Microsoft Word - 8. FOR PUBLICATION_Volokh (147-256) corrected

VERBROAD

NJUNCTIONS

GAINST

PEECH

SPECIALLY IN

IBEL AND

ARASSMENT

ASES

)

UGENE

OLOKH

INTRODUCTION.................................................................................... 149

I. What Some Trial Courts Are Doing ................................. 152

A. “Stop talking about plaintiff” injunctions ................ 152

B. Injunctions that are narrower but still too broad .... 162

Gary T. Schwartz Professor of Law, UCLA School of Law (vo[email protected]).

Many thanks to Adam Holland and Wendy Seltzer (Lumen Database); Amy Atchison

and Jodi Kruger (UCLA Law Library); Paul Alan Levy (Public Citizen); Tom Kamenick;

and Haley Aufill.

Disclosure: I have participated as a lawyer in several cases cited below, on behalf of

amici. Chan v. Ellis, 770 S.E.2d 851 (Ga. 2015); Bey v. Rasawehr, 161 N.E.3d 529 (Ohio

2020); McCauley v. Phillips, No. C083588, 2018 WL 3031765 (Cal. Ct. App. June 19,

2018); Quinn v. Gjoni, 50 N.E.3d 448 (Mass. Ct. App. 2016); State v. Burkert, 174 A.3d

987 (N.J. 2017); TM v. MZ, 926 N.W.2d 900 (Mich. Ct. App. 2018); Ferguson v. Waid,

798 F. App’x 986, 987 (9th Cir. 2020); Brummer v. Wey, 166 A.D.3d 475 (N.Y. App. Div.

2018); United States v. Alvarez, 567 U.S. 709 (2012); Snyder v. Phelps, 562 U.S. 443

(2011); Stark v. Stark, No. W201900650COAR3CV, 2020 WL 507644, *2 (Tenn. Ct. App.

Jan. 31, 2020); State v. Turner, 864 N.W.2d 204, 209 (Minn. Ct. App. 2015); Keyes v. Biro,

No. B271768, 2018 WL 272849 (Cal. Ct. App. Jan. 2, 2018); People v. Relerford, 104

N.E.3d 341, 352 (Ill. 2017); Littleton v. Grover, 2019 WL 1150759, No. 51217-3-II, *11

(Wash. Ct. App. Mar. 12, 2019); Siegle v. Martin, No. BUR-L-2674-18 (N.J. Super. Ct.

Burlington Cty. Jan. 23, 2019); Catlett v. Teel, 477 P.3d 50 (Wash. Ct. App. 2020); United

States v. Waggy, 936 F.3d 1014 (9th Cir. 2019); Mashaud v. Boone, No. 16–FM–383 (D.C.

review en banc granted Dec. 30, 2021). I have also represented the defendants in three

of the cases cited below. Moriwaki v. Rynearson, No. 17–2–01463–1, 2018 WL 733811

(Wash. Super. Ct. Kitsap Cty. Jan. 10, 2018), reconsideration denied, 2018 WL 73381 (Feb.

5, 2018); Obsidian Finance LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014); State v. Drahota,

788 N.W.2d 796, 798, 804 (Neb. 2010). And I filed a motion to unseal court documents

in another case cited below, United States v. Gabueva, No. 3:20–mj–70917–MAG (N.D.

Cal. July 8, 2020).

148 Harvard Journal of Law & Public Policy Vol. 45

II. Why Such Broad Injunctions Are Unconstitutional ....... 170

A. Supreme Court precedent generally ......................... 170

B. Protection for photographs and other information

about people ................................................................. 173

C. State and federal appellate precedents ..................... 176

III. The Doctrinal Defenses of the Broad Injunctions ........... 181

A. Content neutrality ........................................................ 181

B. “Speech integral to criminal conduct” ...................... 184

C. “Harassment is not protected speech” ...................... 189

D. Restrictions based on past speech or conduct .......... 193

E. Private concern ............................................................. 196

F. Bad intentions ............................................................... 208

G. Too much? .................................................................... 211

IV. Why Those Courts Are Doing It ....................................... 213

A. Speech by private individuals as less respectable than

speech by media outlets .............................................. 213

B. Speech by private individuals, without the money

and power of media outlets ........................................ 216

C. Judges as flexible problem–solvers ........................... 217

D. Getting “all the craziness . . . to stop totally” ........... 221

CONCLUSION ....................................................................................... 225

APPENDIX ............................................................................................ 226

2022 Overbroad Injunctions 149

NTRODUCTION

Donna is publicly criticizing Paul. So Paul sues her, and gets an

injunction such as this: “[Defendant] is permanently enjoined from

publishing . . . any statements whatsoever with regard to the plain-

tiff.”

It’s hard to reconcile such an injunction (whether entered in a li-

bel case or as a “personal protective order”) with First Amendment

precedents. The injunction isn’t limited to speech within a First

Amendment exception, such as libel or true threats.

It is far from

“narrowly tailored,” which is often set forth as a requirement for

the rare content–based anti–speech injunctions that are indeed per-

mitted.

Yet I have found over 200 such injunctions (almost all in

the last ten years)—some as broad as that one, and others narrower

but still overbroad—entered either in libel cases or in cases involv-

ing petitions to stop harassment or cyberstalking.

And these 200

are likely just the tip of the iceberg, since such injunctions rarely

1. Saadian v. Avenger213, No. BC 502285 (Cal. Super. Ct. L.A. Cty. July 28, 2014); see

also Appendix (collecting many more such cases).

2. For more on injunctions that are indeed limited to libel (or to some related consti-

tutionally valid tort causes of action), see Eugene Volokh, Anti–Libel Injunctions, 168 U.

. 73 (2019).

3. See Same Condition, LLC v. Codal, Inc., No. 1–20–1187, 2021 WL 2525659, at ¶ 36

(Ill. App. Ct. June 21, 2021); Coleman v. Razete, 137 N.E.3d 639, 647 (Ohio Ct. App.

2019); Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 347 (Cal. 2007); Auburn Police

Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993).

4. “Harassment” here refers to criminal harassment or harassment that might be tar-

geted by harassment prevention orders, not hostile environment workplace harass-

ment, see Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39

UCLA

. 1791 (1992), or quid pro quo workplace harassment.

None of the injunctions I discuss in this Article are stipulated injunctions, or other-

wise agreed to as a matter of contract. They therefore can’t be justified as involving

voluntary waivers of First Amendment rights, as in Perricone v. Perricone, 972 A.2d 666,

681–83 (Conn. 2009).

150 Harvard Journal of Law & Public Policy Vol. 45

lead to appeals, and thus are rarely made visible in searchable In-

ternet databases.

Some injunctions have restricted speech criticizing exes and other

family members.

Others have restricted criticisms of businesses or

professionals (lawyers, doctors, real estate agents, financial advis-

ers) with whom speakers say they had a bad experience. Still others

have restricted criticism of police officers, judges, and other gov-

ernment officials.

Some have banned all speech about the plaintiff, or all online

speech about the plaintiff. Others have been narrower—for in-

stance, banning all “derogatory” speech or all posting of photo-

graphs of the plaintiff—but were still not limited to speech that

First Amendment law recognizes to be restrictable (such as libel or

true threats or unwanted speech said to the plaintiff).

Many of these injunctions have focused on online speech. But the

Court has made clear that online speech, and in particular speech

on social media, is fully protected by the First Amendment, as

much as is speech in newspapers or books or leaflets.

Unsurprisingly, most such injunctions involve either a defendant

who was not represented by a lawyer, or a default judgment against

a defendant who did not appear, so the First Amendment argu-

ments against the injunctions were likely not effectively presented

to the judge. Part I lays out the evidence on the injunctions that I’ve

found.

When these injunctions do go up on appeal, they almost always

get reversed, because they violate the First Amendment.

Part II dis-

cusses the precedents on this, both from the U.S. Supreme Court

and from state and federal appellate courts. I hope this Part (and

5. See Appendix. From what I’ve seen, such orders don’t exhibit any particular gen-

der pattern; men sometimes get them against ex-wives and ex-girlfriends, women

sometimes get them against ex-husbands and ex-boyfriends, and some stem from

same-sex relationships.

6. See, e.g., infra notes 215–217.

7. See, e.g., Reno v. ACLU, 521 U.S. 844, 877–79 (1997); Packingham v. North Carolina,

137 S. Ct. 1730, 1735–36 (2017).

8. See infra Part C.

2022 Overbroad Injunctions 151

the Article more broadly) will be especially useful to judges, law-

yers, and even pro se litigants dealing with such cases, as well as to

legal academics. I discuss state and federal appellate precedents

there in more detail than is common for a law review article, so that

it will be more useful for practical litigation.

But some courts have upheld such injunctions, based on two re-

lated theories. First, some courts have concluded that the First

Amendment doesn’t protect harassment, and that otherwise pro-

tected speech becomes unprotected harassment when it is said (es-

pecially when it is said often) with an intent to offend, embarrass,

or harass.

Second, some courts have concluded that the First

Amendment doesn’t protect such speech when it is on a matter of

merely “private concern.”

I think these theories are inconsistent

with First Amendment precedents, and Part III will discuss that.

Finally, Part IV will speculate why courts are doing this, and how

it bears on broader debates about how the “cheap speech” created

by the Internet has affected public discussion; how some judges

might perceive their role in pragmatically resolving disputes; and

how judges deal with litigants whom they see as irrational, and

therefore as uncontrollable using normal tools such as civil dam-

ages liability.

Our legal system offers many remedies, however imperfect, for

damaging speech about a person. One is the libel lawsuit, which

may allow even a narrowly tailored injunction forbidding the de-

fendant from repeating specific statements that have been found to

libelous at trial.

Another, in some states, is criminal libel law.

third, in other states and under federal law, is criminal harassment

law or cyberstalking law, though that may raise its own First

9. See infra Part F.

10. See infra Part E.

11. See Volokh, Anti–Libel Injunctions, supra note 2.

12. See Eugene Volokh, What Cheap Speech Has Done: (Greater) Equality and Its Discon-

tents, 54 U.C.

AVIS

2303, 2313–17 (2021); Eugene Volokh, Criminal Libel: Survival

and Revival (in progress).

152 Harvard Journal of Law & Public Policy Vol. 45

Amendment problems.

And if Donna is writing derogatory things

to Paul, rather than just about him, he may able to get a restraining

order to make that stop.

But the injunctions I describe in this Article are not a permissible

remedy: they restrict constitutionally protected opinions and con-

stitutionally protected true statements of fact. Sometimes, they in-

terfere with speech about government officials and other important

figures.

Sometimes, they interfere with speech on matters of pub-

lic concern, such as business treatment of consumers or alleged

criminal conduct.

And even when they deal with what appear to

be private disputes, they interfere with speech on what I call “daily

life matters,” which is likewise constitutionally protected.

Of course, persistent criticism, which may often be unfair and in-

sulting, may understandably distress its targets. But, as the Su-

preme Court and lower courts have made clear, such speech cannot

be suppressed even by damages awards, and certainly not by in-

junctions.

I. W

HAT

OME

RIAL

OURTS

OING

Let me begin by laying out the injunctions that some trial courts

have been issuing. I start with the broadest and continue to ones

that are narrower but still not narrow enough.

A. “Stop talking about plaintiff” injunctions

Some injunctions in libel cases categorically ban defendant from

speaking about plaintiff (or at least from doing so online or on some

13. See Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment

Laws, and “Cyberstalking”, 107 N

. 731 (2013).

14. See, e.g., Chan v. Ellis, 770 S.E.2d 851, 853–84 (Ga. 2015); cases cited infra note 157.

15. See infra Part A.

16. See infra Part I.

17. See Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Impli-

cations of a Right to Stop People from Speaking About You, 52 S

TAN

. 1049, 1092–94

(2000).

2022 Overbroad Injunctions 153

particular site), for instance, “Defendant Leo Joseph is hereby per-

manently restrained from publishing future communications to

any third-parties concerning or regarding the Plaintiffs in either

their professional, personal or political lives.”

I collect many such

cases in the Appendix; they include injunctions entered restricting

speech about the Prime Minister of Haiti (the one I just quoted), a

controversial billionaire Chinese businessman,

local profession-

als,

businesspeople,

and more.

Similar injunctions are sometimes entered in claims brought un-

der statutes that authorize injunctions against “harassment” or

“stalking” (sometimes called “harassment prevention orders” or

“personal protection orders”).

Those statutes are usually used to

require the defendant to stay away from the plaintiff, or to stop

talking to the plaintiff rather than about the plaintiff.

And the stat-

utes generally call on courts to focus on whether the defendant has

annoyed, harassed, or substantially distressed the plaintiff, not on

whether the defendant has published defamatory statements.

But

18. Baker v. Haiti–Observateur Group, No. 1:12-cv-23300-UU, at 3 (S.D. Fla. Feb. 6,

2013), vacated sub nom. Baker v. Joseph, 938 F. Supp. 2d 1265 (S.D. Fla. Apr. 9, 2013).

19. Jia v. Gu, No. 17-2-27517-4 KNT, at ¶ C (Wash. Super. Ct. King Cty. Nov. 9, 2017).

The plaintiff founded startup electric car manufacturer Faraday Future, and later

turned out to have been on his way to filing for bankruptcy to deal with $3.6 billion in

debt. Sean O’Kane, Faraday Future Founder Files for Chapter 11 Bankruptcy, T

ERGE

(Oct. 14, 2019, 1:44 PM), https://www.theverge.com/2019/10/14/20913519/faraday-fu-

ture-jia-yueting-china-chapter-11-bankruptcy-leeco [https://perma.cc/REZ8-TLAR].

20. Saadian v. Avenger213, No. BC 502285 (Cal. Super. Ct. L.A. Cty. July 28, 2014)

(lawyer); Streeter v. Visor, No. CV2014093311, 2014 WL 8106739, at *1–2 (Ariz. Super.

Ct. Maricopa Cty. Aug. 1, 2014) (doctor and his assistant), rev’d, No. 1 CA–CV 14–0595,

2015 WL 7736866 (Ariz. Ct. App. Dec. 1, 2015).

21. Wendle Motors, Inc. v. Honkala, No. CV–06–0334–FVS, 2006 WL 3842146, at *1

(E.D. Wash. Dec. 29, 2006).

22. See, e.g., C

ROC

ODE

§ 527.6 (West 2022); F

TAT

. § 784.048

(West 2021);

ICH

OMP

AWS

. § 600.2950a (West 2018).

23.

See, e.g., id.

24. Id.

154 Harvard Journal of Law & Public Policy Vol. 45

the laws are increasingly used to order a defendant to stop speak-

ing about the plaintiff, based on speech that is likely annoying, dis-

tressing, or harassing precisely because it “damages [the plaintiff’s]

reputation.”

Here are a few examples; because such orders may be less famil-

iar than libel cases, I offer a few more details on each:

• The state senator: Florida state senator Lauren Book got

an injunction “prohibit[ing]” a persistent critic, Derek

Logue, “from posting anything related to [Senator Book],

even statements that would unquestionably constitute

pure political speech.”

Logue is an advocate for the

rights of released sex offenders (and himself a released

25. See, e.g., Order & Findings of Fact & Conclusions of Law, Moriwaki v. Rynearson,

No. 12–17, at Conclusions of Law ¶ 5 (Wash. Mun. Ct. Bainbridge Island July 17, 2017)

[https://perma.cc/VJ9K-AYDW] (justifying a “stalking protection order” against a critic

of a local community activist in part on the grounds that the activist “has experienced

extreme stress, anxiety, and fear that [the critic] will damage his reputation,” and in

part on the grounds that the critic would “continue to stalk” the activist, which in con-

text referred to continued criticism, not physical following), rev’d, No. 17–2–01463–1,

2018 WL 733811 (Wash. Super. Ct. Kitsap Cty. Jan. 10, 2018), reconsideration denied, 2018

WL 733810 (Wash. Super. Ct. Kitsap Cty. Feb. 5, 2018); E.D.H. v. T.J., 559 S.W.3d 60, 63,

65 (Mo. Ct. App. 2018) (discussing and reversing anti–harassment order that barred a

woman “from ‘post[ing], plac[ing] or includ[ing] any derogatory, demeaning, dispar-

aging, degrading, and/or belitt[l]ing, comments, remarks, pictures or similar ‘postings’

about [her ex-boyfriend] . . . that would reveal [the ex–boyfriend’s] identity’ through

[the woman’s] social media pages or the pages of others,” and noting that the ex–boy-

friend’s testimony at the harassment order hearing focused on the statements allegedly

“defam[ing] his character”); Dahdah v. Zabaneh, No. 14-15-00889-CV, 2017 WL 61836,

at *1 (Tex. App. Jan. 5, 2017) (discussing trial court order banning “harassing” defend-

ants and “besmirching their reputations”).

26. Logue v. Book, 297 So. 3d 605, 620 (Fla. Ct. App. 2020) (en banc) (interpreting

effect of trial court order, which had banned all “direct or indirect contact” by Logue

with Book, including through “use of social media”); id. at 612 (interpreting the phrase

“indirect contact” as covering online posts “that are not sent directly to an individual”

but nonetheless, for instance, “sufficiently describ[e] the person in such a way as to

make their specific identification possible” and are therefore “designed so as to be rea-

sonably likely to come to the attention of the targeted person, even if indirectly”).

2022 Overbroad Injunctions 155

sex offender); Book is a prominent backer of sex of-

fender registration laws.

The injunction was based on

Logue’s having protested against a march that Book had

organized, having asked an aggressive question at a

screening of a documentary in which both Book and

Logue were featured, and having set up a web site that

sharply criticized Book (and posted a picture of her

home, together with its address and purchase price,

drawn from public records).

• The judge: Michigan state trial judge Cheryl Matthews

got an injunction apparently barring Richard Heit from

making any online statements about her.

Heit, whose

fiancée had earlier lost a case before Judge Matthews,

had harshly criticized the judge online, saying things

like, “They are all liars,” “We will take [Judge] Mat-

thews [Petitioner] out. She has had it in for you from the

start. She is only one step over a traffic cop. She will be

in jail,” “We will get this to appeals and take them all

down,” “A farce! A mockery! A FUCKING JOKE! Dis-

honest Judge,” and “DO NOT VOTE FOR JUDGE

CHERYL MATTHEWS.”

27. Id. at 607; see also Legislative Advocacy, L

AUREN

’

IDS

, https://laurenskids.org/ad-

vocacy/legislation/ [https://perma.cc/TDU4-TAR8].

28. Id. at 608–09; see also F

LORIDIANS FOR

REEDOM

ON AND

AUREN

OOK

EX-

POSED!, http://ronandlaurenbook.blogspot.com/ [https://perma.cc/E4BA-NZGZ];

Francisco Alvarado, State Sen. Lauren Book Seeks Restraining Order to Silence Protestor,

ULLDOG

(Aug. 15, 2017), https://www.floridabulldog.org/2017/08/state-sen-lau-

ren-book-seeks-restraining-order-to-silence-protester/ [https://perma.cc/E74E-CT22].

29. The order barred defendant from “posting a message through the use of any me-

dium of communication, including the Internet or a computer or any electronic me-

dium, pursuant to MCL 750.411s,” which on its face forbids all posts by defendant

about anyone or anything; but in context, it likely refers to posts about plaintiff. Mat-

thews v. Heit, No. 14–817732–PH (Mich. Cir. Ct. Oakland Cty. Mar. 11, 2014); Petition

for Personal Protection Order, id. (Mar. 10, 2014).

30. Attachment to Petition for Personal Protection Order, id. at ¶¶ 5-6 (Mar. 10, 2014).

156 Harvard Journal of Law & Public Policy Vol. 45

• The forensics expert and former state board member: Stacy

David Bernstein was a prominent forensic psychology

expert, a sometime instructor for the FBI, and a guber-

natorially appointed member of the Connecticut Board

of Firearms Permit Examiners.

Bernstein got an order

forbidding Robert Serafinowicz from posting “any in-

formation, whether adverse or otherwise, pertaining to

[Bernstein] on any website for any purpose.”

Serafi-

nowicz had earlier criticized Bernstein online, and

pointed to a past abuse prevention order entered against

Bernstein, a past judgment apparently entered against

Bernstein for unpaid debts, and a possible arrest of

Bernstein 30 years before.

Serafinowicz had also sent

letters to various government agencies that had dealings

with Bernstein.

• The planning board member: Planning board member Col-

leen Stansfield got an order forbidding Ronald Van

Liew from, among other things, mentioning Stansfield’s

“name in any ‘email, blog, [T]witter or any docu-

ment.’”

Van Liew had earlier run for town council

member against Stansfield, and had called Stansfield “a

liar and corrupt”; he had also had some personal run–

31. Serafinowicz v. Bernstein, No. CV154034547S, 2015 WL 3875108, at *2, *4 (Conn.

Super. Ct. May 28, 2015), aff’d sub nom. Stacy B. v. Robert S., 140 A.3d 1004, 1007 (Conn.

App. Ct. 2016).

32. Serafinowicz, 2015 WL 3875108, at *6.

33.

Id. at *2–4.

34. Id.

35. Eugene Volokh, Critic May Not Mention Planning Board Member’s “Name in Any

‘Email, Blog, [T]witter or Any Document’”, W

ASH

OST

(Apr. 1, 2016), https://www.was-

hingtonpost.com/news/volokh-conspiracy/wp/2016/04/01/critic-may-not-mention-

planning-board-members-name-in-any-email-blog-twitter-or-any-document

[https://perma.cc/PK6W-5L3M]. This temporary restraining order was reversed by an-

other judge at the hearing for the permanent order ten days later, and the Massachu-

setts Supreme Judicial Court eventually held that Stansfield’s restraining order petition

might have constituted malicious prosecution on her part. Van Liew v. Stansfield, 2014

Mass. App. Div. 69 (Mar. 28, 2014), aff’d, 47 N.E.3d 411 (Mass. 2016).

2022 Overbroad Injunctions 157

ins with her, though the injunction wasn’t limited to

personal communications.

• The commission member (and her brother the mayor): Norma

Kleem, a town commission member and the sister of

mayor Cyrus Kleem got an order barring Johanna

Hamrick—who runs a local blog and had been candi-

date for town mayor and city council president—from

“posting any information/comments/threats/or any

other data on any internet site, regarding the petitioner

and any member of her immediate or extended fam-

ily,”

which would have barred comments about the

mayor as well.

• The police officer: Police officer Philip Lanoue got a court

order barring Patrick Neptune from, among other

things, “posting anything on the Internet regarding the

officer.”

Neptune had earlier criticized Lanoue on the

site copblock.org

based on what Neptune thought was

36. Both of the run-ins stemmed from Stansfield approaching Van Liew. First, Stans-

field “challenged various positions taken by Van Liew” at a “public ‘meet and greet’

event at the town library in connection with [Van Liew’s town selectman] candidacy . .

. . At the close of the event, Stansfield approached Van Liew and asked whether he was

going to take part in upcoming debates. According to Stansfield, Van Liew responded

loudly, ‘[O]f course . . . and I know what you do . . . . [Y]ou sent an anonymous letter

to my wife and I’m coming after you.’” Van Liew, 47 N.E.3d at 413–14 (Mass. 2016).

Second, “during their first interaction in a two–hour telephone call initiated by Stans-

field (that took place at some point prior to 2009) Van Liew screamed at her and called

her ‘terrible names.’” Id. at 414.

