent with freedom of speech, while others have held that they always violate the First Amendment. The Supreme Court granted certiorari on this question in Tory v. Cochran but ruled on narrower grounds, without resolving the split. Absent consensus, the availability of injunctions on future speech, especially in the context of defamations, remains unclear for the attorneys who seek these injunctions and for the courts that must decide whether to grant them.

Thus, there is a need for a piece that analyzes the circuit split under the Supreme Court’s First Amendment jurisprudence to determine whether and under what circumstances such injunctions could be constitutionally permissible. While other scholars have written on the subject, most prominently Erwin Chemerinsky, and have concluded that injunctions on future speech are prior restraints on speech, no piece has recognized that these injunctions may nonetheless be constitutional under certain circumstances. This Note, after thorough constitutional analysis of injunctions on future speech, agrees that they are prior restraints, but concludes that they may sometimes fall under the traditional exceptions to the Supreme Court’s prior restraint doctrine. This Note further lays out the specific situations and safeguards under which injunctions on future speech pass constitutional muster in order to guide practitioners and courts in protecting victims of defamation while still protecting the defamer’s right to free speech.

The full text of this Note is available to download as a PDF.