San Diego Law Review
In Near v. Minnesota, the Supreme Court added the injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.
A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” turns out to be formidable. This article examines the Sullivan v. New York Times privileges in defamation, their tension between truth and falsity, and their limitations on compensatory and punitive damages. It tests the injunction against damages by examining several Equitable doctrines: the inadequacy prerequisite-irreparable injury rule, the injunction as preventive relief, the temporary restraining order, the preliminary injunction, the injunction bond, the juryless injunction trial, the task of drafting an injunction to avoids vagueness and over-breadth, the use of motions to modify-dissolve an injunction, and the declaratory judgment, and contempt, compensatory, coercive, or criminal, including the collateral bar rule. It weighs important prior restraint scholarship, including Professor Emerson’s and Professor Blasi’s.
The administration of the prior restraint doctrines has expanded its operation beyond the policy reasons that gave it birth. This article concludes that the differences between damages and an injunction don’t warrant different treatment. In Balboa Island Village Inn v. Lemen, the California Supreme Court approved a targeted injunction that forbids a defendant from repeating proved defamation. Influential scholars beginning with Roscoe Pound and including more recently Professors Redish, Jeffries, Schauer, and Ardia have eroded the prior restraint doctrines’ reasoning and application.
The procedure leading to an injunction can be augmented by requiring prior notice, adversary adjudication, and narrow drafting. A properly adjudicated and drafted injunction that specifically forbids defendant’s defamation will prevent harmful torts without threatening free-speech values. The article closes by asking for abolition of the Maxim and suspension or qualification of the prior restraint doctrine for defamation.
Doug Rendleman, The Defamation Injunction Meets the Prior Restraint Doctrine, 56 San Diego L. Rev. 615 (2019).