37. Order of Protection at 3, Kleem v. Hamrick, No. cv–11–761954 (Ohio Ct. Com. Pl.

Cuyahoga Cty. Aug. 15, 2011), available at http://www.volokh.com/wp-content/up-

loads/2012/07/KleemvHamrickOrder.pdf [https://perma.cc/7GLK-JASW]. A week

later, the court changed its mind. See Journal Entry, Kleem, No. cv–11–761954, available

at http://www.volokh.com/wp-content/uploads/2012/07/KleemvHamrickOrder.pdf

[https://perma.cc/7GLK-JASW].

38. Neptune v. Lanoue, 178 So. 3d 520, 521 (Fla. Dist. Ct. App. 2015).

39. Kelly W. Patterson, Florida Cop Tells His Mommy on Seat Belt Scofflaw Who Criticized

Him on CopBlock, C

LOCK

(Jan. 15, 2016), http://www.copblock.org/150994/florida-

cop-tells-mommy-seat-belt-scofflaw/ [https://perma.cc/KY8B-BQBW].

158 Harvard Journal of Law & Public Policy Vol. 45

an improper traffic stop; sent public officials several let-

ters criticizing Lanoue; and sent three letters to Lanoue’s

home address.

• The anti–vaccination activist: Kimberly McCauley got a

court order providing that fellow anti–vaccination activ-

ist Matthew Phillips “[n]ot post photographs, videos, or

information about [McCauley] to any internet site.”

Phillips had argued that McCauley had sold out to pro–

vaccination forces, and included photographs of

McCauley’s daughter (which McCauley had earlier

posted herself), apparently to suggest that McCauley

was endangering her own daughter by vaccinating

her;

but the injunction covered any information about

McCauley, not just material on her daughter.

• The fake immigration lawyer: Nelly Gabueva got a re-

straining order requiring lawyer Andrei Romanenko to

“take down all harassment material on website related

to Nelly A. Gabueva.”

The “harassment material,” ac-

cording to the petition for the restraining order, con-

sisted of Romanenko’s allegations that Gabueva was

practicing immigration law without a license.

Several

months later, the California Bar seized Gabueva’s prac-

tice on the grounds that she “led clients to believe that

40. See Neptune, 178 So. 3d at 521; see also Gaddis v. Lannom, No. 5–20–0327, 2021 Ill.

App. Unpub. LEXIS 1222, at *2, *4 n.1 (2021) (mentioning an order banning a citizen

from “posting anything on social media concerning” a police officer, and noting that it

was unconstitutional).

41. McCauley v. Phillips, No. 2016–70000487 (Cal. Super. Ct. Sacramento Cty. Sept.

8, 2016), appeal dismissed on procedural grounds, No. C083588, 2018 WL 3031765 (Cal. Ct.

App. June 19, 2018); Request for Civil Harassment Restraining Orders, id. (June 16,

2016).

42. Request for Civil Harassment Restraining Orders, id. (June 16, 2016).

43. Civil Harassment Restraining Order, Gabueva v. Romanenko, No. CCH–19–

581819, at 2 ¶ 6.a.4 (Cal. Super. Ct. S.F. Cty. July 26, 2019).

44. Request for Civil Harassment Restraining Orders, id. (July 2, 2019).

2022 Overbroad Injunctions 159

she was an attorney and qualified to practice immigra-

tion law,” even though she had “never been admitted to

the State Bar of California”;

and a federal criminal

complaint was filed against her on similar grounds,

though that case was later dismissed.

• The copyright owner: Poet Linda Ellis got a court order

requiring Matthew Chan to remove “all posts relating to

Ms. Ellis” from a site that he ran.

There were about

2000 posts on the site mentioning Ellis; the posts gener-

ally criticized her practice of demanding thousands of

dollars from people who had posted copies of one of El-

lis’s poems.

• The ex–girlfriend and successful video game developer:

Prominent video game developer Zoë Quinn got a court

order forbidding her ex–boyfriend Eron Gjoni from

“post[ing] any further information about [Quinn] or her

personal life on line or . . . encourag[ing] ‘hate mobs.’”

Gjoni had created a Web page describing his romantic

relationship with Quinn, and claiming that she had

emotionally mistreated him.

This led to a torrent of

45. State Bar Seizes the Practice of a San Francisco Nonattorney Who Victimized Russian

and Mongolian Immigrants, S

TATE

AR OF

. (May 4, 2020), http://www.cal-

bar.ca.gov/About-Us/News/News-Releases/state-bar-seizes-the-practice-of-a-san-fran-

cisco-nonattorney-who-victimized-russian-and-mongolian-immigrants

[https://perma.cc/36VW-5XD5].

46. Nate Gartrell, Bay Area Woman Accused of Posing as Attorney to ‘Victimize’ Immi-

grants Charged with a Federal Crime, S

OSE

ERCURY

EWS

(July 21, 2020, 1:48 PM),

https://www.mercurynews.com/2020/07/21/bay-area-woman-accused-of-posing-as-at-

torney-to-victimize-immigrants-charged-with-a-federal-crime/

[https://perma.cc/BM73-EMLA]; Criminal Complaint, United States v. Gabueva, No.

3:20–mj–70917 MAG (N.D. Cal. July 8, 2020).

47. Chan v. Ellis, 770 S.E.2d 851, 853 (Ga. 2015) (reversing that order).

48. Id. at 852.

49. Van Valkerburg v. Gjoni, No. 1407RO1169, at 1 ¶ 14 (Mass. Boston Mun. Ct. Sept.

16, 2014).

50. See id. at 4.

160 Harvard Journal of Law & Public Policy Vol. 45

online criticism of Quinn by others, including some

threats of violence (though never by Gjoni himself),

partly because Gjoni’s post was interpreted as suggest-

ing that some of the favorable reviews of Quinn’s games

were written by reviewers who were themselves roman-

tically involved with Quinn. That in turn led to an on-

going debate between Quinn’s supporters and oppo-

nents, labeled the Gamergate controversy.

• The condominium association: The Hamptons Metrowest

Condominium Association got an order barring resi-

dent Howard Fox from “post[ing] anything related to

The Hamptons [condo complex],”

and requiring him

to “take down all such information” from his existing

blogs.

Fox had “utilized the internet to voice his dis-

pleasure over the quality of life at the Hamptons.”

• The businessman with an arrest record: Christopher Fuller

got a court order “prohibit[ing] [Frank] Craft from post-

ing anything about Fuller on the internet” for five

years.

Fuller had been arrested for caller ID spoofing

51. For accounts of this from different perspectives, see Zachary Jason, Game of Fear,

OSTON

(Apr. 28, 2015, 5:45 AM), http://www.bostonmagazine.com/news/article/

2015/04/28/gamergate/ [https://perma.cc/N7GS-3MBR]; Cathy Young, Gamergate: Part I:

Sex, Lies, and Gender Games, R

EASON

(Oct 12, 2014, 10:00 AM), http://reason.com/ar-

chives/2014/10/12/gamergate-part-i-sex-lies-and-gender-gam [https://perma.cc/3EL5-

HN4A]; Cathy Young, Gamergate: Part 2: Videogames Meet Feminism, R

EASON

(Oct. 22,

2014, 8:30 AM), http://reason.com/archives/2014/10/22/gamergate-part-2-videogames-

meet-feminis [https://perma.cc/R3SQ-XR2P].

52. Transcript of Proceedings, Hamptons at Metrowest Condo Ass’n v. Fox, No.

2015–CA–007283–O, at 88 (Fla. Cir. Ct. Orange Cty. Apr. 28, 2016); see also TM v. MZ,

926 N.W.2d 900 (Mich. Ct. App. 2018); Appellant’s Supplemental Brief, TM v. MZ, 926

N.W.2d 900 (Mich. Ct. App. 2018) (No. 329190), 2017 WL 6519842 (stating that the case

involved a dispute between local elected officials).

53. Fox v. Hamptons at Metrowest Condo. Ass’n, Inc., 223 So. 3d 453, 455–56 (Fla.

Dist. Ct. App. 2017).

54. Id. at 456 n.1.

55. Initial Brief of Appellant, Craft v. Fuller, No. 2D19–2891, 2019 WL 5778472, at *7

(Fla. Ct. App. Oct. 11, 2019).

2022 Overbroad Injunctions 161

several times; Craft, his former business associate, then

posted a dozen tweets with the hashtag (“#spoofing-

schmuck”) but without using Fuller’s name.

Fuller

claimed the posts would be understood to be about him,

and sought a restraining order—which a judge

granted.

• The political consultant: A court issued an order forbid-

ding Jason Miller’s ex–girlfriend Arlene Delgado, with

whom he had a child, from “engag[ing] in any social

media . . . which comments . . . on [Miller’s] emotional

or mental health or personal behavior.”

Miller was an

adviser to the 2016 and 2020 Trump campaigns, and was

slated to be President Trump’s White House Communi-

cations Director but withdrew when his affair with Del-

gado (a political commentator and also a former Trump

campaign advisor) came to light.

All these, then, were broad injunctions that categorically banned

all speech (or at least all online speech or all social media speech)

by one person about another. I’ll explain in Part II why they are

unconstitutionally overbroad, but for now I want to establish that

such injunctions are indeed being issued.

56. Craft v. Fuller, 298 So. 3d 99, 101–02 (Fla Ct. App. 2020).

57. Initial Brief of Appellant, Craft v. Fuller, No. 2D19-2891, 2019 WL 5778472 (Fla.

Ct. App. Oct. 11, 2019). The order was reversed by Craft v. Fuller, 298 So. 3d 99 (Fla. Ct.

App. 2020).

58. Delgado v. Miller, 314 So. 3d 515, 518 (Fla. Ct. App. 2020) (reversing the order).

The order also imposed a reciprocal obligation on Miller with respect to Delgado.

59. See Murray Waas, Trump Aide Concealed Work for PR Firm and Misled Court to Dodge

Child Support, T

UARDIAN

(Mar. 25, 2021, 5:47 PM), https://www.theguard-

ian.com/us-news/2021/mar/25/jason-miller-trump-aide-teneo-secret-deal-pr-firm

[https://perma.cc/78QF-PCLA].

162 Harvard Journal of Law & Public Policy Vol. 45

B. Injunctions that are narrower but still too broad

Some injunctions are narrower, but still restrict protected speech

because they aren’t limited to speech that falls within recognized

First Amendment exceptions (such as libel or true threats).

1. Negative/derogatory/disparaging speech

Some injunctions ban “negative,” “critical,” “derogatory,” “de-

grading,” “demean[ing],” “offensive,” or “disparag[ing]” material,

without limiting that to defamation.

Yet such negative but not de-

amatory material is fully protected by the First Amendment, as

cases such as Hustler Magazine, Inc. v. Falwell

and Snyder v. Phelps

make clear.

2. Speech interfering with business relationships

One injunction banned a disgruntled ex–tenant from “directly or

indirectly interfering . . . via any . . . material posted . . . in any me-

60. See, e.g., infra notes 215–17.

61. See Appendix.

62. 485 U.S. 46 (1988).

63. 562 U.S. 443 (2011).

64. See, e.g., Shak v. Shak, 144 N.E.3d 274, 277 (Mass. 2020) (“Nondisparagement or-

ders are, by definition, a prior restraint on speech.”); Healey v. Healey, 529 S.W.3d 124,

129 (Tex. App. 2017) (“Expressions of opinion may be derogatory and disparaging but

nevertheless be constitutionally protected.”); Wolfe Financial Inc. v. Rodgers, No.

1:17cv896, 2018 WL 1870464, at *17 (M.D.N.C. Apr. 17, 2018) (rejecting a proposed in-

junction on the grounds that it “would subject [defendant] to imprisonment and fines

. . . for truthful, non–defamatory statements that a judge later deems ‘derogatory’”);

Shoemaker v. Gianopoulos, No. H038576, 2014 WL 320061, at *9 (Cal. Ct. App. Jan. 29,

2014) (“[P]osting disparaging comments about people on internet sites is constitution-

ally protected activity.”); Pickrell v. Verio Pac., Inc., No. B144327, 2002 WL 220650, at

*6 (Cal. Ct. App. Feb. 11, 2002) (invalidating injunction against “disparaging state-

ments,” on the grounds that “[v]igorous criticism, even if amounting to a ‘disparaging

statement,’ is at the heart of constitutionally protected freedom of speech”); Same Con-

dition, LLC v. Codal, Inc., 2021 IL App (1st) 201187, ¶ 36 (Ill. App. Ct. June 21, 2021)

(“[A] court may not enjoin a party from criticizing others ‘even though they find that

criticism distressing.’” (internal punctuation omitted)); Flood v. Wilk, 125 N.E.3d 1114,

1129 (Ill. App. Ct. 2019).

2022 Overbroad Injunctions 163

dia with [the ex–landlord’s] advantageous or contractual and busi-

ness relationships.”

This provision deliberately went beyond def-

amation; indeed, a separate provision of the injunction already

banned speech “calculated to defame.”

Other courts have issued

similar injunctions.

Several more injunctions have barred disgrun-

tled ex–clients from posting reviews of particular businesses or pro-

fessionals, again without any limitation to false and defamatory

factual claims.

Yet speech that interferes with business relationships, for instance

by urging someone not to deal with a company, is generally fully

protected unless it’s defamatory. The tort of intentional interference

with business relations is subject to the same First Amendment con-

straints as is the tort of defamation,

which would include the re-

quirement that liability only be imposed on a finding that the

speaker’s statements included factual falsehoods.

65. Chevaldina v. R.K./FL Management, Inc., 133 So. 3d 1086, 1090–91 (Fla. Ct. App.

2014) (holding this injunction was unconstitutional).

66. Id. at 1091.

67. Hutul v. Maher, No. 1:12–cv–01811, 2012 WL 13075673, at *8 (N.D. Ill. Dec. 10,

2012); DeJager v. Burgess, No. 112CV219299, at 3 ¶ 6 (Cal. Super. Ct. Santa Clara Cty.

Aug. 1, 2012); Comp. Sci. Rsch. Ed. & Apps. v. Prasad, No. 2013 CA 582, at 5 (Fla. Cir.

Ct. Leon Cty. May 5, 2017); Peretti v. Ellis, No. CV 60CV–18–2524 (Ark. Dist. Ct. Pulaski

Cty. Sept. 11, 2018); Izzet Gunbil, L.L.C. v. Estrada, No. 46D01–1908–CT–001985, 2019

WL 11278771, at *3 (Ind. Super. Ct. Laporte Cty. Dec. 16, 2019).

68. Etehad Law v. Anner, No. BC625332 (Cal. Super. Ct. L.A. Cty. Jan. 31, 2017) (bar-

ring “posting . . . any future reviews . . . regarding any and all [past] interaction” be-

tween her and her ex–lawyer); see also Swinyard v. Johnson, No. 190906886 (Utah Dist.

Ct. Salt Lake Cty. Jan. 15, 2020) (“Defendant shall immediately remove any reviews he

has posted online about Plaintiffs [a divorce lawyer and his firm] and Defendant is

further restrained from posting reviews of Plaintiffs in the future.”); William Noble

Rare Jewels, L.P. v. Doe, No. DC–14–14740 (Tex. Dist. Ct. Dallas Cty. Jan. 15, 2005) (like-

wise, as to jeweler).

69. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Moore v. Hoff,

821 N.W.2d 591 (Minn. Ct. App. 2012); Beverly Hills Foodland, Inc. v. United Food &

Com. Workers Union Local 655, 39 F.3d 191, 196 (8th Cir. 1994); A & B–Abell Elevator

Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d 1283, 1295

(Ohio 1995); Unelko Corp. v. Rooney, 912 F.2d 1049, 1058 (9th Cir. 1990); Fendler v. Phx.

Newspapers, 636 P.2d 1257, 1262–63 (Ariz. Ct. App. 1981); Blatty v. N.Y. Times Co., 728

164 Harvard Journal of Law & Public Policy Vol. 45

Other injunctions have barred a defendant from contacting a

plaintiff’s clients or prospective clients. The injunctions applied to

all statements, whether false and defamatory, true, or expressions

of opinion.

These too are unconstitutional: An injunction “which

prohibits [Defendant] generally ‘from contacting past or present cli-

ents of [Plaintiff]’” is overbroad to the extent that it “is not sup-

ported by the district court’s findings of fact or conclusions of law

regarding defamation.”

A similar injunction barred a defendant from contacting a plain-

tiff’s employer or prospective employers.

Indeed, a Tennessee

statute requires courts in all divorce cases to issue orders “restrain-

ing both parties . . . from making disparaging remarks about the

other . . . to either party’s employer.”

But that too is unconstitu-

tional, for the reasons given above.

P.2d 1177, 1182, 1184 (Cal. 1986); Thompson v. Armstrong, 134 A.3d 305, 310 (D.C.

2016); Farah v. Esquire Magazine, 736 F.3d 528, 540 (D.C. Cir. 2013); Dairy Stores, Inc.

v. Sentinel Pub. Co., 465 A.2d 953, 961 (N.J. Super. Ct. 1983); Evans v. Dolfecino, 986

S.W.2d 69, 79 (Tex. App. 1999); Jefferson Cty. School Dist. No. R–1 v. Moody’s Inves-

tor’s Services, Inc., 175 F.3d 848, 856–58 (10th Cir. 1999); Lakeshore Community Hosp.,

Inc. v. Perry, 538 N.W.2d 24, 28 (Mich. Ct. App. 1995); Ward v. Triple Canopy, Inc., No.

8:17–cv–802–T–24 MAP, 2017 WL 3149431, at *5 (M.D. Fla. July 25, 2017) (“Ward’s re-

quest that Triple Canopy be ‘enjoined from taking any further action which harms or

attempts to harm the career’ of Ward is overbroad because it would prohibit more

speech than just that found to be defamatory, and Ward needs to narrow this request.”).

70. See, e.g., Fortas v. Gervais Group, L.L.C., No. 20CV3585 (Ga. Super. Ct. DeKalb

Cty. Apr. 2, 2020) (barring “harassing Plaintiff by contacting . . . Plaintiff’s clients[] or

Plaintiff’s potential clients”); Emergency Motion for Contempt, id. (Ga. Super. Ct. DeK-

alb Cty. May 21, 2020); Adili v. Yarnell, No. 2017–CP–08–552, at 2 ¶ B (S.C. Ct. Com. Pl.

9th Jud. Cir. Feb. 27, 2017); Group for Horizon Ent., Inc. v. Branham, No. 2016–60729,

at 1 ¶ 3 (Tex. Dist. Ct. Harris Cty. Sept. 9, 2016).

71. Ferguson v. Waid, 798 F. App’x 986, 989 (9th Cir. 2020).

72. Hagele v. Burch, No. 07 CVS 19854, at 4 (N.C. Super. Ct. Wake Cty. Aug. 15, 2013).

73. T

ENN

ODE

. § 36–4–106(d)(1)(C).

2022 Overbroad Injunctions 165

3. Specific accusations of misconduct (but with no

finding of libel)

Still other injunctions forbid a speaker from making specific alle-

gations of misconduct against a plaintiff—but without any finding

that the allegations are libelous, or even that they are false:

• In Stark v. Stark,

for instance, Memphis Police Department

Sergeant Joe Stark got a court order requiring his ex–wife,

Pamela Stark, to take down a Facebook post that criticized

him (she had accused him of abusing her) and of the Police

Department (which she had accused of not suitably investi-

gating her claims of abuse).

• Another order restrained a newspaper, the Daily Iberian,

“from publishing or posting on its website any article or

story in which plaintiff David W. Groner is accused of dis-

honesty, fraud or deceit in connection with a Louisiana Su-

preme Court decision or similar matter.”

The Louisiana

Supreme Court had indeed disciplined Groner, a lawyer, af-

ter he entered into a consent agreement admitting, among

other things, that he had knowingly engaged in “misrepre-

sentation” to a client.

• A plaintiff got a pretrial injunction against defendant’s

“[c]ontacting or communicating with people or entities in

Idaho or on the internet concerning the criminal history of

74. Stark v. Stark, No. W2019–00650–COA–R3–CV, 2020 WL 507644 (Tenn. Ct. App.

Jan. 31, 2020).

75. Id. at *2.

76. Groner v. Wick Commc’ns Co., No. 00126863 (La. Dist. Ct. Iberia Parish Aug. 25,

2015); see also Eugene Volokh, Judge to Newspaper: Don’t Publish Any Article in Which a

Lawyer ‘Is Accused of Dishonesty, Fraud or Deceit’ in Connection with His Discipline by the

State Supreme Court, R

EASON

(Sept. 1, 2015, 9:22 AM), https://reason.com/volokh/2015/

09/01/judge-to-newspaper-dont-publis/ [https://perma.cc/T58C-YUM3].

77. In re Groner, 984 So.2d 707 (La. 2008) (mem.); see also Joint Memorandum in Sup-

port of Consent Discipline, at 3, available at https://www.washingtonpost.com/news/

volokh-conspiracy/wp-content/uploads/sites/14/2015/08/GronerMemoRedacted.pdf

[https://perma.cc/TB8M-8GAQ].

166 Harvard Journal of Law & Public Policy Vol. 45

the Plaintiff(s)” or “any allegations of wrongdoing by Plain-

tiffs.”

• Another speaker was barred from “characteriz[ing] Plain-

tiffs as unfit in their business and profession, cast[ing] seri-

ous doubt upon their honesty and integrity, and stat[ing]

that Plaintiffs have committed or are currently committing

a crime or other defamatory allegation.”

This was not lim-

ited to false and defamatory future allegations; it applied

even if defendants learned things that did cast serious

doubt on plaintiffs’ honesty and integrity.

• Another speaker was barred from making statements “sug-

gesting that Plaintiff was not deployed overseas, was not in

combat, was not injured while serving in the United States

Military, and/or did not earn the medals he claims to have

earned,” though the court expressly held that the evidence

does “not confirm, one way, or another, without further in-

vestigation,” the accuracy or inaccuracy of those state-

ments.

• A parent whose child’s body had been prepared at a funeral

home, and who was upset that a convicted sex offender was

working there, was “restrained from speaking, delivering,

publishing, emailing or disseminating information in any

manner regarding [the employee’s] sex offender status, his

address and employment status to anyone anywhere.”

78. Parker v. Casady, No. CV–16–4844 (Idaho Dist. Ct. Bonneville Cty. Jan. 18, 2017).

But see DiTanna v. Edwards, 323 So. 3d 194, 203 (Fla. Dist. Ct. App. June 30, 2021) (strik-

ing down, on First Amendment grounds, an injunction that barred the defendant from

contacting “anyone connected with Petitioner’s employment or school to inquire about

Petitioner”).

79. Adili v. Yarnell, No. 2017–CP–08–552, at 2 ¶ A (S.C. Ct. Com. Pl. 9th Jud. Cir. Feb.

27, 2017).

80. Id.

81. Davis v. Leung, No. 15–1610–CC4, at 2, 3 (Tex. Cty. Ct. Williamson Cty. May 18,

2017).

82. Redmond v. Heller, No. 347505, 2020 WL 2781719, at *3 (Mich. Ct. App. May 28,

2020) (reversing this order on First Amendment grounds).

2022 Overbroad Injunctions 167

• Some speakers have been enjoined from accusing plaintiffs

of crimes, even without a finding that such accusations are

false.

