Can a court enjoin defamation?

McCarthy v. Fuller, Nos. 14-3308, 15-1839 (7th Cir. Dec. 18, 2015).

This case presents unusual facts and a colorful cast of characters. It features an alleged Marian apparition, a defrocked nun, a man who may or may not be a Papal Knight of the Holy Sepulchre, and a postman-turned-blogger with a taste for invective. 

But we can bypass those facts, because this case’s legal question is perhaps even more interesting:  Can a court enjoin future defamatory statements? Here, a jury found that the defendants had defamed the plaintiffs, and it awarded damages. The district court then entered an injunction against further defamation. The defendants challenge this injunction on appeal. 

On the one hand, you might think that all injunctions against defamation are unconstitutional. Wouldn’t an injunction against defamation count as prior restraint, and isn’t prior restraint all but forbidden by the First Amendment? 

On the other hand, as Judge Posner points out here for the majority, it creates practical problems to rule out injunctions entirely. If defamers are judgment-proof—as the defendants appear to be here—then the threat of future lawsuits for damages won’t deter them at all. They’ll just go on defaming. Now, maybe that’s just the price we pay for the First Amendment—a position that Judge Sykes takes in a separate concurrence. But the majority isn’t willing to forbid injunctions altogether. It does hold, though, that the particular injunction the district court entered here was far too broad, and so it remands for the district court to consider whether to issue a new, and much narrower, injunction.