Injunctions for Defamation, Juries, and the Clarifying Light of 1868
83 Pages Posted: 12 Mar 2008 Last revised: 23 May 2012
Date Written: Sept. 2008
This article raises two issues of contemporary constitutional law. The first is a question of free speech: the propriety of the judiciary's current retreat from the traditional rule that equity cannot enjoin defamatory speech, which until now has been one of the unwavering precepts of the American law of remedies. The second is a question of constitutional jurisprudence: when determining the rights that citizens have against state government, should jurists who consider themselves originalists seek the meaning of the Bill of Rights in 1789, when the Bill was first adopted, or in 1868, when the Fourteenth Amendment made it applicable to the states?
As a contribution to the judiciary's reassessment of the traditional no injunction for defamation rule, this Article revises our understanding of rule's history and discusses the implications of that revision for the current debate on the no injunction rule's continued propriety. The historiography of the rule traces back to Roscoe Pound's 1916 article Equitable Relief Against Defamation and Injuries to Personality. In Pound's view, the rule was not settled at the nation's founding. I will argue that it was. Also in Pound's view, the rule was founded on such anachronistic concerns as the limitation of equity's jurisdiction to the protection of property rights. I will argue that it was founded in on considerations that still should influence us: distrust of judges and respect for the role of juries in free speech controversies.
In light of this argument, the Article suggests that if it is proper to depart from the traditional no injunction rule, the Supreme Court should find that the First Amendment imposes two jury-centered limitations on the departure: 1) no injunction may issue without a jury determination that the speech was defamatory; and 2) no injunction be enforced without a jury determination that the injunction was violated by speech that continues to be defamatory. By insisting on the inclusion of a jury in both the liability and enforcement proceedings, the insight of the constitution makers of the importance of a popular check on government regulation of speech may be retained.
As a contribution to the practice of originalism, this Article establishes a historical point with which Pound had no concern: the evidence supporting the claim that the no injunction for defamation rule was an established aspect free speech is far more clear and abundant if we consider the Reconstruction era rather than the nation's Founding. This point illustrates the importance, when discussing the limitations imposed by the Fourteenth Amendment on the states, of shifting the focus from the meaning of the Bill of Rights in 1791 to its meaning in 1868.
In this way, the paper contributes to the substantive debate on the future of the no injunction for defamation rule while it illustrates the importance of focusing on the evolution of Bill of Rights norms between 1789 and 1868 when interpreting the restrictions the Fourteenth Amendment imposes on the states.
Keywords: first amendment, legal history, constitutional history, injunctions, defamation, speech, originalism, jury, juries, equity
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