• Some speakers have been enjoined from expressing

pejorative opinions about plaintiffs, including ones that

would be seen under libel law as pure opinions and

therefore as constitutionally protected (e.g., that a plaintiff

is a “bully” or “unprofessional”).

To be sure, I don’t know whether any of these factual allegations

were true. But the point is that the judges in these cases made no

factual findings on the matter—they restrained the speech regard-

less of whether it was true.

4. Accusations of misconduct sent to government au-

thorities

Some courts have barred defendants from submitting complaints

about plaintiffs to the police or to government agencies.

Indeed, a

83. See, e.g., Pearson v. Pearson, No. 417–00143–2017 (Tex. Dist. Ct. Collin Cty. Jan.

24, 2017) (barring “reporting any alleged act regarding the treatment of children of

which he does not have direct personal knowledge in any public forum in reference to”

Plaintiff); Bey v. Rasawehr, 161 N.E.3d 529, 533 (Ohio 2020) (reversing order that had

barred “posting about the deaths of Petitioners’ husbands in any manner that ex-

presses, implies, or suggests that the Petitioners are culpable in those deaths”).

84. Murphy v. Gump, No. 2016–CC–002126–O (Fla. Cty. Ct. Orange Cty. July 18,

2016); see also DCS Real Estate Investments, LLC v. Juravin, No. 2017–CA–0667 (Fla. 5th

Cir. Ct. Feb. 28, 2018) (injunction against using the term “[b]ullying” “to describe the

plaintiffs’ businesses or relationships”).

85. See, e.g., In re Marriage of Meredith, 201 P.3d 1056, 1062 (Wash. Ct. App. 2009)

(reversing such an order); Ruffino v. Lokosky, No. CV 2015–009252, 2017 WL 10487365,

at *1 (Ariz. Super. Ct. Maricopa Cty. Apr. 4, 2017), rev’d sub nom., Lokosky v. Gass, No.

1 CA–SA 18–0101, 2018 WL 3150499, ¶12 (Ariz. Ct. App. 2018) (likewise); Portofino

Towers Condo. Ass’n, Inc. v. Wohlfeld, No. 2018–041933–CA–01 (08), at 2 ¶ 4 (Fla. 11th

Cir. Ct. Feb. 11, 2019) (requiring court approval for reports to government agencies),

modified, id. at ¶ 4.a (Feb. 28, 2019) (removing the preapproval provision); Hagele v.

Burch, No. 07 CVS 19854, at 4 (N.C. Super. Ct. Wake Cty. Aug. 15, 2013) (barring De-

fendant from communicating with National Institutes of Health or National Institute

of Environmental Health Sciences about plaintiff doctor).

168 Harvard Journal of Law & Public Policy Vol. 45

Tennessee statute, noted above, requires courts in all divorce cases

to issue orders “restraining both parties . . . from making disparag-

ing remarks about the other . . . or to either party’s employer.”

When one spouse works for the police department, these orders

forbid the other spouse from filing a complaint with the police, or

with higher–ups in local government.

5. Information about the underlying lawsuit

Some cases have barred the parties from speaking about the court

order itself, or about filings in the case.

These courts did not pur-

port to seal the court records (a process that generally requires a

powerful showing of a need for confidentiality that overcomes the

common–law and constitutional rights of access to court records

Rather, they left the records unsealed but forbade the party from

speaking about the case, including about features of the case that

would not generally be seen as confidential.

6. Pictures of the plaintiff

Some other injunctions ban posts that include pictures of the

plaintiff: Businessman John Textor, for instance, got a court order

barring his billionaire business rival Alki David from “posting any

tweets” or “any images . . . directed at John Textor without a legiti-

mate purpose.”

Community activist Clarence Moriwaki got an or-

der barring a political critic, Richard Rynearson, from “us[ing] the

86. T

ENN

ODE

. § 36–4–106(d)(3).

87. See Stark v. Stark, No. W2019–00650–COA–R3–CV, 2020 WL 507644, at *1 (Tenn.

Ct. App. Jan. 31, 2020).

88. Absolute Pediatric Servs., Inc. v. Humphrey, No. 04CV–18–2961, at 4 ¶ D (Ark.

Cir. Ct. Benton Cty. Nov. 9, 2018) (“All parties are enjoined from disseminating this

order to the public . . . .”); Group for Horizon Ent., Inc. v. Branham, No. 2016–60729, at

2 ¶ 7 (Tex. Dist. Ct. Harris Cty. Sept. 9, 2016) (forbidding “[p]ubliciz[ing] this law suit,

its exhibits, or this Temporary Restraining Order to Plaintiffs’ family, friends, or to their

clients and business colleagues”).

89. See, e.g., Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132 (2d

Cir. 2016).

90. David v. Textor, 189 So. 3d 871, 874 (Fla. Dist. Ct. App. 2016).

2022 Overbroad Injunctions 169

photograph of [Moriwaki] to create memes, posters, or other online

uses.”

I cite several more such cases in the Appendix.

Yet the First Amendment includes the right to illustrate one’s crit-

icisms or comments about people using their photographs. News-

papers and TV stations routinely exercise that right, and other

speakers are entitled to do the same.

7. Other speech

• Use of names in title or domain name: The Moriwaki v. Rynear-

son injunction barred Rynearson from posting sites or pages

“that use the name or personal identifying information of

[Moriwaki] in the title or domain name,” even when the

pages made clear that they were criticizing Moriwaki rather

than being authored or endorsed by him.

• Accusations of figurative lynching: In Brummer v. Wey,

the

plaintiff—a prominent law professor who had been unsuc-

cessfully nominated by President Obama to be on the Com-

modities Futures Trading Commission—got an injunction

restricting an online tabloid from displaying any pictures of

lynchings associated with his name.

The tabloid had ac-

91. Order for Protection, Moriwaki v. Rynearson, No. 12–17, at 2 (Wash. Mun. Ct.

Bainbridge Island July 17, 2017), rev’d, Moriwaki v. Rynearson, No. 17–2–01463–1, 2018

WL 733811 (Wash. Super. Ct. Kitsap Cty. Jan. 10, 2018); see also Appendix (citing more

such cases). The Moriwaki injunction covered even pages that made clear that they

weren’t put up by Plaintiff, such as Defendant’s page that he renamed “Not Clarence

Moriwaki” precisely to alleviate any possible confusion.

92. See Kelley v. Post Publ’g Co., 98 N.E.2d 286 (Mass. 1951); Bremmer v. J.–Trib.

Publ’g Co., 76 N.W.2d 762 (Iowa 1956); Howell v. N.Y. Post Co., Inc., 612 N.E.2d 699

(N.Y. 1993); Bement v. N.Y.P. Holdings, Inc., 760 N.Y.S.2d 133 (N.Y. App. Div. 2003);

Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136 (S.D. Cal. 2005).

93. Order for Protection, Moriwaki v. Rynearson, No. 12–17, at 2 (Wash. Mun. Ct.

Bainbridge Island July 17, 2017), rev’d, Moriwaki v. Rynearson, No. 17–2–01463–1, 2018

WL 733811 (Wash. Super. Ct. Kitsap Cty. Jan. 10, 2018).

94. 166 A.D.3d 475, 476–77 (2018) (reversing this order).

95. Id. at 477.

170 Harvard Journal of Law & Public Policy Vol. 45

cused Professor Brummer (who was himself black) of hav-

ing perpetrated a figurative “lynching” of two black stock-

brokers by being on an arbitration panel that permanently

banned them from their profession.

The images were ac-

cusations that Brummer was the lyncher, not threats that

Brummer would himself be lynched, but the order nonethe-

less banned such images.

• Public records: In Catlett v. Teel,

the plaintiff got an injunc-

tion barring her ex–boyfriend from posting public records

that he had obtained about her, including ones that had

mentioned her past arrests for harassment and domestic as-

sault.

* * *

All the injunctions in this subpart (B) are thus narrower than the

categorical “stop talking about plaintiff” injunctions in Part A. But

they still enjoin speech that falls outside any existing First Amend-

ment exceptions.

II. W

UCH

ROAD

NJUNCTIONS

NCONSTITUTIONAL

A. Supreme Court precedent generally

All these injunctions violate the First Amendment, which gener-

ally protects the right to criticize people, including private figures.

False, defamatory statements of fact about people can lead to liabil-

ity, and might even be enjoinable.

100

But that can’t justify bans

96.

Id. at 476.

97. See id. at 478.

98. 477 P.3d 50 (Wash. Ct. App. 2020) (reversing this order).

99. Id.; see also Wells v. Fischbach, No. A21–0108, 2021 WL 3716677, at *4 (Minn. Ct.

App. Aug. 23, 2021) (affirming denial of harassment restraining order that was based

on publishing information about a person’s past convictions, because “speech that com-

municates readily available public information is protected speech”).

100. See Volokh, Anti–Libel Injunctions, supra note 11, at 90.

2022 Overbroad Injunctions 171

(broad or narrow) on future speech about a person that would

cover protected opinion and protected factually accurate allega-

tions, and not just false factual assertions.

Courts must “look at the injunction as we look at a statute, and if

upon its face it abridges rights guaranteed by the First Amendment,

it should be struck down.”

101

A statute banning someone from say-

ing anything online about a particular person would be unconsti-

tutional; same with the injunction.

Indeed, the Supreme Court struck down such an injunction in Or-

ganization for a Better Austin v. Keefe.

102

In Keefe, local civil rights ac-

tivists decided that Keefe’s real estate sales practices were im-

proper,

103

so they began distributing leaflets in Keefe’s home town,

including to people going to and from Keefe’s church.

104

Some of

the leaflets even included Keefe’s home phone number, and urged

readers to call Keefe and express their disapproval.

105

The leafletters

would do this every few weeks, and threatened to continue until

Keefe stopped doing what the leafletters condemned.

106

101. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 581 (1971). This logic

applies to content–neutral injunctions as well as content–based ones; to the extent some

such injunctions have been upheld, for instance in cases such as Madsen v. Women’s

Health Center, Inc., 512 U.S. 753 (1994), they have been upheld under a test similar to

(though “somewhat more stringent” than) the one for content–neutral statutes. See id.

at 765.

102. 402 U.S. 415 (1971).

103. See id. at 416–17; see also Keefe v. Org. for a Better Austin, 253 N.E.2d 76, 77 (Ill.

App. Ct. 1969), rev’d, 402 U.S. 415 (1971). (“The Austin area is undergoing racial change,

and the [activist group], an integrated community organization, has been working to

keep white residents in the community. In its efforts to stabilize the community and to

deal rationally with integration, the OBA is attempting to stop ‘panic peddling’ by

those brokers who exploit residents of racially changing areas by fomenting panic

among them.”) The Organization for a Better Austin believed Keefe was one such

“panic peddl[er].” Id.

104. Keefe, 402 U.S. at 417.

105. Id.

106.

Id.

172 Harvard Journal of Law & Public Policy Vol. 45

The Illinois courts enjoined the leafletting, but the Supreme Court

reversed on First Amendment grounds.

107

The Court concluded

that even the “inten[t] to exercise a coercive impact . . . does not

remove [the speech] from the reach of the First Amendment. Peti-

tioners plainly intended to influence respondent’s conduct by their

activities; this is not fundamentally different from the function of a

newspaper.”

108

And the Court held that “[d]esignating the conduct

as an invasion of privacy . . . is not sufficient to support an injunc-

tion against peaceful distribution of [such] informational litera-

ture,” when the plaintiff “is not attempting to stop the flow of in-

formation into his own household, but to the public.”

109

Of course, no one wants to be the target of persistent criticism,

especially criticism that one sees as unfair or disproportionate.

Even if the criticism doesn’t include actionable falsehoods, it can

still lead to rejection by prospective employers, customers, social

acquaintances, or romantic partners. Indeed, it can be distressing

just to know that there is such harsh criticism out there, even if one

is confident that almost all readers would recognize that the criti-

cism is unfounded. But courts cannot suppress harsh opinions

about people, just as they cannot suppress even foolish or evil opin-

ions about other matters.

To be sure, the Supreme Court has been open to some restrictions

on sending unwanted speech to people. In Rowan v. U.S. Post Office

Department,

110

for instance, the Court upheld a law that let house-

holders demand that particular senders stop sending them mail,

and made it a crime to violate such a demand.

111

“[N]o one,” the

Court held, “has a right to press even ‘good’ ideas on an unwilling

107. See id. at 417–20.

108. Id. at 419.

109. Id. at 419–20.

110. 397 U.S. 728 (1970).

111. Id. at 737.

2022 Overbroad Injunctions 173

recipient.”

112

Likewise, the Court has seemed open to the constitu-

tionality of properly crafted telephone harassment laws.

113

This

principle could also apply to unwanted email, unwanted comments

on others’ Facebook pages, or perhaps even unwanted “tagging”

that one knows generally yields automatic notification to the target

(as @ mentioning does on Twitter).

114

But when it comes to speech

about people, which may reach willing listeners (even if it’s about

an unwilling subject), Keefe makes clear that this speech is generally

constitutionally protected.

115

B. Protection for photographs and other information about people

Restrictions on all speech about a person are thus unconstitu-

tional; but so are narrower restrictions, so long as they focus on

speech that falls outside a First Amendment exception. Take, for

instance, NAACP v. Claiborne Hardware Co., in which the organizers

of a boycott of white–owned stores demanded that black customers

112. Id. at 738.

113. FCC v. Pacifica Found., 438 U.S. 726, 749–50 (1978) (lead opin.); Frisby v. Schultz,

487 U.S. 474, 484 (1988). Note that unwanted speech to government officials may often

be constitutionally protected. See, e.g., State v. Fratzke, 446 N.W.2d 781, 782, 785 (Iowa

1989); State v. Drahota, 788 N.W.2d 796, 798, 804 (Neb. 2010); Commonwealth v. Bige-

low, 59 N.E.3d 1105, 1108, 1112 (Mass. 2016); United States v. Popa, 187 F.3d 672, 673

(D.C. Cir. 1999). But see United States v. Waggy, 936 F.3d 1014, 1015 (9th Cir. 2019).

114. See, e.g., Polinsky v. Bolton, No. A16–1544, 2017 WL 2224391, at *4 (Minn. Ct.

App. May 22, 2017); Nancy Leong & Joanne Morando, Communication in Cyberspace, 94

N.C.

. 105, 120, 123–24 (2015) (“[B]y tagging the target of a message, the speaker

has taken affirmative steps to ensure that the target receives the message.”).

115. Several opinions have expressly recognized this distinction, using this very lan-

guage. David v. Textor, 189 So. 3d 871, 874 (Fla. Dist. Ct. App. 2016) (expressly recog-

nizing this distinction); Krapacs v. Bacchus, 301 So. 3d 976, 980 (Fla. Dist. Ct. App. 2020)

(likewise); McCurdy v. Maine, No. 2:19–CV–00511–LEW, 2020 WL 1286206, at *8 (D.

Me. Mar. 18, 2020); see also State v. Shackelford, 825 S.E.2d 689, 703 & n.7 (N.C. Ct. App.

2019) (Murphy, J., concurring); State v. Kimball, 8 Wash. App. 2d 1021, 2019 WL

1488879, at *4 (2019); see also A.S.R. v. A.K.A., 84 N.E.3d 1276, 1285 (Mass. App. Ct. 2017)

(distinguishing speech to the plaintiff from “political speech directed to the public at

large,” though it’s not clear what result the court would have reached as to speech that

was directed to the public at large but was nonpolitical).

174 Harvard Journal of Law & Public Policy Vol. 45

stop shopping at those stores.

116

The organizers stationed “store

watchers” outside the stores to take down the names of black shop-

pers who were not complying with the boycott.

117

Those names

were then read aloud at meetings at a local black church, and

printed and distributed to other black residents.

118

Some of the non-

complying shoppers were physically attacked for refusing to go

along with the boycott.

119

But the Court held that the First Amendment protected publish-

ing the fact that the noncomplying shoppers were not complying

with the boycott, despite the backdrop of violence and the attempt

to use social ostracism to pressure black shoppers to forgo their le-

gal rights to shop at white–owned stores.

120

Though “[p]etitioners

admittedly sought to persuade others to join the boycott through

social pressure and the ‘threat’ of social ostracism,” the Court held,

“[s]peech does not lose its protected character . . . simply because it

may embarrass others or coerce them into action.”

121

Both financial

liability for such speech and an injunction against such speech was

unconstitutional, the Court concluded.

122

Likewise, Florida Star v. B.J.F.

123

makes clear that there is a First

Amendment right to publish the lawfully obtained fact that a par-

ticular named person had been the victim of a crime (there, rape).

124

And publishing people’s photographs, so long as it isn’t done for

purposes of advertising or merchandising, is constitutionally pro-

tected as well.

125

116. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 887 (1982).

117. Id. at 897.

118. Id. at 903–04.

119. Id.

at 894.

120. Id. at 888.

121. Id. at 909–10.

122. Id. at 924 & n.67.

123. Fla. Star v. B.J.F., 491 U.S. 524 (1989).

124. Id. at 526, 541.

125. See, e.g., Pott v. Lazarin, 260 Cal. Rptr. 3d 631, 638–39 (Ct. App. 2020); Montana

v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639, 640 (Ct. App. 1995); Foster v. Sven-

son, 7 N.Y.S.3d 96, 100 (N.Y. App. Div. 2015); Hoffman v. Capital Cities/ABC, Inc., 255

F.3d 1180, 1183–84 (9th Cir. 2001).

2022 Overbroad Injunctions 175

Of course, repeated criticism, even if it consists of opinions and

accurate factual statements (and is thus not limited to actionable,

enjoinable libel) is undoubtedly disquieting:

1. It can damage reputation, often using claims that a

judge may view as unfair, even though not libelous.

That is especially so if the criticism becomes prominent

in Google searches for one’s name, and defines one to

strangers or casual acquaintances.

2. Such criticism can be perceived as intruding on privacy,

by making its targets feel that they have become the ob-

ject of others’ condemnation, or even just curiosity or

amusement. The law does not generally treat that as ac-

tionable invasion of privacy (outside the narrow zone of

the disclosure of private facts), but I suspect many peo-

ple perceive it as an intrusion, and some judges may

agree.

(If the criticism gets more of a direct readership, for instance if it

gets redistributed via Twitter or Facebook, it can lead to threats

against the person being criticized, or even physical attacks;

126

but I

leave that matter for another article, and focus here on perceived

harm to reputation and privacy.)

Yet equally clearly, our legal system takes the view that such ef-

fects on reputation and privacy cannot themselves justify restrict-

ing speech. Near v. Minnesota,

127

one of the two earliest cases in

which the Court struck down government action on free speech or

free press grounds, involved a newspaper’s repeated, unfair, anti–

126. Christina Capecchi & Katie Rogers, Killer of Cecil the Lion Finds out That He Is a

Target Now, of Internet Vigilantism, N.Y.

IMES

(July 29, 2015), https://www.ny-

times.com/2015/07/30/us/cecil-the-lion-walter-palmer.html [https://perma.cc/CW32-

25XU]. Cf. NAACP v. Claiborne Hardware Co., 458 U.S. at 933 (holding that speech

identifying people who aren’t complying with a boycott was constitutionally protected,

even when there was evidence that some people criminally attacked those people as a

result of the speech).

127. 283 U.S. 697 (1931).

176 Harvard Journal of Law & Public Policy Vol. 45

Semitic criticisms of various people.

128

Organization for a Better Aus-

tin v. Keefe (noted in the previous section) and NAACP v. Claiborne

Hardware Co. similarly involved speech that was personalized, of-

fensive to its subjects, and indeed potentially coercive.

129

But the

cases held that such speech could not be broadly restricted up

front—only damages liability and perhaps prosecutions for specific

constitutionally unprotected libelous statements would be al-

lowed.

130

C. State and federal appellate precedents

Unsurprisingly, when the injunctions that I describe are ap-

pealed, they are generally struck down. We see that with regard to

unduly broad injunctions issued in libel cases, such as:

1. In Puruczky v. Corsi,

131

the Ohio Court of Appeals held

that an order that “Corsi cannot contact anyone about or

in relation to Puruczky” was an unconstitutional prior re-

straint,

132

because “the trial court did not make a specific

128. Id. at 703–04, 722–23.

129. NAACP v. Claiborne Hardware Co., 458 U.S. at 909–10. Claiborne Hardware did

stress that the speech there was aimed at promoting equal rights, and was thus “de-

signed to force governmental and economic change and to effectuate rights guaranteed

by the Constitution itself.” Id. at 914. But the Court had long made clear that the First

Amendment rules are the same for pro–civil–rights speech and for other speech. See,

e.g., NAACP v. Button, 371 U.S. 415, 444 (1963) (“That the petitioner happens to be en-

gaged in activities of expression and association on behalf of the rights of Negro chil-

dren to equal opportunity is constitutionally irrelevant to the ground of our decision.

The course of our decisions in the First Amendment area makes plain that its protec-

tions would apply as fully to those who would arouse our society against the objectives

of the petitioner.”). And courts have naturally relied on Claiborne Hardware far outside

the context of pro–civil–rights speech. See, e.g., Bey v. Rasawehr, 161 N.E.3d 529, 544

(Ohio 2020).

130. See Near, 283 U.S. at 736.

131. 110 N.E.3d 73 (Ohio Ct. App. 2018).

132. Id. at 81.

2022 Overbroad Injunctions 177

finding that speech which had already taken place con-

stituted libel or defamation and cannot assume that fu-

ture speech will fall into such a category.”

133

2. In Ellerbee v. Mills,

134

the Georgia Supreme Court “re-

verse[d] the injunction” that barred the defendant from

making 27 specific statements about the plaintiff, “be-

cause the jury did not find all of those statements defam-

atory in its verdict and because the order sweeps more

broadly than necessary.”

135

3. In McCarthy v. Fuller,

136

the Seventh Circuit reversed an

injunction on the grounds that it “forb[ade] statements

not yet determined to be defamatory,” and thus “could

restrict lawful expression”; for example, the injunction

“order[ed] Hartman to take down his website, which

would prevent him from posting any nondefamatory

messages on his blog; it would thus enjoin lawful

speech.“

137

4. In Ferguson v. Waid,

138

the Ninth Circuit reversed an in-

junction barring Ferguson—who had been found to

have libeled Waid—“from contacting past or present cli-

ents of Brian J. Waid, either in person, via telephone, or

by electronic communications.”

139

(The lawsuit was

brought by Waid, who didn’t want to be spoken about,

not by clients of his saying that they didn’t want to be

133. Id. at 82.

134. 422 S.E.2d 539 (Ga. 1992).

135. Id. at 540–41.

136. 810 F.3d 456 (7th Cir. 2015).

137. Id. at 462.

138. 798 F. App’x 986 (9th Cir. 2020).

139. Id. at 989.

178 Harvard Journal of Law & Public Policy Vol. 45

spoken to.) The injunction, the court held, was “over-

broad,” because it wasn’t limited to “statements found

to be defamatory.”

140

5. Appellate opinions in California, Illinois, Minnesota,

Nebraska, Nevada, and (in a nonprecedential decision)

Tennessee have likewise struck down, on overbreadth

grounds, injunctions in libel cases that weren’t limited

to banning repetition of the specific statements found to

be libelous.

