Anti-Libel Injunctions and the Criminal Libel Connection

77 Pages Posted: 29 May 2019 Last revised: 30 May 2019

See all articles by Eugene Volokh

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law

Date Written: April 15, 2019

Abstract

An injunction against libel, which carries the threat of prosecution for criminal contempt, is like a miniature criminal libel law -- just for a particular defendant, and just for statements about a particular plaintiff. That is its virtue. That is its danger. And that is the key to identifying how both the First Amendment and equitable principles should constrain such injunctions.

Properly crafted anti-libel injunctions, I argue, are constitutional. But most existing injunctions are not properly crafted, and thus threaten criminal contempt punishment for libel without offering the protections that even criminal libel provides -- not just trial by jury, but also proof beyond a reasonable doubt and the availability of a criminal defense lawyer. Courts should therefore change the way they word and implement these injunctions; and courts should also be attentive to how the injunctions interact with state executive and legislative decisions, even apart from First Amendment concerns.

Keywords: First Amendment, Freedom of Speech, Libel, Defamation, Injunctions, Remedies

Suggested Citation

Volokh, Eugene, Anti-Libel Injunctions and the Criminal Libel Connection (April 15, 2019). University of Pennsylvania Law Review, Forthcoming; UCLA School of Law, Public Law Research Paper No. 19-15. Available at SSRN: https://ssrn.com/abstract=3372064

Eugene Volokh (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
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