141

And courts have held the same with regard to broad injunctions

entered in harassment or cyberstalking cases—unsurprising, be-

cause the First Amendment protects speech about people regard-

less of the state law cause of action that purports to restrict the

speech:

142

1. In Evans v. Evans,

143

the California Court of Appeal

struck down a preliminary injunction prohibiting an ex–

wife from posting “false and defamatory statements”

140. Id.

141. See Wallace v. Cass, No. G036490, 2008 WL 626475, at *8–*9 (Cal. Ct. App. 2008)

(“[Defendant] may be enjoined from posting signs repeating the kinds of statements

about the Plaintiffs that have already been adjudicated as defamatory, but paragraph

4(a) sweeps up any nondefamatory statements she makes about them as well and is too

broad.”); see also Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 352 (Cal. 2007)

(setting aside a provision of an injunction that banned defendant from “initiating con-

tact with individuals known to Defendant to be employees of Plaintiff”); Same Condi-

tion, LLC v. Codal, Inc., No. 1–20–1187, 2021 WL 2525659, ¶49 (Ill. App. Ct. June 21,

2021); Griffis v. Luban, No. CX–01–1350, 2002 WL 338139, at *6 (Minn. Ct. App. Mar. 5,

2002); Gillespie v. Council, No. 67421, 2016 WL 5616589, at *5 (Nev. Ct. App. Sept. 27,

2016); Nolan v. Campbell, 690 N.W.2d 638, 652–53 (Neb. 2004); see also Kauffman v.

Forsythe, No. E2019–02196–COA–R3–CV, 2021 WL 2102910, at *6 (Tenn. Ct. App. May

25, 2021).

142. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 269 (1964) (constitutional pro-

tection does not turn on “‘mere labels’ of state law”); see supra cases cited in note 69

(concluding that interference with business relations claims are subject to the same First

Amendment constraints as libel claims); see also Russell v. Thomson Newspapers, Inc.,

842 P.2d 896, 905–06 (Utah 1992) (same as to the intentional infliction of emotional dis-

tress); Nelson v. Pagan, 377 S.W.3d 824, 837 (Tex. App. 2012) (same).

143. 76 Cal. Rptr. 3d 859 (Ct. App. 2008).

2022 Overbroad Injunctions 179

and “confidential personal information” about her ex–

husband online.

144

The injunction, the court noted, was

not limited to statements that had been found to be con-

stitutionally unprotected.

145

2. In David v. Textor, the Florida Court of Appeal struck

down an injunction barring “text messages, emails, . . .

tweets[, or] . . . any images or other forms of communi-

cation directed at John Textor without a legitimate pur-

pose.”

146

This injunction, the court held, was a forbidden

“prior restraint” because it prevented “not only commu-

nications to Textor, but also communications about Tex-

tor.”

147

Several other Florida appellate decisions have

taken the same view.

148

144. Id. at 869.

145. Id. at 863; see also Altinawi v. Salman, No. B284071, 2018 WL 5920276, at *6 (Cal.

Ct. App. Nov. 13, 2018) (finding that “the restraining order,” which “required Salman

to remove all comments about Altinawi and Altinawi’s job from social media and blogs,

and barred Salman from future posting of similar material,” was “clearly overbroad, as

it encompassed speech the court itself recognized as constitutionally protected (such as

reviews of the nightclub and Altinawi’s behavior as an employee there)”); Molinaro v.

Molinaro, 245 Cal. Rptr. 3d 402, 408 (Ct. App. 2019) (“[T]he part of the order prohibiting

Michael from posting ‘anything about the case on Facebook’ is overbroad and imper-

missibly infringes upon his constitutionally protected right of free speech.”).

146. 189 So. 3d 871, 874 (Fla. Ct. App. 2016).

147. Id. at 876 (emphasis in original).

148. See, e.g., DiTanna v. Edwards, 323 So. 3d 194 (Fla. Dist. Ct. App. 2021); Krapacs

v. Bacchus, 301 So. 3d 976 (Fla. Dist. Ct. App. 2020); Logue v. Book, 297 So. 3d 605 (Fla.

Dist. Ct. App. 2020) (en banc); Fox v. Hamptons at Metrowest Condominium Ass’n,

Inc., 223 So.3d 453, 457 n.3 (Fla. Dist. Ct. App. 2017); O’Neill v. Goodwin, 195 So.3d 411,

414 (Fla. Dist. Ct. App. 2016). All these injunctions barred defendants from posting an-

ything about plaintiffs on the Internet. See also Chevaldina v. R.K./FL Mgmt., Inc., 133

So. 3d 1086, 1091 (Fla. Dist. Ct. App. 2014) (striking down an injunction that barred

“directly or indirectly interfering in person, orally, in written form or via any blogs or

other material posted on the internet or in any media with Plaintiffs’ advantageous or

contractual and business relationships” or “directly or indirectly publishing any blogs

or any other written or spoken matter calculated to defame, tortuously interfere with,

invade the privacy of, or otherwise cause harm to Plaintiffs”).

180 Harvard Journal of Law & Public Policy Vol. 45

3. In Flood v. Wilk, the Appellate Court of Illinois struck

down as unconstitutional an order prohibiting the re-

spondent from “communicating in any form any writ-

ing naming or regarding [petitioner], his family or any

employee, staff or member of [the petitioner’s congrega-

tion].”

149

4. In TM v. MZ,

150

the Michigan Court of Appeals reversed

a protective order aimed at forbidding the defendant

from reposting “highly inflammatory and negative . . .

comments” about petitioner and her family online, in-

cluding allegations that she was involved in a kidnap-

ping.

151

The order, the court held, was an unconstitu-

tional prior restraint, even if the defendant’s words

“amounted to harassment or obnoxiousness.”

152

5. In In re Marriage of Suggs,

153

the Washington Supreme

Court set aside a civil harassment restraining order that

barred “knowingly and willfully making invalid and

unsubstantiated allegations or complaints to third par-

ties . . . for the purpose of annoying, harassing, vexing,

or otherwise harming” her ex–husband, who was a po-

lice officer, “and for no lawful purpose.”

154

The order,

the court held, was an “unconstitutional prior restraint,”

in part because it “chill[ed] all of [the ex–wife’s] speech

about [the ex–husband], including that which would be

constitutionally protected, because it is unclear what she

can and cannot say.”

155

149. 125 N.E.3d 1114, 1116 (Ill. App. Ct. 2019).

150. 926 N.W.2d 900 (Mich. Ct. App. 2018).

151. Id. at 904.

152. Id. at 910; see also Redmond v. Heller, 957 N.W.2d 357, 376 (Mich. Ct. App. May

28, 2020) (striking down injunction on First Amendment grounds because it “poten-

tially covers much more than the specific four statements found to be defamatory”).

153. 93 P.3d 161 (Wash. 2004).

154. Id. at 162; see also In re Marriage of Meredith, 201 P.3d 1056, 1062 (Wash. Ct.

App. 2009); Catlett v. Teel, 477 P.3d 50 (Wash. Ct. App. 2020).

155. In re Marriage of Suggs, 93 P.3d at 166.

2022 Overbroad Injunctions 181

The upshot of these cases is consistent and simple: Injunctions

against speech about a person are unconstitutional if they bar

speech about people (and not just to them) and go beyond consti-

tutionally unprotected categories of speech (such as defamation or

true threats).

III. T

OCTRINAL

EFENSES OF THE

ROAD

NJUNCTIONS

I suspect the legal framework in Part II will not be controversial

among First Amendment lawyers and academics.

156

And, as Part C

notes, most appellate courts that have considered the issue have re-

jected these sorts of orders. But some courts have nonetheless up-

held them; let me turn here to discussing the doctrinal reasons they

have given.

A. Content neutrality

Some courts have reasoned that stop – speaking – about–plaintiff

injunctions are content–neutral, and therefore subject to much less

demanding First Amendment scrutiny than content–based re-

strictions would be:

[The order] is limited to social and electronic network remarks

“regarding Plaintiff.” As written, therefore, the proscription is not

concerned with the content of Appellant’s speech but with,

instead, the target of his speech, namely, Plaintiff, whom the court

has already deemed the victim of his abusive conduct.

157

156. See, e.g., David S. Ardia, Freedom of Speech, Defamation, and Injunctions, 55 W

ARY

. 1, 52–53 (2013) (concluding that stop–speaking–about–plaintiff injunc-

tions “are plainly overbroad and therefore unconstitutional”); Aaron H. Caplan, Free

Speech and Civil Harassment Orders, 64 H

ASTINGS

L.J. 781, 822–24 (2013).

157. Commonwealth v. Lambert, 147 A.3d 1221, 1229 (Pa. Super. Ct. 2016); see also

S.B. v. S.S., 243 A.3d 90, 106 (Pa. 2020). Some injunctions, for instance ones banning

coming near plaintiff or speaking to plaintiff, may indeed be content–neutral. See, e.g.,

PLT v. JBP, No. 346948, 2019 WL 7206134, at *5 (Mich. Ct. App. Dec. 26, 2019); Scott v.

Steiner, No. B258400, 2015 WL 9311734, at *6 (Cal. Ct. App. Dec. 22, 2015); Arnold v.

182 Harvard Journal of Law & Public Policy Vol. 45

But that is mistaken, for reasons the Ohio Supreme Court recog-

nized in Bey v. Rasawehr:

[T]he “target” of such speech necessarily concerns the subject

matter of the speech. [An injunction against such speech about a

person] “cannot be justified without reference to the content of the

prohibited communication.” It requires an examination of its

content, i.e, the person(s) being discussed, to determine whether

a violation has occurred and is concerned with undesirable effects

that arise from “the direct impact of speech on its audience or

listeners’ reactions to speech.” We therefore cannot accept

appellees’ attempt to characterize the order banning all posted

speech about them as merely a content–neutral regulation.

158

The injunctions we’re discussing “on [their] face” draw distinc-

tions based on the “communicative content” of what a speaker con-

veys.

159

They define the forbidden speech based on “the topic dis-

cussed” (the plaintiffs).

160

They were “adopted by the government

because of disagreement with the message [the speech] conveys,” a

Toole, No. D067317, 2015 WL 6746572, at *3 (Cal. Ct. App. Nov. 5, 2015); Rew v. Berg-

strom, 845 N.W.2d 764, 777 (Minn. 2014); R.D. v. P.M., 135 Cal. Rptr. 3d 791, 799 (Ct.

App. 2011); State v. Noah, 9 P.3d 858, 867 (Wash. Ct. App. 2000). This Article, though,

focuses on injunctions against speech about the plaintiff.

158. Bey v. Rasawehr, 161 N.E.3d 529, 539 (Ohio 2020) (partly cleaned up). See also

Same Condition, LLC v. Codal, Inc., 2021 IL App (1st) 201187, ¶ 34 (2021) (holding that

order banning defendants “from making any additional posts online regarding Codal”

is content–based, because it “clearly intended to regulate the content of [defendants’]

speech, namely any online speech involving Codal,” and “in order to determine

whether [defendants] violated the court’s order, one would have to examine the content

of their online posting”); Lo v. Chan, 2015 WL 9589351 (Cal. Ct. App. Dec. 30, 2015)

(holding that order “prohibiting appellants from approaching, yelling out, or calling

out to parishioners concerning respondent or other church officials from the Cerritos

College parking lot on any day church services are held is, on its face, an impermissible

content–based prior restraint of speech”); Sarver v. Chartier, 813 F.3d 891, 903 (9th Cir.

2016) (recognizing that a state right of publicity law, which bars commercial uses of a

plaintiff’s name, likeness, or other attributes of identity, is content–based).

159. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).

160. Id.

2022 Overbroad Injunctions 183

“separate and additional” basis for finding the restriction to be con-

tent–based.

161

Determining whether the defendant is violating the

order requires “‘enforcement authorities’ to ‘examine the content of

the message that is conveyed to determine whether’ a violation has

occurred,”

162

and in particular whether the defendant’s new speech

contains a reference to plaintiffs.

Nor does it matter that the speech may be covered by a stalking

or harassment statute that applies generally to “a pattern of con-

duct.”

163

Speech does not lose its First Amendment protection

simply because it’s restricted as part of a broader conduct re-

striction, at least when the conduct restriction applies to the speech

precisely because of what it communicates.

The leading case on such conduct restrictions—ones that include

speech because of what it says—is Holder v. Humanitarian Law Pro-

ject,

164

where a federal statute forbade providing “material support”

to foreign terrorist organizations.

165

The statute restricted providing

money, goods, or soldiers to such organizations, but also swept in

speech such as training the organizations in international law or

advising them on petitioning the United Nations.

166

The govern-

ment sought to categorize the speech restriction as merely inci-

dental, because it was part of a restriction on a broad course of con-

duct.

167

But the Court disagreed: “The law here may be described

as directed at conduct, . . . but as applied to plaintiffs the conduct

triggering coverage under the statute consists of communicating a

161. Id. (citation omitted).

162. McCullen v. Coakley, 573 U.S. 464, 479 (2014) (citation omitted).

163. See, e.g., F

TAT

. §§ 784.048–.0485.

164. 561 U.S. 1 (2010).

165. Id. at 28.

166. Id. at 27.

167. Id. at 27–28.

184 Harvard Journal of Law & Public Policy Vol. 45

message.”

168

The law therefore had to be treated as a speech re-

striction, not merely a conduct restriction.

169

The same was true in Cohen v. California,

170

the main precedent on

which Humanitarian Law Project relied on this point. “Cohen also in-

volved a generally applicable regulation of conduct, barring

breaches of the peace.”

171

“But when Cohen was convicted for wear-

ing a jacket bearing an epithet,” “we recognized that the generally

applicable law was directed at Cohen because of what his speech

communicated—he violated the breach of the peace statute because

of the offensive content of his particular message.”

172

Likewise, even if a defendant’s speech that violates a stop – talk-

ing – about–plaintiff injunction also violates a stalking or harass-

ment statute, it does so because of what the speech communicated.

The injunction must therefore be treated as a content–based speech

restriction.

B. “Speech integral to criminal conduct”

Some litigants have argued that broad “anti–harassment” injunc-

tions are constitutional under the First Amendment exception for

“speech integral to criminal conduct”: The enjoined speech, the the-

ory goes, is integral to criminal harassment or stalking.

173

The speech integral to criminal conduct exception generally ap-

plies to speech that’s closely connected to a nonspeech crime (or a

crime involving unprotected speech, such as child pornography).

168. Id. at 28.

169. The Court ultimately upheld this “content–based regulation of speech,” but only

because it was “carefully drawn to cover only a narrow category of speech” that impli-

cated “the Government’s interest in combating terrorism[, which] is an urgent objective

of the highest order.” Id. at 26–28.

170. 403 U.S. 15 (1971).

171. Holder, 561 U.S. at 28.

172. Id. For many more examples, see Eugene Volokh, Speech as Conduct: Generally

Applicable Laws, Illegal Courses of Conduct, “Situation–Altering Utterances,” and the Un-

charted Zones, 90 C

ORNELL

. 1277 (2005).

173. Merit Brief of Appellees, Bey v. Rasawehr, No. 2019–0295, at 7–14 (Ohio Aug.

20, 2019).

2022 Overbroad Injunctions 185

Speech that threatens illegal conduct might qualify.

174

So might

speech that solicits illegal conduct.

175

An injunction against such

threats or solicitation might thus fit within the exception—but an

injunction against all speech about a person is not thus limited.

Some courts have upheld criminal prosecutions under a federal

stalking statute that criminalizes (among other things) repeated

speech that “causes, attempts to cause, or would be reasonably ex-

pected to cause substantial emotional distress” and is said “with

the intent to . . . harass,”

176

reasoning that this speech is integral to

the criminal conduct that the statute itself bans.

177

One such case, Petrovic, involved speech that genuinely was inte-

gral to a separate crime (extortion). Petrovic threatened to publish

nude photos of M.B. and other personal information about her if

she ended their relationship; when she did end it, he mailed post-

cards to her family and workplace, as well as local businesses, with

a link to a website where he posted the photos and information.

178

A jury found Petrovic guilty of extortion (in violation of 18 U.S.C.

§ 875(d)), as well as violating the interstate stalking statute

(18 U.S.C. § 2261A(2)(A)).

179

The Eighth Circuit held that “[t]he

communications for which Petrovic was convicted under

§ 2261A(2)(A) were integral to this criminal conduct as they consti-

tuted the means of carrying out his extortionate threats.”

180

Another case, Osinger, did appear to involve speech that was pun-

ished without a connection to a separate crime; the court concluded

that the speech there—posting revenge porn of an ex–girlfriend—

174. See Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 C

OR-

NELL

. 981, 1003–07 (2016).

175. Id. at 989–97.

176. 18 U.S.C. § 2261A(2)(B).

177. United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012); United States v. Osinger,

753 F.3d 939 (9th Cir. 2014); United States v. Gonzalez, 905 F.3d 165 (3d Cir. 2018).

178. See 701 F.3d at 852–53.

179. See id. at 854.

180. Id. at 855 (emphasis added).

186 Harvard Journal of Law & Public Policy Vol. 45

was integral to his criminal conduct “in intentionally harassing, in-

timidating or causing substantial emotional distress to V.B.”

181

One

more case, Gonzalez, followed the same approach.

182

But I think that

Osinger and Gonzalez are unsound applications of the “speech inte-

gral to criminal conduct” doctrine, even in the context of criminal

cyberstalking prosecutions.

183

Perhaps the results in some such

cases might be defended on some other theory, for instance that re-

venge porn (Osinger) is a constitutionally unprotected invasion of

privacy,

184

or that the speech in Gonzalez was libelous and thus con-

stitutionally unprotected.

185

The “speech integral to criminal con-

duct” rationale, though, cannot itself justify criminal harassment

statutes; and several state appellate decisions agree.

181. 753 F.3d at 947. Two of the cases Osinger cited to support its holding, Petrovic

and United States v. Meredith, 685 F.3d 814 (9th Cir. 2012), involved speech integral to

the commission of a separate crime (extortion in Petrovic, fraud in Meredith). One other

case, United States v. Shrader, did not address the “speech integral to criminal conduct”

exception, but dealt only with a vagueness challenge. 675 F.3d 300, 311 (4th Cir. 2012).

I think Judge Watford had the better approach to Osinger; he concurred because he

saw the speech as continuing a course of harassment that began with Osinger physi-

cally stalking his victim, 753 F.3d at 952 (Watford, J., concurring), and he noted that

“[c]ases in which the defendant’s harassing ‘course of conduct’ consists entirely of

speech that would otherwise be entitled to First Amendment protection” raise “a ques-

tion whose resolution we wisely leave for another day.” Id. at 954.

182. In Gonzalez, the Third Circuit made a similar mistake to that in Osinger, applying

the “integral to criminal conduct” exception to speech that was not connected to a sep-

arate crime. 905 F.3d 165, 193 (3d Cir. 2018). See also Commonwealth v. Johnson, 21

N.E.3d 937 (Mass. 2014); United States v. Sergentakis, 2015 WL 3763988, at *4–*7

(S.D.N.Y. 2015).

183. For much more on my disagreement with those cases, see Volokh, The “Speech

Integral to Criminal Conduct” Exception, at 1036–43; what follows in the text is a quick sum-

mary of my argument, coupled with material from cases decided after that article was writ-

ten.

184. See, e.g., Volokh, What Cheap Speech Has Done: (Greater) Equality and Its Discon-

tents, supra note 12, at 2303; Eugene Volokh, The Freedom of Speech and Bad Purposes, 100

UCLA

. 1366, 1378 (2016); State v. VanBuren, 214 A.3d 791 (Vt. 2019); cf. Borzych

v. Hart, No. 2019CV008976 (Wisc. Cir. Ct. Milwaukee Cty. Dec. 5, 2019) (docket entry,

available on Westlaw Dockets) (harassment order enjoining the posting or emailing of

“any explicit images of the petitioner”).

185. 905 F.3d at 192–93.

2022 Overbroad Injunctions 187

Thus, in People v. Relerford,

186

the Illinois Supreme Court held that

an Illinois stalking law could not be justified under the “speech in-

tegral to criminal conduct” exception, because it was not limited to

speech “‘proximate[ly] link[ed]’” to “some other criminal act.”

187

Instead, the court concluded, “[i]n light of the fact that a course of

conduct [under the Illinois law] can be premised exclusively on two

communications to or about a person,” the stalking law “is a direct

limitation on speech that does not require any relationship—inte-

gral or otherwise—to unlawful conduct.”

188

Under the Illinois law, “the speech [was] the criminal act,” and

the speech integral to criminal conduct exception therefore did not

apply.

189

As an Illinois appellate case later held, “without this link

between the unprotected speech and a separate crime, the excep-

tion would swallow the first amendment whole: it would give the

legislature free rein to criminalize protected speech, then permit the

courts to find that speech unprotected simply because the legisla-

ture criminalized it.”

190

Similarly, in Matter of Welfare of A.J.B.,

191

the Minnesota Supreme

Court rejected the government’s argument that a stalking by mail

statute was valid under the “speech integral to criminal conduct”

exception.

192

The court held the argument was “circular,” since “the

speech covered by the statute is integral to criminal conduct be-

cause the statute itself makes the conduct illegal.”

193

Thus, the stat-

ute was unconstitutional, because it was not limited to speech

aimed “to induce or commence a separate crime.”

194

186. 104 N.E.3d 341 (Ill. 2017).

187. Id. at 352.

188. Id.

189. Id.

190. Flood v. Wilk, 125 N.E.3d 1114, 1128 (Ill. App. Ct. 2019).

191. 929 N.W.2d 840 (Minn. 2019).

192. Id. at 859.

193. Id.

194. Id. at 852. See also Burroughs v. Corey, 92 F. Supp. 3d 1201, 1209 n.16 (M.D. Fla.

2015) (“Burroughs asserts that an argument for the ‘speech integral to criminal conduct’

188 Harvard Journal of Law & Public Policy Vol. 45

In State v. Doyal,

195

the Texas Court of Criminal Appeals (Texas’

highest court for criminal cases) likewise wrote:

The State also contends that any speech that is implicated by the

statute is unprotected because it constitutes “speech integral to

criminal conduct.” But the cases that involve this form of

unprotected speech involve speech that furthers some other activity

that is a crime.

196

And in State v. Shackelford, the North Carolina Court of Appeals

held that a stalking statute was unconstitutional as applied to the

defendant’s social media posts because,

Defendant’s indictments were premised . . . upon social media

posts . . . that he wrote about Mary but did not send directly to her

(or, for that matter, to anyone else). . . . [H]is speech itself was the

crime.

For this reason, the First Amendment is directly implicated by

Defendant’s prosecution . . . . We therefore reject the State’s

argument that Defendant’s posts fall within the “speech integral

to criminal conduct” exception. . . . (“[The statute] does not

incidentally punish speech that is integral to a criminal violation;

the speech itself is the criminal violation.”)

197

Legislatures are free to punish nonspeech conduct, as well as nar-

row categories of constitutionally unprotected speech, such as true

threats. But they cannot label speech that mentally distresses peo-

ple “stalking” and then punish all such speech.

198

exception is circular with respect to this statute because the speech is only integral to

criminal conduct because this statute criminalizes the conduct. Burroughs is right that

speech cannot be unprotected only because it is criminal in the challenged statute.

However, speech is unprotected where it is integral to criminal conduct forbidden under

another statute, such as where the speech constitutes the crime of extortion.”), aff’d, 647

F. App’x 967 (11th Cir. 2016).

195. 589 S.W.3d 136 (Tex. Crim. App. 2019).

196. Id. at 143 (emphasis added).

197. 825 S.E.2d 689, 698–99 (N.C. Ct. App. 2019).

198. Mashaud v. Boone, 256 A.3d 235 (D.C. Aug. 12, 2021), review en banc granted, noted

the tension between A.J.B. and some of the federal stalking cases, such as Osinger, but

2022 Overbroad Injunctions 189

But in any event, for our purposes we need not resolve whether

the Osinger view or the Relerford view is right as to criminal punish-

ments for specific past speech designed to cause substantial emotional

distress. None of those cases offers support to categorical injunc-

tions against all future speech about the plaintiff; to quote the Ohio

Supreme Court in Bey v. Rasawehr,

Even if past speech that an offender [engaged in] . . . could be

considered speech that was integral to the criminal conduct of

menacing by stalking, we do not believe that this principle may

be applied categorically to future speech—that is by its nature

uncertain and unknowable—directed to others.

Because of the uncertainty inherent in evaluating future speech

that has yet to be expressed, the record here cannot justify a

content–based prior restraint on speech when there has been no

valid judicial determination that such speech will be integral to

criminal conduct, defamatory, or otherwise subject to lawful

regulation based on its content.

199

C. “Harassment is not protected speech”

A few courts have upheld broad injunctions on the grounds that

“harassment is not protected speech.” This has been especially

common in California, under the theory that “speech that consti-

didn’t resolve it. See id. at 240–42. A dissenting judge would have followed the A.J.B.

approach. Id. at 246 (Beckwith, J., dissenting).

199. 161 N.E.3d 529, 542 (Ohio 2020); see also Buchanan v. Crisler, 922 N.W.2d 886,

901–02 (Mich. Ct. App. 2018) (explaining that “to enjoin an individual from posting a

message in violation of MCL 750.411s,” a criminal harassment statute, “there must

first be a finding that a prior posting violates that statute,” and “the trial court should

then consider the nature of the postings that will be restricted to ensure that constitu-

tionally protected speech will not be inhibited by enjoining an individual’s online

postings”).

190 Harvard Journal of Law & Public Policy Vol. 45

tutes ‘harassment’ within the meaning of section 527.6 [of the Cali-

fornia Code of Civil Procedure] is not constitutionally protected,

and the victim of the harassment may obtain injunctive relief.”

200

Like many broad assertions, this one originated in a case where it

made sense—that case involved “[v]iolence and threats of vio-

lence,”

201

and such conduct and speech is indeed constitutionally

unprotected.

202

Some other courts have likewise asserted that “free

speech does not include the right to cause substantial emotional

distress by harassment or intimidation,” specifically in the context

of unprotected true threats or unwanted speech to a person.

203

But the application of the assertion grew, as these things do. By

its terms, § 527.6 allows injunctions not just based on “violence” or

“a credible threat of violence,” but also

• “a knowing and willful course of conduct directed at a

specific person that seriously alarms, annoys, or har-

asses the person,”

• “that serves no legitimate purpose,”

• “which would cause a reasonable person to suffer sub-

stantial emotional distress,” and

• which “actually cause[s] substantial emotional distress

to the petitioner.”

204

And later cases have read this provision to cover nonthreatening

speech about a person, for instance,

200. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.,

129 Cal. App. 4th 1228, 1250 (Ct. App. 2005); see also Guiffrida v. Glick, 2017 WL

2439511, at *2 (Mont. 2017).

201. Huntingdon, 129 Cal. App. at 1250.

202. See, e.g., Virginia v. Black, 538 U.S. 343 (2003).

203. See Purifoy v. Mafa, 556 S.W.3d 170, 190, 192 (Tenn. Ct. App. 2017) (citation

omitted); State v. Cooney, 894 P.2d 303, 307 (Mont. 1995); State v. Goldberg, No. M2017–

02215–CCA–R3–CD, 2019 WL 1304109 (Tenn. Ct. Crim. App. Mar. 20, 2019); Erickson

v. Earley, 878 N.W.2d 631, 635 (S.D. 2016); Bd. of Dirs. for Glastonbury Landowners

Ass’n, Inc. v. O’Connell, 396 Mont. 548 (2019); see also State v. Nye, 943 P.2d 96, 101

(Mont. 1997) (making such a statement as to speech posted on others’ property without

their permission).

204. C

ODE

ROC

. § 527.6.

2022 Overbroad Injunctions 191

• a woman’s emails to the Marine Corps making various

complaints about her neighbor, a marine;

205

• a man’s complaints to the police department about the

alleged behavior of his neighbor, a police officer;

206

• a man’s “statement on his blog suggesting [another

man] committed sexual assault”;

207

• a man’s posting any “photographs, videos, or infor-

mation about [a friend whom he had earlier pursued ro-

mantically] to any internet site”;

208

• a man’s engaging in “social media harassment with

family names” of a fellow church member’s family—

which apparently seemed to refer to any social media

commentary (or at least critical commentary) about the

family.

209

But, in the words of then–Judge Alito, “There is no categorical

‘harassment exception’ to the First Amendment’s free speech

clause.”

210

The Ninth Circuit, the New Jersey Supreme Court, and

the Michigan and Washington Courts of Appeals have adopted the

205. Parnell v. Shih, No. D074805, 2020 WL 1451931, at *5 (Cal. Ct. App. Mar. 25,

2020).

206. Hunley v. Hardin, No. B210918, 2010 WL 297759, at *4 (Cal. Ct. App. Jan. 27,

2010) (upholding the injunction based in part on findings that defendant had “made

false complaints designed to damage [plaintiff’s] professional career,” but the injunc-

tion barred all future complaints, absent court permission, and not just false com-

plaints).

207. Altinawi v. Salman, No. B284071, 2018 WL 5920276, at *6 n.8 (Cal. Ct. App. Nov.

13, 2018) (describing trial court’s conclusion, but not reaching its validity on appeal

because defendant had not appealed it).

208. Phillips v. Campbell, 206 Cal. Rptr. 3d 492, 500 (Ct. App. 2016).

209. Burrett v. Rogers, No. G047412, 2014 WL 411240, at *2 (Cal. Ct. App. Feb. 4,

2014).

210. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001); see also DeJohn

v. Temple Univ., 537 F.3d 301, 316 (3d Cir. 2008).

192 Harvard Journal of Law & Public Policy Vol. 45

same view, quoting Justice Alito’s statement.

211

None of the Su-

preme Court’s lists of First Amendment exceptions have included

a harassment exception.

212

Indeed, as one California decision noted,

harassment under California law is not protected speech “only be-

cause the definition of harassment carves out constitutionally pro-

tected activity”:

213

Thus, even if the defendant’s conduct meets the statutory

definition of harassment in every other way—i.e., it evidences a

continuity of purpose, it is directed at a specific person, it causes

the plaintiff to suffer substantial emotional distress, and it would

cause a reasonable person to suffer substantial emotional

distress—we still must determine whether it is constitutionally

protected.

214

As I noted above, some alleged harassment might indeed be con-

stitutionally unprotected: for instance, true threats of criminal con-

duct, which are criminalized as “harassment” in many states.

215

Likewise, traditional “telephone harassment” and its modern ana-

logs—again, unwanted speech said to a person, rather than publicly

accessible speech about a person

216

—are likely constitutionally un-

protected under the principle that “no one has a right to press even

211. Catlett v. Teel, 477 P.3d 50, 59 (Wash. Ct. App. 2020); TM v. MZ, 926 N.W.2d

900, 909 (Mich. Ct. App. 2018); State v. Burkert, 174 A.3d 987, 1000 (N.J. 2017); Rodri-

guez v. Maricopa Cty. Cmty. Coll. Dist., 605 F.3d 703, 708 (9th Cir. 2010); see also Falossi

v. Koenig, No. E048400, 2010 WL 4380112, at *13 (Cal. Ct. App. Nov. 5, 2010).

212. See, e.g., United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality op.); United

States v. Stevens, 559 U.S. 460, 462 (2010); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).

213. Falossi v. Koenig, No. E048400, 2010 WL 4380112, at *13 (Cal. Ct. App. Nov. 5,

2010).

214. Id.

215. See, e.g., I

DAHO

ODE

. § 18–7902(c); N

TAT

§ 200.571(1)(a)(1)–(3). State v. D.R.C., 467 P.3d 994 (Wash. Ct. App. 2020), is thus correct

when it says, “When it comes to the crime of harassment, speech is not protected if it

constitutes a true threat, as opposed to mere bluster or hyperbole.” Id. at 998.

216. See supra note 114 and accompanying text for some discussion of borderline

cases, such as “@” references on Twitter.

2022 Overbroad Injunctions 193

‘good’ ideas on an unwilling recipient.”

217

(That latter line is from a

case that upheld a ban on unwanted mailings to a person’s home.)

But all the injunctions we are discussing here go far beyond that.

D. Restrictions based on past speech or conduct

Most injunctions against speech follow some past improper

speech by the defendant—for instance, some past libels. The logic

seems to be that such defendants have proved themselves to be ir-

rational or malicious, and the only way to prevent similar misbe-

havior is through a categorical ban. At least one appellate case, Best

v. Marino,

218

makes that explicit:

The state has broad power to limit a person’s liberty interests

based on that person’s prior [criminal] conduct . . . . The rationale

underlying such statutes [which mandate imprisonment, loss of

the right to vote, loss of the right to keep and bear arms, or

registration of sex offenders] is that the public interest is served

by limiting a convicted felon’s ability to engage in certain

activity—even though that limitation burdens the exercise of the

person’s inherent rights. [Footnote: Although Respondent was

not convicted of “stalking,” we conclude that the district court’s

finding [of stalking in a civil case] is analogous to a conviction for

the purposes of this opinion.]

Orders of protection are essentially justified by the same rationale.

The purpose of an order of protection is to prevent future harm to

a protected party by a restrained party. To achieve this result, it is

constitutionally permissible to limit a restrained party’s ability to

engage in certain activity—including the exercise of his or her

right to free speech.

217. Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728, 730 (1970); see McCurdy v. Maine,

No. 2:19–cv–00511, 2020 WL 1286206, at *8 (D. Me. Mar. 18, 2020) (approving of state

court’s view that “harassment is not protected under the First Amendment” on the

grounds that the state court order was limited to unwanted speech to a person), recom-

mended decision affirmed, id. (May 19, 2020).

218. 404 P.3d 450 (N.M. Ct. App. 2017).

194 Harvard Journal of Law & Public Policy Vol. 45

The Order of Protection limited Respondent’s right to speak and

publish freely only inasmuch as it restrained her from (1) directly

contacting Petitioner, and (2) causing Petitioner to suffer severe

emotional distress [even in the absence of direct contact]. Placing

such limitations on Respondent—as the restrained party under

the Order of Protection—is not an unconstitutional limitation on

her First Amendment rights.

219

This, though, is inconsistent with the Supreme Court’s First

Amendment precedents. Indeed, Near v. Minnesota struck down a

statute that allowed a court to enjoin future distribution of “a mali-

cious, scandalous and defamatory newspaper,” so long as the court

found that the defendant had regularly published such a newspa-

per in the past.

220

Near’s past misconduct couldn’t justify such an

injunction, the Court held, even though the state had alleged that

Near had published nine “malicious, scandalous and defamatory”

editions.

221

Likewise, Packingham v. North Carolina made clear that, whatever

rights convicted sex offenders may lose, once they are released from

prison and probation, they retain full First Amendment rights.

222

(Repeated frivolous litigation can indeed lead to limits on future

lawsuits,

223

but the filing of a lawsuit invokes the legal system in a

way that imposes legal burdens on the court system and the de-

fendant.

224

A vexatious litigant designation only keeps the court

system from being used to inflict such burdens, and doesn’t limit

the litigant’s out – of–court speech.)

219. Id. at 458–59.

220. 283 U.S. 697, 701 (1931).

221. Id. at 703.

222. 137 S. Ct. 1730 (2017).

223. See, e.g., C

ODE

ROC

. §§ 391.1, 391.3, 391.7; T

RAC

EMEDIES

ODE

§§ 11.001–.101.

224. See, e.g., Tokerud v. Capitolbank Sacramento, 38 Cal. App. 4th 775, 779 (1995)

(upholding vexatious litigant finding based on plaintiff’s “repeatedly fil[ing] baseless

actions” because such actions are “a burden on the target of the litigation and the judi-

cial system”).

2022 Overbroad Injunctions 195

Again, the Ohio Supreme Court’s analysis in Bey v. Rasawehr is

correct:

Because of the uncertainty inherent in evaluating future speech

that has yet to be expressed, the record here cannot justify a

content–based prior restraint on speech when there has been no

valid judicial determination that such speech will be integral to

criminal conduct, defamatory, or otherwise subject to lawful

regulation based on its content.

When it comes to speech, the application of a criminal law should

generally occur after the contested speech takes place, not before

it is even uttered. As observed by the United States Supreme

Court in Carroll v. President & Commissioners of Princess Anne,

“Ordinarily, the State’s constitutionally permissible interests are

adequately served by criminal penalties imposed after freedom to

speak has been so grossly abused that its immunity is breached.

The impact and consequences of subsequent punishment for such

abuse are materially different from those of prior restraint. Prior

restraint upon speech suppresses the precise freedom which the

First Amendment sought to protect against abridgement.”

225

To be sure, a criminal conviction does reduce the defendants’ free

speech rights while they are imprisoned, and while they are out on

probation. In particular, restrictions on probationers’ speech about

a crime victim have sometimes been upheld, on the theory that they

“encourag[e] the defendant’s acceptance of responsibility for the

crime and protect[] the victim, as a member of the public, from fur-

ther harm, whether emotional, physical, or financial.”

226

But those are restrictions that follow a criminal trial, which offers

many important procedural protections:

225. 161 N.E.3d 529, 542 (Ohio 2020).

226. See, e.g., Commonwealth v. Pereira, 99 N.E.3d 835, 842 & n.10 (Mass. App. Ct.

2018).

196 Harvard Journal of Law & Public Policy Vol. 45

1. Defendants can’t be sentenced to prison or even to pro-

bation unless they can either afford a lawyer or are of-

fered a court–appointed defense lawyer.

227

2. A criminal sentence can only be imposed based on proof

of guilt beyond a reasonable doubt.

228

3. For all crimes where the maximum sentence is over six

months (whether or not a sentence that long is im-

posed), the defendant is entitled to a trial by jury.

229

4. In nearly all jurisdictions, the criminal proceeding can-

not be authorized unless the prosecutor concludes that

a prosecution is merited.

230

A civil restraining order, based on a judge’s finding of “stalking”

or libel, lacks all these protections.

231

Most significantly, such orders

are often entered when the defendant lacks a lawyer, and there is

therefore no “meaningful adversarial testing” of the defendant’s

contentions.

232

Whatever merit speech–restrictive probation condi-

tions might have, they can’t justify similar conditions in civil cases.

And the cases discussed in Part C reaffirm that: Courts have indeed

generally stressed that even a finding at trial that certain speech is

libelous only justifies restrictions against repeating that particular

speech.

E. Private concern

Some intermediate appellate courts have upheld injunctions on

the grounds that they were focused on speech on matters of purely

227. Alabama v. Shelton, 535 U.S. 654, 667, 674 (2002).

228. In re Winship, 397 U.S. 358 (1970).

229. Lewis v. United States, 518 U.S. 322 (1996).

230. John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecu-

tors, 47 A

. 511, 529 & nn.71–72 (1994) (discussing this general rule and some

rare exceptions).

231. In some cases, an overbroad injunction may be issued following a jury finding

of guilt, so protection 3 in the above list would be present; but the others would still be

absent.

232. Shelton, 535 U.S. at 667 (cleaned up).

2022 Overbroad Injunctions 197

“private concern,” and that such speech is less constitutionally pro-

tected than speech on matters of public concern.

233

I think this is

generally a mistake.

To begin with, let’s distinguish two possible senses of “private”

when it comes to speech, especially speech that is said to be harass-

ment:

234

1. Speech that is seen as intruding on the subject’s privacy.

2. Speech that is seen as being about matters that aren’t of

public importance, and are therefore seen as less constitu-

tionally valuable.

The “private concern” argument in favor of such injunctions

emerged as to matters that intruded on the subject’s privacy. The

earliest such cases involved unwanted speech sent to an unwilling

listener, for instance by email, phone, or mail.

235

Such speech may

indeed be more regulable, because it is likely only to offend, and

not to persuade or enlighten.

236

But beyond being less valuable, the

speech is also generally seen as an intrusion on the listeners’ rights

233. See Buchanan v. Crisler, 922 N.W.2d 886, 901–02 (Mich. Ct. App. 2018); Neptune

v. Lanoue, 178 So. 3d 520, 523 (Fla. Ct. App. 2015); Guiffrida v. Glick, 403 P.3d 1245

(Mont. 2017).

234. There are other possible senses, but these are the ones I want to focus on here.

235. The origin of the California “private concern” orders (and the earliest such case

I found in any state) is Brekke v. Wills, 23 Cal. Rptr. 3d 609, 616–17 (Ct. App. 2005), which

involved a letter addressed by a 16–year–old boy to his 15–year–old girlfriend’s mother;

while defendant delivered it to his girlfriend, he “intended that plaintiff would read

and be annoyed by [it].” Id. at 618. See also State v. Nguyen, 450 P.3d 630, 640 (Wash.

Ct. App. 2019) (upholding stalking conviction based in part on the theory that the stat-

ute targets speech on matters of purely private concern; the speech in that case con-

sisted of threats and statements made directly to the victim); Wagner v. State, 539

S.W.3d 298, 310–11 (Tex. Crim. App. 2018) (likewise); Edwards v. Rose, No. C086490,

2019 WL 4051878, at *3 (Cal. Ct. App. Aug. 28, 2019) (citing Brekke v. Wills as to private

matters, but using it to uphold injunction limited to speech to plaintiff); Scott v. Steiner,

No. B258400, 2015 WL 9311734 (Cal. Ct. App. Dec. 22, 2015) (likewise); Moore v. Fox,

No. B233657, 2013 WL 953995, at *15 (Cal. Ct. App. Mar. 13, 2013) (likewise); Mitchell

v. Mitchell, No. A131632, 2012 WL 2510051 (Cal. Ct. App. June 28, 2012) (likewise).

236. See Volokh, One–to–One Speech vs. One–to–Many Speech, Criminal Harassment Laws,

and “Cyberstalking”, supra note 13, at 743.

198 Harvard Journal of Law & Public Policy Vol. 45

“to be let alone” in their own homes or at least their own commu-

nications devices and accounts.

237

Following those cases, the California Court of Appeal upheld an

injunction against distributing information improperly down-

loaded from petitioner’s cell phone, and that case (Evilsizor) has of-

ten been cited since.

238

Such publication of illegally intercepted ma-

terial is one area where the Supreme Court has indeed looked to

whether the material is on matters of public concern (see the dis-

cussion of Bartnicki v. Vopper below). And such publication impli-

cates the subject’s right of privacy in personal communications.

The “private concern” rationale has also been applied to broader

restrictions on information that might loosely be seen as covered by

the disclosure of private facts tort—embarrassing information

(such as the details of a divorce

239

) or information about a person’s

location or contact information (such as home addresses

240

and per-

sonal phone numbers

241

). I discuss elsewhere injunctions that gen-

uinely do focus on such highly personal information.

242

237. See, e.g., Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728, 736 (1970).

238. In re Marriage of Evilsizor & Sweeney, 189 Cal. Rptr. 3d 1, 11 (Ct. App. 2015); see

also Littleton v. Grover, 2019 WL 1150759, at *2 (Wash. Ct. App. Mar. 12, 2019) (involv-

ing communication of private emails); In re Marriage of Nadkarni, 93 Cal. Rptr. 3d 723,

734 (Ct. App. 2009) (involving similar facts to Evilsizor, but without a First Amendment

defense).

239. Wedding v. Harmon, 492 S.W.3d 150, 153, 155 (Ky. Ct. App. 2016) (concerning

“private email communications between themselves” and “comments regarding the

interaction of the parties, the communication between the parties, the details of the par-

ties’ divorce, or any arrangements to be made through the parties”); see also Lewis v.

Rehkow, No. 1 CA–CV 19–0075 FC, 2020 WL 950215, *2 (Ariz. Ct. App. Feb. 27, 2020)

(discussing, without a First Amendment analysis, a December 2006 order barring par-

ties from publicly discussing their divorce case).

240. Santsche v. Hopkins, No. A154559, 2019 WL 1353295, at *6 (Cal. Ct. App. Mar.

26, 2019).

241. Westbrooke Condo. Ass’n v. Pittel, No. A14–0198, 2015 WL 133874, at *2 (Minn.

Ct. App. Jan. 12, 2015); Polinsky v. Bolton, No. A16–1544, 2017 WL 2224391, at *2 (Minn.

Ct. App. May 22, 2017) (concerning “addresses, telephone numbers, photographs or

any other form of information by which a reader may contact, identify or locate”).

242. See Eugene Volokh, Injunctions Against Disclosure of Private Facts (in progress).

2022 Overbroad Injunctions 199

But since Evilsizor, the “private concern” rationale has also been

applied to cases where the speech isn’t generally seen as an inva-

sion of privacy, except in the loosest sense that all unwanted speech

about someone might be seen as qualifying. Some injunctions, for

instance, forbid

• any references to plaintiff “under an identity or auspices

other than [defendant’s] true name,”

243

• speech accusing plaintiffs of committing crimes,

244

• any “disparaging comments” about plaintiffs,

245

and

• all speech on social media about plaintiffs.

246

The rationale there, it seems to me, is simply that speech on mat-

ters of private concern is not valuable enough to be protected.

247

And I think this rationale is mistaken.

To begin with, speech on matters far removed from politics, reli-

gion, science, art, or other big topics remains covered by the First

Amendment:

Most of what we say to one another lacks “religious, political,

scientific, educational, journalistic, historical, or artistic value” (let

alone serious value), but it is still sheltered from government

regulation. Even “‘[w]holly neutral futilities . . . come under the

243. Polinsky, 2017 WL 2224391, at *2.

244. Westbrooke Condo. Ass’n, 2015 WL 133874, at *2–*3 (upholding a broad order in

part because it was based on defendant’s having posted claims “that the [plaintiff] con-

dominium association was run by criminals and was engaged in criminal activity”);

Guiffrida v. Glick, 2017 MT 136N, 388 Mont. 556, ¶¶ 2, 6 (2017) (likewise, as to claims

that “accused [plaintiff] of murder”).

245. Westbrooke Condo. Ass’n, 2015 WL 133874, at *1.

246. Narian v. Sanducci, No. B286152, 2018 WL 5919462, at *1 (Cal. Ct. App. Nov. 13,

2018); SLA v. SZ, No. 349341, 2020 WL 3022755, at *7–*8 (Mich. Ct. App. June 4, 2020)

(describing order as banning all “posting [of] a message through the use of any medium

of communication, including the internet or a computer or any electronic medium, pur-

suant to MCL 750.411s,” but presumably implicitly limited to posting material about

the plaintiffs).

247. See, e.g., Buchanan v. Crisler, 922 N.W.2d 886, 901 (Mich. Ct. App. 2018); Parisi

v. Mazzaferro, 210 Cal. Rptr. 3d 574, 583 (Ct. App. 2016), disapproved of on other grounds

by Conservatorship of O.B., 470 P.3d 41 (Cal. 2020).

200 Harvard Journal of Law & Public Policy Vol. 45

protection of free speech as fully as do Keats’ poems or Donne’s

sermons.’”

248

And that is particularly true of speech about people who are im-

portant to our private lives. When we talk to our friends about our

lives, we also talk about those with whom we have shared those

lives. Telling a woman, for instance, that she can’t mention her ex–

boyfriend (or even just that she can’t criticize him) on her Facebook

page keeps her from explaining her own life story to her friends.

Why is she single again? Why is she upset? Why is she hesitant

about future relationships?

People often can’t answer such questions honestly, and in a way

that their friends recognize as honest, without talking about their

exes. Compare, for instance, Bonome v. Kaysen,

249

where a woman’s

published book that discussed the sexual details of a past relation-

ship was seen as being enough on a matter of public concern to de-

feat a disclosure of private facts lawsuit.

250

Explaining how one

feels, and who made one feel that way, is an important facet of self–

expression, whether in a memoir or on a blog post:

[I]f [a writer] wishes to tell what she described as “the ongoing

story of my life” by announcing to the world that “this is what I

did,” or “this is what happened to me,” it should be her right to

do so. It is disturbing and constitutionally suspect to give anyone,

including the government or her ex–boyfriend empowered by the

government, censorship power over [such speech].

251

248. United States v. Stevens, 559 U.S. 460, 479 (2010) (citations omitted).

249. No. 032767, 2004 WL 1194731 (Mass. Super. Ct. 2004).

250. The lover’s name wasn’t mentioned in the book, but he plausibly alleged that he

could be easily identified by those who knew the couple. Id. at *2; see also Anonsen v.

Donahue, 857 S.W.2d 700 (Tex. Ct. App. 1993); Campbell v. Seabury Press, 614 F.2d 395

(5th Cir. 1980).

251. Sonja R. West, The Story of Us: Resolving the Face–Off Between Autobiographical

Speech and Information Privacy, 67 W

ASH

. 589, 594 (2010); see also Sonja R.

West, The Story of Me: The Underprotection of Autobiographical Speech, 84 W

ASH

905, 907–11 (2006).

2022 Overbroad Injunctions 201

To be sure, the Supreme Court has at times upheld certain kinds

of restrictions on the grounds that they were limited to speech on

matters of private concern. But the Court’s reasoning in those cases

was deliberately narrow.

1. In Connick v. Myers,

252

the Court first expressly set forth the pub-

lic concern/private concern distinction, in limiting First Amend-

ment claims brought by government employees who had been fired

for their speech.

253

But the Court stressed that this stemmed from

the government’s role as employer, which was deciding only

whether to continue employing an employee.

254

Because “govern-

ment offices could not function if every employment decision be-

came a constitutional matter,” “[w]hen employee expression can-

not be fairly considered as relating to any matter of political, social,

or other concern to the community, government officials should en-

joy wide latitude in managing their offices, without intrusive over-

sight by the judiciary in the name of the First Amendment.”

255

Indeed, the Court in Connick stressed that speech on matters of

private concern remained protected against the government as sov-

ereign:

We do not suggest, however, that Myers’ speech, even if not

touching upon a matter of public concern, is totally beyond the

protection of the First Amendment. “[T]he First Amendment does

not protect speech and assembly only to the extent it can be

characterized as political. ‘Great secular causes, with smaller ones,

are guarded.’” We in no sense suggest that speech on private

matters falls into one of the narrow and well–defined classes of

expression which carries so little social value, such as obscenity,

252. 461 U.S. 138 (1983).

253. Id. at 143.

254. Id.

255. Id. at 143, 147.

202 Harvard Journal of Law & Public Policy Vol. 45

that the State can prohibit and punish such expression by all

persons in its jurisdiction.

256

Connick thus concludes that speech on matters of private concern

is protected against injunctions, criminal punishment, and the like

(though not against firing from a government job, the matter in

Connick itself).

2. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,

257

the Court

held that false and defamatory statements of fact on matters of pri-

vate concern could lead to presumed and punitive damages in libel

cases, even without the showing of “actual malice” generally re-

quired for statements on matters of public concern.

258

As in Connick,

the Court recognized that “such speech is not totally unprotected

256. Id. at 147 (citation omitted). See also Garcia v. State Univ. of N.Y. Health Scis.

Ctr., 280 F.3d 98, 106 (2d Cir. 2001) (“[T]he public concern doctrine does not apply to

student speech in the university setting.”); Yano v. City Colls. of Chi., No. 08 CV 4492,

2013 WL 3791616, at *8 (N.D. Ill. July 19, 2013) (same), aff’d sub nom. Yano v. El–

Maazawi, 651 F. App’x 543 (7th Cir. 2016); Deegan v. Moore, No. 7:16–CV–00260, 2017

WL 1194718, at *5 (W.D. Va. Mar. 30, 2017) (same); Guse v. Univ. of S.D., No. 08–4119,

2011 WL 1256727, at *16 (D.S.D. Mar. 30, 2011) (same); Qvyjt v. Lin, 932 F. Supp. 1100,

1108–09 (N.D. Ill. 1996) (same); Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 766 (9th

Cir. 2006) (likewise for high school student speech); Jamshidnejad v. Cent. Curry Sch.

Dist., 108 P.3d 671, 674–75 (Or. Ct. App. 2005) (likewise for junior high school student

speech); Bridges v. Gilbert, 557 F.3d 541, 551 (7th Cir. 2009) (likewise for prisoner

speech); Startzell v. City of Phila., No. CIV.A.05–05287, 2007 WL 172400, at *5 n.6 (E.D.

Pa. Jan. 18, 2007) (likewise for speech on government property), aff’d, 533 F.3d 183 (3d

Cir. 2008); Van Dyke v. Barnes, No. 13–CV–5971, 2015 WL 148977, at *5–*6 (N.D. Ill. Jan.

12, 2015) (likewise when government is accused of retaliating against foster parents);

Eichenlaub v. Twp. of Ind., 385 F.3d 274, 284 (3d Cir. 2004) (likewise when government

is accused of retaliating against speakers in zoning disputes); Nolan v. Vill. of Dolton,

No. 10 CV 7357, 2011 WL 1548343, at *2 (N.D. Ill. Apr. 21, 2011) (likewise when govern-

ment is accused of filing retaliatory criminal charges). The one case I have found that

applies Connick to government action in programs outside government employment,

Landstrom v. Illinois Dep’t of Child. & Fam. Servs., 892 F.2d 670, 679 (7th Cir. 1990), ap-

pears to have been abrogated by Bridges. See Van Dyke, 2015 WL 148977, *5–*6; Nolan,

2011 WL 1548343, at *2.

257. 472 U.S. 749 (1985).

258. Id. at 759–60 (lead opin.).

2022 Overbroad Injunctions 203

by the First Amendment,” though it concluded that “its protections

are less stringent.”

259

But Dun & Bradstreet was dealing solely with liability for false and

defamatory statements of fact—statements that the Court had al-

ready held lack “constitutional value” (whether they are “inten-

tional lie[s]” or “careless error[s]”).

260

The question was just how

much protection such valueless statements should get to prevent

an undue chilling effect on true statements.

261

The Court’s holding

thus doesn’t justify outright prohibitions on true statements (or

opinions) on matters of private concern—categories of speech that

the Court has never labeled as having “no constitutional value.”

3. In Bartnicki v. Vopper,

262

the Court held that third parties that

receive copies of illegally intercepted cell phone calls may publish

them, without fear of liability, if the calls contain “truthful infor-

mation of public concern.”

263

But the Court said that it “need not

decide whether” liability could be imposed for “disclosures of trade

secrets or domestic gossip or other information of purely private

concern” that stem from illegally intercepted calls.

264

4. In Snyder v. Phelps, the Court held that expressions of opinion

on matters of public concern generally cannot lead to liability for

intentional infliction of emotional distress, and concluded that the

question “turns largely on whether that speech is of public or pri-

vate concern.”

265

“[W]here matters of purely private significance

are at issue,” the Court concluded, “First Amendment protections

are often less rigorous.”

266

This suggests that the emotional distress

tort might be applicable to “intentionally or recklessly engaged in

259. Id. at 760.

260. Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974).

261. Dun & Bradstreet, 472 U.S. at 760.

262. 532 U.S. 514 (2001).

263. Id. at 534.

264. Id. at 533.

265. 562 U.S. 443, 451 (2011).

266. Id. at 452.

204 Harvard Journal of Law & Public Policy Vol. 45

extreme and outrageous conduct [consisting of speech on matters

of private concern] that caused the plaintiff to suffer severe emo-

tional distress.”

267

But even if speech on matters of private concern is treated as a

somewhat less protected category of speech—perhaps like com-

mercial speech is a somewhat less protected category

268

—that can

only justify certain kinds of restrictions, not categorical bans. Com-

mercial speech, for instance, can be specially restricted when it’s

misleading, or when it proposes illegal transactions.

269

But it

doesn’t follow that a defendant can be entirely banned from engag-

ing in commercial speech about some particular subject.

Likewise for bans on a defendant talking about a plaintiff. Such

bans involve the government acting as sovereign, threatening jail

time (for contempt of court) when someone says certain things.

They are not limited to speech found to have “no constitutional

value,” such as true threats or false and defamatory statements of

fact. They are not limited to constrained areas such as illegally in-

tercepted conversations, or speech that a jury has found to be “out-

rageous” (a deliberately narrow zone

270

). So long as speech on mat-

ters of private concern is somewhat protected—and the Court has

assured us that it is—it cannot be restricted through such categori-

cal injunctions.

271

267. Id. at 451.

268. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985).

269. Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

270. See Snyder, 562 U.S. at 458; Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 57 (1988);

Zuger v. State, 673 N.W.2d 615, 622 (N.D. 2004).

271. Parnell v. Shih, No. D074805, 2020 WL 1451931 (Cal. Ct. App. Mar. 25, 2020), up-

held an order barring a woman from future communications about her neighbor to the

Marine Corps, the neighbor’s employer. The court concluded that such speech was on

a matter of private concern, lacked a “legitimate purpose,” and could thus be banned.

Id. at *3–*4. I think this was mistaken, but at least the order was narrow, and indeed the

Court of Appeal narrowed the order from its original version (which had banned all

communications to the Marine Corps by the defendant, not limited to communications

about plaintiff).

Likewise, Parisi v. Mazzaferro, 210 Cal. Rptr. 3d 574 (Ct. App. 2016), disapproved of as

to other matters by Conservatorship of O.B., 470 P.3d 41 (Cal. 2020), concluded that speech

2022 Overbroad Injunctions 205

Moreover, some injunctions against speech about a person ha-

ven’t been facially limited to speech on particular topics of private

concern, or even to speech on matters of private concern generally

(a test that would in any event likely be unconstitutionally vague

in an injunction). For instance, they have applied to future speech

• accusing the plaintiff of criminal misconduct, which

“generally [is] speech on a matter of public concern”;

272

• accusing government authorities of not properly inves-

tigating the plaintiff’s alleged misconduct, which defi-

nitely would be speech on matters of public concern;

273

• discussing a broad social problem and giving the plain-

tiff’s alleged behavior as an example, which likewise

would be speech on matters of public concern;

274

• accusing a businessperson or a professional of provid-

ing poor service, which may likewise be speech on mat-

ters of public concern;

275

on matters of private concern could sometimes be enjoined, but held that an injunction

against such speech had to be suitably narrow: The injunction could not ban all speech

about plaintiff that “could be interpreted as a pattern of conduct with the intent to har-

ass,” but had to be limited to restricting the “repetition” of “specific defamatory state-

ments made by [defendant] in his prior correspondence”—i.e., speech that already fit

within the defamation exception to the First Amendment. Id. at 586. And the Parisi court

also invalidated a provision of the injunction that required prior court approval before

defendant could write anything about one of the plaintiffs “to any government

agency”; the defendant, the court ruled, “may not be constitutionally restrained from

true petitioning activity to government officials.” Id.

272. Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284, 1292 (9th Cir. 2014); see also

Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1298 (11th Cir. 2008); Boule v.

Hutton, 328 F.3d 84, 91 (2d Cir. 2003).

273. For examples of such speech that was indeed enjoined, see Bey v. Rasawehr, 161

N.E.3d 529 (Ohio 2020); Stark v. Stark, No. W201900650COAR3CV, 2020 WL 507644, at

*1 (Tenn. Ct. App. Jan. 31, 2020).

274. See Florida Star v. B.J.F., 491 U.S. 524, 536–37 (1989) (holding that an article about

a violent crime is speech on a matter of public concern, and this includes the name of

the specific person—there, the victim—mentioned in the article).

275. Gardner v. Martino, 563 F.3d 981, 989 (9th Cir. 2009); Manufactured Home

Cmtys., Inc. v. County of San Diego, 544 F.3d 959, 965 (9th Cir. 2008).

206 Harvard Journal of Law & Public Policy Vol. 45

• discussing the court order itself, and the process that led

to the court order,

276

which definitely would be speech

on matters of public concern as well.

For all the reasons given above, I think the Ohio Supreme Court

was right in expressly rejecting a “private concern” defense of an

injunction:

[O]ur role here is not to pass judgment on the . . . First

Amendment value of Rasawehr’s allegations. To the extent his

statements involve matters of both private and public concern, we

cannot discount the First Amendment protection afforded to that

expression. We most assuredly have no license to recognize some

new category of unprotected speech based on its supposed value.

Rejecting such a “free–floating test for First Amendment

coverage,” the United States Supreme Court declared in Stevens

that the First Amendment’s guarantee of free speech “does not

extend only to categories of speech that survive an ad hoc

balancing of relative social costs and benefits.” “Our decisions

* * * cannot be taken as establishing a freewheeling authority to

declare new categories of speech outside the scope of the First

Amendment.”

277

Likewise, the Vermont Supreme Court rejected the view that oth-

erwise protected speech could be punished as “abusive . . . lan-

guage” when it was on a matter of private concern:

The U.S. Supreme Court has consistently interpreted the First

Amendment to shield a broad and expansive array of speech. Of

bedrock importance is the principle that the First Amendment’s

protections extend beyond expressions “touching upon a matter

of public concern.” Connick, 461 U.S. at 147 (“The First

Amendment does not protect speech and assembly only to the

extent it can be characterized as political . . . . We in no sense

suggest that speech on private matters . . . carries so little social

value . . . that the State can prohibit and punish such expression

. . . .” . . .

276. See supra Part B.5.

277. Bey v. Rasawehr, 161 N.E.3d 529, 545–46 (Ohio 2020).

2022 Overbroad Injunctions 207

Equally fundamental is the principle that “the Constitution

protects expression . . . without regard . . . to the truth, popularity,

or social utility of the ideas and beliefs which are offered.”

NAACP v. Button, 371 U.S. 415, 444–45 (1963).

278

Similarly, in the words of the Third Circuit,

[Many] cases point to the principle that outside the employment

context the First Amendment forbids retaliation for speech even

about private matters. . . . [W]hile speech on topics of public

concern may stand on the “highest rung” on the ladder of the First

Amendment, private speech (unless obscene or fighting words or

the like) is still protected on the First Amendment ladder. The

rationale for a public/private concern distinction that applies to

public employees simply does not apply to citizens outside the

employment context. By the same token, the decisions of the

Supreme Court and of our court have not established a public

concern threshold to the protection of citizen private speech. We

decline to fashion one now.

279

278. State v. Tracy, 130 A.3d 196, 201 (Vt. 2015). The D.C. Court of Appeals has like-

wise vacated a speech–restrictive injunction on the grounds that “a communication

does not lose First Amendment protection merely because it discusses matters of pri-

vate rather than public concern.” Mashaud v. Boone, 256 A.3d 235 (D.C. Aug. 12, 2021),

review en banc granted. But it left open the possibility that an injunction might be justified

if it was focused on information of a “very personal nature.” Id.

279. Eichenlaub v. Twp. of Ind., 385 F.3d 274, 284 (3d Cir. 2004) (paragraph break

omitted) (dealing with government retaliation against citizen speech on matters of pri-

vate concern); see also McCraw v. City of Okla. City, 973 F.3d 1057 (10th Cir. 2020) (hold-

ing that even casual conversations with friends are protected by the First Amendment,

even when they are not on matters of public concern: “while speech on topics of public

concern may stand on the ‘highest rung’ on the ladder of the First Amendment, private

speech (unless obscene or fighting words or the like) is still protected on the First

Amendment ladder” (quoting Eichenlaub, 385 F.3d at 284)); Trusz v. UBS Realty Invs.,

LLC, 123 A.3d 1212, 1219 (Conn. 2015) (explaining that “workplace speech on private

matters is protected by the first amendment to the same extent that it is protected else-

where insofar that it cannot be punished or prohibited by the government acting in its

role as a lawmaker,” even though government employee speech on such matters can be

restricted “in [the government’s] role as an employer”); Falossi v. Koenig, No. E048400,

2010 WL 4380112, at *13 (Cal. Ct. App. Nov. 5, 2010) (“Falossi argues that Koenig’s

208 Harvard Journal of Law & Public Policy Vol. 45

Those cases, it seems to me, are correct in concluding that speech

is protected even when it is on matters of “private concern”; and

the lower court cases authorizing broad injunctions on a “private

concern” theory are mistaken.

F. Bad intentions

Some courts have defended the broad injunctions on the grounds

that the defendant’s speech was ill–motivated. In Bey v. Rasawehr,

for instance, the Ohio appellate court upheld an injunction, reason-

ing that Rasawehr’s speech was “for an illegitimate reason born out

of a vendetta seeking to cause mental distress.”

280

(The Ohio Su-

preme Court later reversed the injunction, without discussing Ra-

sawehr’s intentions.) Some other courts have taken a similar view

to that of the Ohio appellate court,

281

and some of the statutes that

authorize anti–harassment orders specifically turn on whether the

defendant’s past speech lacked a “legitimate purpose” or was in-

tended to “harass,” “annoy,” “inflict mental distress,” and the

like.

282

This justification for anti–speech injunctions is mistaken,

though, for several related reasons:

1. The broad injunctions discussed in this Article are not limited

to speech said with a particular motive. The judges might have felt

photography was not protected because it did not relate to any matter of public con-

cern. Recently, however, the United States Supreme Court reminded us that ‘serious

value’ is not ‘a general precondition to protecting . . . speech.’”) (citing United States v.

Stevens, 130 S. Ct. 1577, 1591 (2010)).

280. Bey v. Rasawehr, 2019–Ohio–57, 2019 WL 182418, at *8 ¶ 42 (Ohio Ct. App. 2019),

rev’d in part, 161 N.E.3d 529 (Ohio 2020).

281. See also Mashaud, 256 A.3d at 238 (vacating a similar injunction that a trial court

had justified on the grounds that the speaker “acted with a ‘vindictive motive’”).

282. I

ODE

. § 35–45–2–2 (West, Westlaw through 2020 Reg. Sess.); I

OWA

ODE

. § 708.7 (West, Westlaw through 2020 Reg. Sess.); N.J.

TAT

. A

§ 2C:33–

4 (West, Westlaw through L.2020, c. 109 & J.R. No. 2.); O

TAT

. § 166.065

(West, Westlaw through 2020 Reg. Sess.); 18

TAT

ONSOL

TAT

. § 2709

(West, Westlaw through 2020 Reg. Sess.); M

RIM

ODE

. § 3–803 (West,

Westlaw through 2020 Reg. Sess.); W

ASH

ODE

. § 9.61.260 (West, Westlaw

through 2020 Reg. Sess.); W

TATE

§ 813.125 (West, Westlaw through 2019 Act

186).

2022 Overbroad Injunctions 209

that they could predict the defendants’ future motives based on the

defendants’ past speech, but people’s intentions change.

Say, for instance, that someone has been sharply criticizing his

former lawyer; a judge concludes that the criticism was intended to

harass, and therefore forbids all future speech by the defendant

about the lawyer (or even just all “derogatory” speech). The de-

fendant might well want to criticize the injunction, out of a genuine

desire to inform the public about what he sees as an injustice. In the

process of doing this, he would need to mention the lawyer in de-

scribing how the injunction came about. But the injunction would

restrict even such mentions.

2. The motives in these cases can be difficult to disentangle. Some-

one who feels mistreated by a professional or a business might be

motivated both by hostility and a desire to warn others. Even com-

plaints about exes might stem both from a desire for revenge and a

desire to explain oneself to friends and acquaintances, or to warn

them about what one sees as the ex’s dangerous proclivities.

3. Partly because of this difficulty, judges’ inferences about a

speaker’s intentions are likely to stem from the judges’ reactions to

the speaker’s viewpoint or identity. Is the defendant a woman who

is just trying to ruin a man who left her? Or is she someone who

sincerely wants to warn her friends—including other women who

might date him in the future—about what she sees as the man’s de-

ceitfulness, abusiveness, or psychological cruelty? Or could she

have both motives, and if so, what should be the legal consequence

of that?

Is the defendant seeking revenge on a company that fired him, or

is he genuinely trying to blow the whistle on its alleged miscon-

duct? Is the defendant just trying to subtly extort a settlement from

a business (assume there is no concrete proof of extortion, but just

a pattern of criticism that could be used for that purpose), or is he

honestly trying to alert other consumers?

It’s human nature to assume the best intentions of people whose

views, experiences, or identities are like yours, and the worst of

210 Harvard Journal of Law & Public Policy Vol. 45

people who are different from you. That danger is especially exac-

erbated if the decision is made by a single judge rather than by a

jury that contains a mix of people, who would have to justify their

views to each other. And the danger is further exacerbated when

the case involves a default judgment (as many of the libel injunc-

tions do

283

), an unrepresented litigant (as many of the libel injunc-

tion and harassment cases do

284

), and a busy judge who is trying to

get through case after case.

4. Perhaps because of all this, “under well–accepted First Amend-

ment doctrine, a speaker’s motivation is entirely irrelevant to the

question of constitutional protection.”

285

At one point, American

criminal libel law did forbid reputation–damaging speech (whether

true, false, or opinion) if it lacked “good motives” or “justifiable

ends.”

286

But the Court has expressly rejected that as to speech on

matters of public concern;

287

again, recall that the broad injunctions

discussed in this Article generally forbid all future speech about

plaintiff, whether or not the speech is on matters of public concern

or of private concern. And other courts have recognized the same

principle as to speech on matters of private concern as well.

288

Indeed, in Near v. Minnesota, the Court made clear that a speaker’s

past libelous speech cannot justify broad restrictions on nonlibelous

speech in the future, even when the injunction is limited to speech

said without “good motives.”

289

Hustler Magazine, Inc. v. Falwell

283. See, e.g., Baker v. Kuritzky, 95 F. Supp. 3d 52, 59 (D. Mass. 2015).

284. See, e.g., Capital Resorts Group, Inc. v. Emmons, No. 3:15–CV–368–PLR–HBG,

at 6 ¶ 2 (E.D. Tenn. Mar. 4, 2016).

285. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007) (opinion of Roberts, C.J.,

joined by Alito, J.) (alteration and internal quotation marks omitted); id. at 492 (Scalia,

J., concurring in part and in the judgment, joined by Kennedy and Thomas, JJ.) (taking

the same view); see Volokh, Freedom of Speech and Bad Purposes, supra note 184.

286. Volokh, Freedom of Speech and Bad Purposes, supra note 184, at 1390. Speech on

matters of public concern was evaluated under the same test. See, e.g., Beauharnais v.

Illinois, 343 U.S. 250, 265 (1952).

287. Garrison v. Louisiana, 379 U.S. 64 (1964).

288. State v. Turner, 864 N.W.2d 204, 209 (Minn. Ct. App. 2015).

289. 283 U.S. 697, 713 (1931).

2022 Overbroad Injunctions 211

similarly upheld Hustler’s right to criticize Jerry Falwell in a harsh,

vulgar, and deeply emotionally distressing way,

290

even though the

attack there stemmed from Larry Flynt’s personal hostility towards

Falwell.

291

Likewise, in Tory v. Cochran,

292

the Court considered a case chal-

lenging the constitutionality of an injunction barring a disgruntled

litigant from picketing outside his former lawyer’s office “holding

up signs containing various insults and obscenities” (apparently as

a means of pressuring the lawyer to pay the litigant money).

293

The

Court ultimately vacated the injunction on narrow grounds: The

lawyer (the famous Johnny Cochran) had died while the case was

pending, so “the grounds for the injunction [were] much dimin-

ished, if they have not disappeared altogether.”

294

But the Court

agreed to hear the case despite the defendant’s likely bad intentions

or his “vendetta” against the lawyer; it vacated the injunction rather

than just dismissing the case as improvidently granted; and it never

suggested that Tory’s bad intentions would strip the speech of First

Amendment protection.

G. Too much?

Some of the injunctions might be motivated by the sense that the

speaker’s speech is just too frequent. Saying something once or a

few times is fine, but more than that is too distressing for the victim,

and no longer valuable to public debate—after someone repeats his

criticisms too often, “enough is enough,” and “at some point . . . it

. . . becomes a personal vendetta to just upset the subject.”

295

290. 485 U.S. 46, 57 (1988).

291. See R

ODNEY

MOLLA

ERRY

ALWELL V

ARRY

LYNT

IRST

MENDMENT

RIAL

59–60 (1988).

292. 544 U.S. 734 (2005).

293. Id. at 735.

294. Id. at 738.

295. Oral Arg., Keyes v. Biro, No. B271768, at 4:00, 9:45 (Cal. Ct. App. Oct. 24, 2017)

(Rothschild, J.). The court ultimately held that the injunction should be read narrowly,

as limited to unwanted speech to the plaintiff—a doctor who the defendant thought

committed malpractice—and not public speech about the plaintiff.

212 Harvard Journal of Law & Public Policy Vol. 45

Libel law doesn’t focus on the frequency of libelous statements,

but harassment statutes often require “repeated” communications;

the term “harassment” itself often connotes excessive repetition.

And unwanted speech to an unwilling listener may indeed sharply

decline in value when it’s repeated, especially after the listener has

demanded that it stop: Presumably the listener has heard and re-

jected the message, and repeating it is unlikely to persuade or en-

lighten.

Yet speech to the public can’t lose its constitutional protection

simply because of its frequency. Repetition is often needed to reach

new listeners, to get the attention of listeners who might have ig-

nored the statements before, or to offer new information even to

listeners who have heard the past criticism.

This is why political and ideological advertisers don’t assume

that one ad run once is enough (whether that ad praises a candidate

or a cause, or criticizes the other side). It’s also why labor picketers

and leafletters generally show up repeatedly, though this costs a

great deal in time and effort. Newspapers sometimes satisfy them-

selves with one story about a person, but newspapers have to worry

about turning off some paying readers who might be annoyed by

what they see as repetition (even when the repetition successfully

reaches other readers). Even so, newspapers may engage in a drum-

beat of criticism, if they think it’s warranted.

Unsurprisingly, the Supreme Court has often protected cam-

paigns of criticism and not just individual statements. The leaflets

criticizing Keefe were distributed on four days over the span of six

weeks.

296

In NAACP v. Claiborne Hardware Co., the names of black

residents who chose not to go along with the boycott were appar-

ently read in church and distributed on leaflets, so long as they

296. Keefe v. Org. for a Better Austin, 253 N.E.2d 76, 78 (Ill. App. Ct. 1969).

2022 Overbroad Injunctions 213

were not complying.

297

The speech in many picketing cases criticiz-

ing particular businesses has also been repeated.

298

Yet the Court

has never suggested that such repetition would make the speech

less protected.

IV. W

HOSE

OURTS

OING

The principles I mentioned above—that a court may not enjoin

speech that falls outside the First Amendment exceptions—are

well–established; why then do at least some trial court judges de-

part from them?

A. Speech by private individuals as less respectable than speech by

media outlets

As Part A made clear, even repeated vilification in newspapers or

by organizations cannot be enjoined. Very few, if any, courts today

would be inclined to enjoin alleged harassment or stalking—in the

form of publications, whether in print or online—by a newspaper

or by a familiar–looking, traditionally organized advocacy group.

Yet for some reason some judges are willing to enjoin such speech

by individuals. Why?

I suspect this willingness to restrain private speakers flows from

two related reasons. First, precisely because newspapers cost

money to publish, and try to make money from subscribers or ad-

vertisers, they tend to be accountable to their readers and tend to

publish what their readers want, in the style the readers want. That

a newspaper is printing something itself tends to indicate the likely

value of the speech. Even a judge who found the speech loathsome

or pointless might have thought twice about substituting his own

297. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 909 (1982).

298. See, e.g., McCullen v. Coakley, 573 U.S. 464, 493 (2014) (anti–abortion counselors

speaking outside one clinic “once a week”); Edward J. DeBartolo Corp. v. Fla. Gulf

Coast Bldg. and Const. Trades Council, 485 U.S. 568, 571 (1988) (leafletting going on

“for about three weeks”).

214 Harvard Journal of Law & Public Policy Vol. 45

views for those of editors and readers.

299

Likewise, if an established

political advocacy group thought some speech worth saying,

judges may have seen that as evidence that the speech had value to

public debate.

Second, newspaper speech can have many motives, but the most

plausible ones tend to be public–regarding. Perhaps the publisher,

editor, reporter, or columnist has a political agenda. Perhaps they

are just pandering to readers’ tastes, but even that means that they

want to entertain or inform readers about something that many

readers care about. It’s possible that newspaper writers are just try-

ing to wreak private vengeance, or are irrationally obsessed—but

that seems unlikely, especially since such motivations (at least if

transparent enough) are likely to lead to market pushback from

readers.

And the same is likely true for speech by advocacy groups, even

relatively little–known ones such as the Organization for a Better

Austin: Whatever a judge might think of their ideology, it seems

likely that the speech was indeed motivated by ideology. Even a

judge who suspects that base motives are at play (for example, that

a rich publisher is trying to get revenge against a politician or busi-

ness leader who had frustrated the publisher’s business plans)

299. Occasional cases did conclude that speech in newspapers wasn’t “newsworthy”

and thus could lead to liability for disclosure of private facts. See, e.g., Briscoe v.

Reader’s Digest, 483 P.2d 34 (Cal. 1971), overruled by Gates v. Discovery Commc’ns Inc.,

101 P.3d 552 (Cal. 2004); Diaz v. Oakland Trib., Inc., 188 Cal. Rptr. 762 (Ct. App. 1983).

But I don’t know of any recent incidents of an outright injunction against a newspaper’s

publishing anything further about a person; and I know of only one recent case that

issued a narrower but still overbroad injunction against a newspaper on libel or har-

assment grounds: Groner v. Wick Communications, Inc., No. 00126863 (La. Dist. Ct. Aug.

25, 2015), discussed at notes 76–77 and accompanying text. A few rare recent injunc-

tions against newspapers have stemmed from other theories. See, e.g., In re Emma F.,

107 A.3d 947, 952 (Conn. 2015) (discussing a trial court injunction against publishing a

court document that should have been filed under seal but wasn’t, and declining to

review the injunction because it had been vacated by the court nine days later); Las

Vegas Rev.–J. v. Eighth Jud. Dist. Ct., 412 P.3d 23 (Nev. 2018) (reversing a trial court

injunction against publishing autopsy photos).

2022 Overbroad Injunctions 215

might be reluctant to enjoin such mainstream speech based on spec-

ulation about motive.

But once individuals can easily speak, without having to per-

suade any intermediary about the worth of their speech, judges are

likely to see much more speech by libel defendants that seems

pointless and ill–motivated. Motive turns out to be critical under

many harassment or stalking statutes, which condemn speech that

is said with “the intent to annoy” or with “no legitimate pur-

pose.”

300

(I have argued that such motive is generally irrelevant to

the value of the speech, and should thus not be used to justify re-

stricting speech that has presumptively valuable content;

301

but the

statutes are premised on a different view.) Indeed, some courts

have taken the view that government employee speech motivated

by purely personal motives is to be treated as on a matter of “pri-

vate concern,” even when its content would suggest that it’s on a

matter of public concern.

302

Of course, the speakers in all these cases would likely take a dif-

ferent view of the value of their speech, and of their own motives. I

suspect that most think they really do have valuable things to say,

and that their motives are to inform the public.

300. I

ODE

. § 35–45–2–2 (West, Westlaw through 2020 Reg. Sess.); I

OWA

ODE

. § 708.7 (West, Westlaw through 2020 Reg. Sess.); N.J.

TAT

. A

§ 2C:33–

4 (West, Westlaw through L.2020, c. 109 & J.R. No. 2.); O

TAT

. § 166.065

(West, Westlaw through 2020 Reg. Sess.); 18

TAT

ONSOL

TAT

. § 2709

(West, Westlaw through 2020 Reg. Sess.); M

RIM

ODE

. § 3–803 (West,

Westlaw through 2020 Reg. Sess.); T

ENAL

ODE

. § 42.07 (West, Westlaw

through 2019 Reg. Sess.); W

ASH

ODE

. § 9.61.260 (West, Westlaw through

2020 Reg. Sess.); W

TATE

§ 813.125 (West, Westlaw through 2019 Act 186).

301. See Volokh, Freedom of Speech and Bad Purposes, supra note 184; Volokh, One–to–

One Speech vs. One–to–Many Speech, Criminal Harassment Laws, and “Cyberstalking”, supra

note 13, at 737–94.

302. See, e.g., Workman v. Jordan, 32 F.3d 475, 482–83 (10th Cir. 1994); Foley v. Univ.

of Hous. Sys., 355 F.3d 333, 341 (5th Cir. 2003); Schalk v. Gallemore, 906 F.2d 491, 495

(10th Cir. 1990).

216 Harvard Journal of Law & Public Policy Vol. 45

If I’m right, then judges just aren’t trusting individual speakers in

the newly democratized mass communications system to define

what is worth talking about, and to talk about it without being sec-

ond–guessed about their motivations. Media organizations and po-

litical organizations are given latitude to say even things that

judges may view as unfair or cruel.

303

But private speakers are often

not given such latitude—and the judges think that an injunction,

with its accompanying threat of criminal contempt punishment if it

is violated, is the necessary means for stopping such speech.

As I mentioned, I think that such a view is wrong, and that speech

that’s outside the traditional First Amendment exceptions (speech

that isn’t, for instance, libel or true threats) should remain free even

if judges think it’s worthless or ill – intentioned. But I think these

injunctions come about because judges see that everyone can speak

the way that established media and political organizations have

long spoken—and judges often don’t like it.

B. Speech by private individuals, without the money and power of

media outlets

Private individuals are also less likely to fight back in court than

are media outlets. They are less likely to appear to defend them-

selves; many of the injunctions I mention here followed default

judgments.

304

They are less likely to know the First Amendment ar-

guments to make when they do appear. They are less likely to ap-

peal an injunction.

303. For a similar argument about why courts are more likely to find actionable in-

vasion of privacy in speech of non–mainstream–media sources, see Jeffrey Toobin,

Gawker’s Demise and the Trump–Era Threat to the First Amendment, N

ORKER

(Dec. 19,

2016), https://www.newyorker.com/magazine/2016/12/19/gawkers-demise-and-the-

trump-era-threat-to-the-first-amendment [https://perma.cc/G9ZT-T7V8] (“This kind of

deference to journalistic judgment about what constitutes ‘truthful information of pub-

lic concern’ may be a vestige of a more orderly period in journalistic history. The im-

plicit trust in the news media reflected in these rulings may not extend today to the

operators of Web sites, a change that could also have ramifications for traditional news

organizations.”).

304. See Appendix.

2022 Overbroad Injunctions 217

Media outlets may also fight back in the media. A judge, espe-

cially an elected state court judge, might be especially reluctant to

issue an injunction that will likely be covered in the press, and crit-

icized by the press—both by the newspaper that’s being enjoined,

and by other media outlets that will likely take the newspaper’s

side. A judge may be less reluctant to issue an injunction against

private citizens, who will at most rant about it on their Facebook

pages.

C. Judges as flexible problem–solvers

I also suspect that many of the trial judges who entered these in-

junctions operated with a particular attitude: Our job is to solve

problems stemming from human relationships—deal with petty

personal hostility that can damage people’s lives and cause poten-

tially violent friction—and the injunction is a useful, flexible tool

for such problem–solving.

305

First Amendment doctrine sometimes views injunctions against

speech as comparable to statutory speech restrictions—to repeat

Justice Black’s formulation, “we look at the injunction as we look at

a statute, and if upon its face it abridges rights guaranteed by the

First Amendment, it should be struck down.”

306

Other times, the

doctrine views injunctions against speech as “prior restraints” that

are even more constitutionally troublesome than statutory speech

restrictions, in part because of the discretion they vest in a judge.

307

But the problem–solving attitude takes a different view, though

usually just implicitly: An injunction, the theory goes, is a sensible

approach because it can be well tailored to the particular problems

305. In a related context, cf. Mandeep Talwar, Improving the Enforcement of Restraining

Orders After Castle Rock v. Gonzales, 45 F

. 322, 330–31 (2007) (praising

judges who “act as problem–solving, proactive participants in combating domestic vi-

olence”).

306. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 581 (1971).

307. See, e.g., Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 793 (1994) (Scalia,

J., concurring in the judgment in part and dissenting in part).

218 Harvard Journal of Law & Public Policy Vol. 45

of the relationship. Of course a statute banning anyone from men-

tioning anyone else online would be unconstitutional. Of course a

statute banning anyone from disparaging anyone else would be un-

constitutional. Even a narrower statute, such as a ban on disparag-

ing one’s ex–spouse on social media, would be unconstitutional. An

injunction, though, can both focus on speech about a particular per-

son and take into account the likely harm of the speech, the likely

value of the speech, and the likely availability of narrower speech

restrictions.

For instance, say a judge is facing a defendant who seems bent on

disparaging a family member or an ex–lover or a former business

partner.

1. The judge may look at the past statements, conclude that

they are likely false and defamatory, and therefore con-

clude that future criticisms by this defendant of this

plaintiff are likely to be harmful (because they will likely

be libelous, perhaps as demonstrated by a finding that

some past statements were libelous) and valueless (be-

cause they will likely be false).

2. The judge may observe that the statements are about

purely personal grievances, and therefore conclude that

even future statements that wouldn’t be false (they

might be true, or opinions) are likewise likely to be of

modest First Amendment value (because they will al-

most certainly be speech on matters of purely private

concern).

3. The judge may conclude that the defendant is obsessed,

so restrictions on repeating only particular statements

found to be defamatory would lead the defendant to just

make up more falsehoods.

308

308. Thomas v. Wray, No. CV19WD05, at 1–2 (Ark. Cir. Ct. Benton Cty. May 24,

2018); Appellee’s Brief, Stutz Artiano Shinoff & Holtz, APC v. Larkins, No. D057190,

2011 WL 863341, at *6 (Cal. Ct. App. Jan. 25, 2011) (quoting trial transcript):

2022 Overbroad Injunctions 219

4. Or the judge may conclude that the defendant is irra-

tional, so restrictions on all false and defamatory state-

ments would be futile, because the defendant will sin-

cerely (but unreasonably) believe that those statements

aren’t false.

Justice Stevens expressed some similar thoughts, though as to

much narrower injunctions. In Madsen v. Women’s Health Center,

Inc., Justice Stevens voted to uphold an injunction setting up bubble

zones outside abortion clinics, but with language that would have

applied even more broadly:

Unlike the Court, . . . I believe that injunctive relief should be

judged by a more lenient standard than legislation. . . .

[L]egislation is imposed on an entire community, regardless of

individual culpability. By contrast, injunctions apply solely to an

individual or a limited group of individuals who, by engaging in

illegal conduct, have been judicially deprived of some liberty—

the normal consequence of illegal activity. Given this distinction,

a statute prohibiting demonstrations within 36 feet of an abortion

clinic would probably violate the First Amendment, but an

injunction directed at a limited group of persons who have

engaged in unlawful conduct in a similar zone might well be

constitutional. . . .

In formulating this injunction, it was the court’s intention to eliminate reference

to accusations of illegal, unethical, incompetent or intimidating conduct on the

part of Plaintiff from any website maintained by Defendant.

We’ve been back in court several times on the language that still appears on the

website. And, unfortunately, I feel like I’m chasing something that I can’t get my

hands around, because every time I rule that Defendant shouldn’t use one phrase-

ology, she simply switches to another in an . . . apparent attempt to circumvent the

Court’s order. . . .

So what I intend to do is modify the injunction to prevent any mention of Stutz,

Artiano, Shinoff on Defendant’s websites.

And I’m doing that not in an attempt to foreclose or eliminate the Defendant’s right to

free speech, but because it is crystal clear to me at this point that she is unable or unwilling

to modify her website in any good–faith attempt to remove reference to that law firm. . . .

[W]hat I’m trying to do is to make a bright–line rule that there’s no way anybody

can misinterpret. . . .

220 Harvard Journal of Law & Public Policy Vol. 45

In a First Amendment context, as in any other, the propriety of the

remedy depends almost entirely on the character of the violation

and the likelihood of its recurrence. For this reason, standards

fashioned to determine the constitutionality of statutes should not

be used to evaluate injunctions.

On the other hand, even when an injunction impinges on

constitutional rights, more than “a simple proscription against the

precise conduct previously pursued” may be required; the

remedy must include appropriate restraints on “future activities

both to avoid a recurrence of the violation and to eliminate its

consequences.” Moreover, “[t]he judicial remedy for a proven

violation of law will often include commands that the law does

not impose on the community at large.” As such, repeated

violations may justify sanctions that might be invalid if applied to

a first offender or if enacted by the legislature.

In this case, the trial judge heard three days of testimony and

found that petitioners not only had engaged in tortious conduct,

but also had repeatedly violated an earlier injunction. The

injunction is thus twice removed from a legislative proscription

applicable to the general public and should be judged by a

standard that gives appropriate deference to the judge’s unique

familiarity with the facts.

309

Of course, Justice Stevens was talking about narrow injunctions

on speech in a particular place, aimed at causing harms unrelated

to the content of speech (such as blocked abortion clinic entrances).

There is a large gap between these narrow injunctions and categor-

ical “stop talking about the plaintiff” restrictions. Still, there is a

logical link: Justice Stevens is arguing that,

1. Injunctions should be viewed more favorably than normal

criminal or civil prohibitions, rather than as presump-

tively less defensible prior restraints.

2. Judicial discretion should likewise be viewed positively,

as a tool for better tailoring, rather than negatively, be-

cause of the fear of excessive discretion.

309. Madsen, 512 U.S. at 778–79 (Stevens, J., concurring in part and dissenting in part).

2022 Overbroad Injunctions 221

3. As a result, even if a categorical prohibition (for in-

stance, no protesting within 36 feet of an abortion clinic)

is invalid,

310

an injunction entered against a particular

set of defendants is proper.

Justice Stevens’s view, it seems to me, was rightly rejected by all

the other Justices in Madsen.

311

But I think it nonetheless appeals to

many trial court judges, and may explain why they issue orders

that would be clearly unconstitutional under the orthodox view—

“we look at the injunction as we look at a statute, and if upon its

face it abridges rights guaranteed by the First Amendment, it

should be struck down.”

312

D. Getting “all the craziness . . . to stop totally”

Finally, one aspect of an injunction’s flexibility is that it can take

account of the judge’s evaluation of the qualities of the particular

speaker. One particularly vivid illustration came in a case where a

judge ordered a woman “to cease posting any information about

your parents on social media referencing indirectly or directly ref-

erence either one of them,”

313

and added, “Court informs the re-

spondent that all the craziness described in these petitions needs to

stop totally.”

314

That sentiment, I think, implicitly lurks in some (though by no

means all) of the cases I describe. The speakers there seem to come

across as weird, perhaps even mentally unbalanced. They seem ob-

sessed with their subjects’ supposed misdeeds, far beyond what

most of us would see as proportionate. Some might label them “cy-

berstalkers,” reflecting the excessive attention we associate with

stalkers.

310. Id. at 778.

311. Id. at 766 (majority opin.); id. at 794 n.1 (Scalia, J., concurring in the judgment in

part and dissenting in part).

312. United Transp. Union v. State Bar of Mich., 401 U.S. 576, 581 (1971).

313. Raatz v. Raatz, Nos. 2019CV000123 & 2019CV000124 (Wis. Cir. Ct. Portage Cty.

May 21, 2019) (docket entry, available in Westlaw Dockets).

314. Id.

222 Harvard Journal of Law & Public Policy Vol. 45

Judges may easily get a sense that the speakers’ criticisms are un-

founded—or even if well–founded, are repeated at unreasonable

length or with unreasonable enmity. And judges may get a sense

that a narrow injunction (e.g., “you may not say recklessly or know-

ingly false and defamatory things about the plaintiff” or “you may

not repeat [certain specified charges] about the plaintiff”) just won’t

do any good: The obsessed, irrational speaker might claim that her

allegations are actually true, or might subtly change the allegations

and then claim that they are different. The only way to make “all

the craziness” stop, the judge might be thinking, is just to categori-

cally tell her to stop saying anything about the plaintiffs, leaving no

room to wiggle out.

315

Such a prohibition can’t be implemented using a general statute.

“No person shall engage in crazy, excessive, irrational speech about

others” is too vague to be constitutional (even apart from its over-

breadth)—it doesn’t adequately notify speakers about what they

can’t say. But judges may think they know crazy when they see it,

316

and should be allowed to enjoin it. In a sense, this may be connected

to the rules related to “vexatious litigants”: When a plaintiff has

filed many lawsuits that appear frivolous, seemingly driven by

“obsess[ion]” more than by rational evaluation of the merits of a

case, courts will often limit the plaintiff’s ability to file future law-

suits.

317

315. See, e.g., Stutz Artiano Shinoff & Holtz v. Larkins, No. D057190, 2011 WL

3425629, at *3–*4, *9 (Cal. Ct. App. Aug. 5, 2011) (describing but ultimately reversing a

broad injunction banning the defendant from speaking about the plaintiff, which the

court entered following the defendant’s refusal to comply with an earlier, narrower

stipulated injunction).

316. “I know crazy when I see it / I see that look in your eyes again / I know crazy

when I see it / Your disguise is way too thin / I’ve seen it all before / And I know what’s

in store / And I’m not playing your crazy game no more.” A

NDREW

HOMAS

ALTON

I Know Crazy When I See It, on the aptly titled L

OVE AND

ITIGATION

(2015). Also, “crazy

has places to hide in / that are deeper than any goodbye.” L

EONARD

OHEN

, Crazy to

Love You, on O

DEAS

(2012).

317. See, e.g., Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1295 & n.15, 1299 (11th Cir.

2002); Lichtman v. Zelenkofske Axelrod & Co., No. 978 EDA 2013, 2014 WL 10896825,

2022 Overbroad Injunctions 223

Yet while this is an understandable human reaction, the First

Amendment cannot allow it when it comes to speech rather than to

litigation. We can’t be stripped of our constitutional rights to speak

simply because a judge unilaterally concludes that we’re irrational

or obsessed. Whatever the rule might be for filing lawsuits, an act

that triggers expensive legal obligations on the part of defendants,

such a prohibition can’t apply to ordinary speech, press, petition-

ing, or assembly.

Many political or religious zealots throughout the history of First

Amendment law may have come across as obsessed or irrational or

lacking a sense of proportion. Indeed, the willingness to fight a case

up to the Supreme Court, often at considerable personal cost and

peril, may itself be evidence of such obsession, especially to those

of us who sharply disagree with the speaker’s views. The defendant

in Cantwell v. Connecticut, for instance, went to a mostly Catholic

part of town to urge passersby to listen to a record that stridently

attacked Catholicism.

318

Besides being unusually rude, even by the

standards of those who dislike Catholics, this had to have been a

dangerous thing to do.

The near–funeral picketers from Westboro Baptist Church, of

Snyder v. Phelps infamy, seem not just offensive and bigoted but un-

hinged.

319

The 1965 Henry v. Collins

320

case, a follow–up to New York

Times Co. v. Sullivan,

321

protected the rights of someone who tried to

get wire services to publish his conspiracy theories about “a diabol-

ical plot” against him.

322

The 2005 Tory v. Cochran case protected the

at *2 (Pa. Super. Ct. July 14, 2014) (quoting trial court as concluding that “it is highly

unlikely that any sanction [short of an order banning future filings] would be either

collectable or meaningful, give[n] Ms. Lichtman’s insatiable desire to pursue wasteful,

vexatious, baseless, and harassing litigation”).

318. 310 U.S. 296, 301 (1940).

319. 562 U.S. 443 (2011).

320. 380 U.S. 356 (1965).

321. 376 U.S. 254 (1964).

322. Collins, 380 U.S. at 356; for the factual details, see Henry v. Pearson, 158 So. 2d

695, 696 (Miss. 1963).

224 Harvard Journal of Law & Public Policy Vol. 45

rights of a disgruntled litigant who came across as obsessed, an ex-

tortionist, or both.

323

Understandably, in all these cases the Supreme Court has de-

clined to give trial judges the power to decide who is too irrational

to speak. And that is especially so because it’s human nature for

people to view people who are far on their own side of various top-

ics as impassioned and dedicated, but comparable people far on the

other side as crazy or obsessed, especially if they are going after

targets who seem like pillars of the community (judges, police of-

ficers, elected or appointed government officials, and the like).

324

Indeed, remedies law sometimes allows injunctions that go fur-

ther than the initial violation, and even that forbid behavior that,

absent the initial misdeed, would not be tortious.

325

But First

Amendment law does not allow such preventative measures that

ban otherwise protected speech

326

(as opposed to narrow content–

neutral time, place, and manner restrictions).

327

323. 544 U.S. 734 (2005).

324. See supra the first several cases discussed in Part A.

325. See, e.g., People v. Conrad, 64 Cal. Rptr. 2d 248, 250 (Ct. App. 1997).

326. See, e.g., McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015); Balboa Island Vill. Inn,

Inc. v. Lemen, 156 P.3d 339 (Cal. 2007); Gillespie v. Council, No. 67421, 2016 WL 5616589

(Nev. Ct. App. Sep. 27, 2016); Tory v. Cochran, 544 U.S. 734 (2005).

327. For an example of a permissible prophylactic content–neutral injunction, see,

e.g., Schenck v. Pro–Choice Network of W. N.Y., 519 U.S. 357, 381–82 (1997):

Based on defendants’ past conduct, the District Court was entitled to conclude that

some of the defendants who were allowed within 5 to 10 feet of clinic entrances

would not merely engage in stationary, nonobstructive demonstrations but would

continue to do what they had done before: aggressively follow and crowd individ-

uals right up to the clinic door and then refuse to move, or purposefully mill

around parking lot entrances in an effort to impede or block the progress of cars.

And because defendants’ harassment of police hampered the ability of the police

to respond quickly to a problem, a prophylactic measure was even more appro-

priate.

Yet note the narrowness of the injunction: The defendants could continue to say any-

thing they wanted; they only had to do this from 15 feet away from driveways and

parking lot entrances.

2022 Overbroad Injunctions 225

ONCLUSION

I hope this Article has done two things.

First, I hope it has given practical users of the legal system—

judges, lawyers, and unrepresented litigants—a guide to dealing

with these broad injunctions against speech under existing First

Amendment rules. I think those rules, as set forth by the U.S. Su-

preme Court and many of the appellate courts I quote, are generally

wise, and generally forbid such injunctions. As I noted in the Intro-

duction, libel can be restricted. Unwanted speech to a person can

be restricted. A few other categories of speech, such as true threats

of illegal conduct, can be restricted. But offensive speech about a

person—distressing and disturbing as it may be—generally cannot

be restricted.

Second, I hope it has given more theoretical readers, whether ac-

ademics or others who might want to reform the law, a perspective

on something that has been happening in trial courts. It has been

happening almost entirely without public notice. It has often been

happening in cases where the defendants were unrepresented, or

had outright defaulted. It has been happening largely contrary to

binding precedent—but precedent that defendants often lack the

knowledge or legal assistance to cite.

And it has, I think, reflected a set of powerful impulses on judges’

parts to try to protect people against what they understandably per-

ceived as serious harms. Perhaps those judges’ efforts just cannot

be reconciled with our constitutional rules; indeed, I think they

can’t be. But scholars can benefit, I think, from considering this

more, and considering what it says about the virtues and limita-

tions of our legal system.

226 Harvard Journal of Law & Public Policy Vol. 45

PPENDIX

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Any allega-

tions of

wrongdoing”

L Parker v.

Casady

No. CV-16-4844, at 1

(Idaho Dist. Ct. Bonneville

Cnty. Jan. 18, 2017)

“Badmouth-

ing, disparag-

ing or ... deni-

grating”

F Mackney v.

Mackney

No. CL 2008-013103, at 5 ¶

16 (Va. Cir. Ct. Fairfax

Cnty. July 26, 2010)

“Contacting

past or present

clients of [P]”

LH A Ferguson v.

Waid

No. C17-1685RSM, at 1-2 ¶

3 (W.D. Wash. Nov. 19,

2018), rev’d in relevant part,

798 F. App’x 986 (9th Cir.

2020)

“Contact[ing]

anyone about

plaintiff”

H Room-

mates

P Y.P. v. K.V. No. 2010-RO-0041, at 1 ¶

14 (Mass. Dist. Ct. Somer-

ville Feb. 20, 2020), aff’d, 99

Mass. App. Ct. 1130 (First

Amendment arguments

held to have been waived),

appeal denied, 173 N.E.3d

1099 (Mass. 2021)

328

L (libel), H (harassment), H+ (harassment where the speech was treated as harassing

in part because it damaged reputation), I (interference with business relations), P (Privacy),

F (family law cases, involving divorce or child custody), ? (some uncertainty).

329

“%” indicates that the parties had been romantically involved, or at least that one

had been romantically interested in the other. “Lawyer” indicates that the lawsuit appeared

to be a lawyer suing an ex-client or ex-adversary. Some of the entries in the column refer to

the nature of the allegations and not just the relationship of the parties.

330

A (adversarial lawsuit where both parties were present and defendant was repre-

sented by counsel), D (default judgment), E (ex parte), or P (defendant was pro se). Blanks,

in this column and in others, indicate that the situation was unclear.

2022 Overbroad Injunctions 227

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Disparaging

comments” to

P’s business

contacts or po-

tential busi-

ness contacts

LI P Filsoof v.

Cole

No. 1:21-cv-01791-NRB, at

1-2 (S.D.N.Y. Apr. 6, 2021)

“Derogatory” H % P Holton v.

Holton

No. 2019-DR-963, at 5 ¶ 6

(Fla. Cir. Ct. Duval Cnty.

July 31, 2019), rev’d, No.

1D19-2849, 297 So.3d 707

(Fla. Ct. App. 2020)

“Derogatory” LF % D Wang v.

Lee

No. BC573818, at Att. 7a

(Ohio Ct. Com. Pl. Frank-

lin Cnty. July 15, 2016)

“Derogatory,

disparaging,

negative, unfa-

vorable, un-

complimen-

tary, ... or

critical”

L D Selakovic v.

Greenway

Nutrients

No. 2014-CA-

002578XXXXMB, at 2 (Fla.

Cir. Ct. Palm Beach Cnty.

Aug. 14, 2020)

“Disparag-

[ing]”

L P Sulla v.

Horowitz

No. 12-1-0417, at 2 ¶ 3 a.-b.

(Haw. Cir. Ct. 3d Cir. June

17, 2013), aff’d, 366 P.3d

1086 (Haw. Ct. App. 2016)

“Disparaging

comments on

... website re-

lating to [P’s]

employment”

L Barette v.

Houston

Forensic

Science

Center, Inc.

No. 2018-81317, at 1 ¶ 1

(Tex. Dist. Ct. Harris Cnty.

Dec. 6, 2018), vacated, No.

01-19-00129-CV, 2019 WL

5792194 (Tex. App.—Hou-

ston [1st Dist.] Nov. 7,

2019)

228 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Disparaging” H+ % A Gary M. v.

Crystal S.

No. BD555480, at *7 (Cal.

Super. Ct. L.A. Cnty. Feb.

25, 2020), aff’d on procedural

grounds, No. B301773, 2020

WL 5050650, *7 (Cal. Ct.

App. Aug. 27, 2020)

“Disparaging” L D Madwire

Media, LLC

v. Niemann

No. 2014CV030182, at 2 ¶

E.1 (Colo. Dist. Ct. Larimer

Cnty. May 6, 2014)

“Disparaging” H+ Lawyer Furman v.

Horton

No.

502019DR003547XXXXSB,

at 2 ¶ E (Fla. Cir. Ct. Palm

Beach Cnty. July 28, 2020)

“Disparaging” L P Oxendine

v. Ramirez

No.

502017CA011274XXXXMB,

at 1 (Fla. Cir. Ct. Palm

Beach Cnty. Nov. 9, 2017)

“Disparaging” L A Turofsky v.

Bliok

No. 12319/13, at 2 (N.Y.

Sup. Ct. Nassau Cnty.

Apr. 8, 2015)

“Disparaging” L A CK Crea-

tions v.

Pease

No. 2019-CI-13562, at 3 ¶ e

(Tex. Dist. Ct. Bexar Cnty.

Aug. 12, 2019)

“Disparaging” L D Pearson

Roofing v.

Kot

No. 2012-50879-367, at 5

(Tex. Dist. Ct. Denton

Cnty. Dec. 18, 2012)

“Disparaging” L % A Davis v.

Leung

No. 15-1610-CC4, at 3

(Tex. Cnty. Ct. Williamson

Cnty. May 18, 2017)

“Disparaging” L Ex-em-

ployee

A TitleMax of

S.C., Inc. v.

Crowley

No. 4:20-cv-02938-JD-TER,

at 3 (D.S.C. Apr. 28, 2021),

dismissed, No. 4:20-cv-

2938-JD, 2021 BL 485577

(D.S.C. Dec. 21, 2021)

2022 Overbroad Injunctions 229

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Disparaging”

/ discouraging

future custom-

ers

LH Ex-cus-

tomer

P Izzet Gun-

bil, L.L.C.

v. Estrada

No. 46D01-1908-CT-

001985, 2019 WL 11278771,

*3 (Ind. Super. Ct. Laporte

Cnty. Dec. 16, 2019),

“Disparaging”

+ all contact

with investors

L D Sedona Oil

& Gas

Corp. v.

Lowder

No. DC-14-12548, at 2

(Tex. Dist. Ct. Dallas Cnty.

June 23, 2015)

“Harmful, ma-

licious and

disparaging”

LI P Transporta-

tion Firm,

LLC v. Eno-

ble, Inc.

No. 16-cv-2186-SHL-dkv,

at 6 (Tenn. Cir. Ct. Mem-

phis Cnty. June 3, 2016),

available at 2016 WL

8738240

“Malicious” L D Guo v. Li No. PWG-18-259, 2019 WL

2288348, at *4 ¶ 3 (D. Md.

May 29, 2019), vacated,

2020 WL 2563184 (D. Md.

May 29, 2019)

“Negative or

derogatory”

L D Empire

Dev. Corp.

v. Camp-

bell

No. LC105389, at 2 ¶ 7

(Cal. Super. Ct. L.A. Cnty.

Jan. 19, 2018)

“Negative” L Doctor

v. ex-pa-

tient

D Arzate v.

Moham-

med

No. CV2013-016874, at ¶¶

7–9 (Ariz. Super. Ct. Mari-

copa Cnty. Jan. 14, 2015)

“Negative” L Lawyer D Berd v.

Brutus Ca-

ligula

No. CV2012-094656, at ¶¶

5–6 (Ariz. Super. Ct. Mari-

copa Cnty. Feb. 1, 2013)

“Negative” L D Flippa Pty

LTD v. Qui-

nones

No. CV2012-095192, at ¶¶

4--5 (Ariz. Super. Ct. Mari-

copa Cnty. Apr. 8, 2013)

230 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Negative” L D Katz v.

Digirolamo

No. CV2013-003905, at ¶¶

7–8 (Ariz. Super. Ct. Mari-

copa Cnty. June 11, 2014)

“Negative” L Lawyer D Mehta v.

Oslova

No. CV2011-054721, at ¶¶

4–5 (Ariz. Super. Ct. Mari-

copa Cnty. Dec. 20, 2012)

“Negative” L Alleged

patron v.

prosti-

tute over

allega-

tions of

sexual

assault

D Meisenbach

v. Castillo

No. CV2014-001528, at 8 ¶

12 (Ariz. Super. Ct. Mari-

copa Cnty. Mar. 1, 2016)

“Negative” L D Precise

Auto Care,

LLC v.

Pabrezis

No. CV2013-003594, at 4 ¶

8 (Ariz. Super. Ct. Mari-

copa Cnty. Mar. 3, 2014)

“Negative” L D Profinity

LLC v.

Shipley

No. CV2012-013904, at ¶¶

6–7 (Ariz. Super. Ct. Mari-

copa Cnty. Feb. 14, 2014)

“Negative” L D Ramsthel v.

Penny

No. CV2014-093104, at 2 ¶

1, 22 ¶ 7 (Ariz. Super. Ct.

Maricopa Cnty. Sept. 24,

2014)

Online L D Ruffino v.

Lokosky

No. CV2015-009252, 2017

WL 10487368, at ¶¶ 11–13

(Ariz. Super. Ct. Maricopa

Cnty. June 29, 2016), de-

fault judgment set aside, set-

ting aside aff’d, 425 P.3d

1108 (Ariz. Ct. App. 2018)

2022 Overbroad Injunctions 231

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Negative” LI D Walter Arn-

stein, Inc. v.

Transpa-

cific Soft-

ware PVT

Ltd.

No. 11-CV-5079, at 1–2 ¶ 1

(N.Y. Sup. Ct. N.Y. Cnty.

Oct. 26, 2016)

“Negative” L P McLean v.

Walters

No. CJ-2014-3185, at 2

(Okla. Dist. Ct. Oklahoma

Cnty. Sept. 28, 2014)

“Negative,

critical, derog-

atory, dispar-

aging, or dis-

crediting”

L D Shannon v.

Ghosh

No. 15:cv-13010-PBS, 8:18-

CV-00259, at 2 ¶ b (Mass.

Super. Ct. Greenbelt Cnty.

Aug. 10, 2015)

“Offensive” L D Enovative

Techs., LLC

v. Leor

86 F. Supp.3d 445, 446 (D.

Md. 2015)

“Personal,” in-

cluding from

public records

H P In re

Guardian-

ship of Jan-

zen

No. 33272-1-III (Wash. Su-

per. Ct. Spokane Cnty.

2008), aff’d in part, rev’d in

relevant part, No. 33272-1-

III, 190 Wash. App. 1041

(2015)

232 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

“Posting any-

thing on any

social media

forums re-

garding the

Petitioner, his

parenting ...,

or any other

negative com-

ments about

the Petitioner”

H % P Henkel v.

Henkel

No. 2020CV000049, at

Lexis docket (Wisc. Cir. Ct.

Jefferson Cnty. Feb. 10,

2020)

“Social media

harassment

with family

names”

H Burrett v.

Rogers

No. 30-2012-0058389 (Cal.

Super. Ct. Orange Cnty.

Sept. 7, 2012), aff’d, No.

G047412, 2014 WL 411240

(Cal. Ct. App. Feb. 4, 2014)

Accessing any

social media

site

H % Jacobson v.

Webb

No. 48-2014-DR-015747-O

(Fla. Cir. Ct. Orange Cnty.

Nov. 2014), rev’d, No.

5D14-4426, 175 So. 3d 938

(Fla. Ct. App. 2015)

Accurate alle-

gations of

fraud

L Newspa-

per D

Groner v.

Wick Com-

munica-

tions Co.

No. 00126863, at 1 (La.

Dist. Ct. Iberia Parish Aug.

25, 2015)

Accurate alle-

gations of sex

offender status

LH Redmond

v. Heller

No. 2017-000364-NO

(Mich. Cir. Ct. Kalamazoo

Cnty. Aug. 29, 2017), rev’d,

No. 347505, 2020 WL

2781719 (Mich. Ct. App.

May 28, 2020)

2022 Overbroad Injunctions 233

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Accusations of

misconduct

that hadn’t

been found

defamatory

L A McCarthy

v. Fuller

No. 1:08-cv-00994-WTL-

DM (S.D. Ind. Mar. 19,

2014), rev’d in relevant part,

810 F.3d 456 (7th Cir. 2015)

Accusations of

mistreatment

of children

based on hear-

say + contact-

ing P’s pa-

tients

L Family Pearson v.

Pearson

No. 417-00143-2017, at 1

(Tex. Dist. Ct. Collin Cnty.

Jan. 24, 2017)

All H Doctor

v. ex-pa-

tient

P Streeter v.

Visor

No. CV2014093311, at 2 ¶

11 (Ariz. Super. Ct. Mari-

copa Cnty. Dec. 1, 2015),

rev’d, 2015 WL 7736866

(Ariz. Ct. App. Dec. 1,

2015)

All H % Bredfeldt v.

Greene

No. C20131650, at 4–5

(Ariz. Super. Ct. Pima

Cnty. May 20, 2013), aff’d

on procedural grounds, No.

2 CA-CV 2016-0198, 2017

WL 6422341 (Ariz. Ct.

App. Dec. 18, 2017)

All I+ Doctor

v. ex-pa-

tient

D Peretti v.

Ellis

No. CV 60CV-18-2524, at

1-2 (Ark. Cir. Ct. Pulaski

Cnty. Sept. 11, 2018)

All L Lawyer D Naso v.

Silva

No. 30-2013-00679547-CU-

DF-CJC, at 2 (Cal. Super.

Ct. Orange Cnty. July 27,

2015)

234 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

All H Minister

P Flood v.

Wilk

No. 2017 OP 020404 (Ill.

Cir. Ct. Cook Cnty. Oct. 3,

2017), rev’d, 125 N.E.3d

1114 (Ill. App. Ct. 2019)

All H Bryant v.

Hutchison

No. 19-OP-180 & -181 (Ill.

Cir. Ct. Saline Cnty. Nov.

18, 2019), rev’d, No. 5-19-

0508, 2020 WL 7694319 (Ill.

App. Ct. Dec. 28, 2020)

All H Lawyer E Buchanan

v. Crisler

No. 337720 (Mich. Dist. Ct.

Ingham Cnty. Nov. 9,

2016), rev’d, 922 N.W.2d

886 (Mich. Ct. App. 2018)

All F Reli-

gious

leader P

P Jones v.

Jones

No. 27-FA-08-5921, at 3 ¶ 5

(Minn. Dist. Ct. Hennepin

Cnty. May 11, 2015)

All LI E Puruczky v.

Corsi

No. 2017 P 000046 (Ohio

Ct. Com. Pl. Geauga Cnty.

Feb. 15, 2017), rev’d, 110

N.E.3d 73 (Ohio Ct. App.

2018)

All H Ackerman

v. Adams

No. 14ST08-0272, at 2

(Ohio Ct. Com. Pl. Knox

Cnty. Nov. 2, 2015)

All H Family Rasawehr

v. Ra-

sawehr

No. 17-CV-014, at 4 ¶ 9

(Ohio Ct. Com. Pl. Mercer

Cnty. Jan. 18, 2018), rev’d

sub nom. Bey v. Rasawehr,

161 N.E.3d 529 (Ohio 2020)

2022 Overbroad Injunctions 235

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

All L Political

dispute;

one

plaintiff

was

Prime

Minister

of Haiti

D Baker v.

Haiti-Ob-

servateur

Group, Inc.

No. 1:12-cv-23300-JJO, at 3

¶ 6 (S.D. Fla. Feb. 6, 2013),

vacated, 938 F. Supp. 2d

1265 (S.D. Fla. Apr. 9,

2013)

All L A Powers v.

Connerth

No. No. CC-17-CV-902, at

3 ¶ 1 (Tenn. Cir. Ct. Mont-

gomery Cnty. Feb. 14,

2019)

All L Lowry v.

Fiorani

No. 2007-12907, at 1 (Va.

Cir. Ct. Fairfax Cnty. Nov.

16, 2007)

All H Harper v.

Fleck

No. 16S-35, at 3 (Va. Cir.

Ct. Monongalia Cnty. May

5, 2016)

All H Doctor

v. ex-pa-

tient

A Petitioner

v. Brandon

No. 2010CV014072, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. Sept.

8, 2010)

All LI Lawyer Baldinger

v. Ferri

No. 3:10-cv-03122-PGS-

DEA, at 2 ¶ 2 A., ¶ 3 A.

(D.N.J. July 10, 2012)

All L Lawyer Littman v.

Mann

No. 13-00498 CA 23, at 2 ¶

1 (Fla. Cir. Ct. Miami Dade

Cnty. Jan. 24, 2013)

All H? Ulmer v.

Scoville

No. 602785, at 1 (La. Dist.

Ct. East Baton Rouge Par-

ish Aug. 31, 2012)

236 Harvard Journal of Law & Public Policy Vol. 45

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restricted

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senta-

tion

330

Name Citation

All L Reli-

gious

leader P

West v.

Watson

No. DV-10-317A, at 4 ¶ 7

(Mo. Cir. Ct. Flathead

Cnty. Aug. 10, 2010)

All L Regional

Water-

proofing,

Inc. v.

Hickman

No. 19 CVS 13073, at 2 ¶ 2

(N.C. Super. Ct. Wake

Cnty. Oct. 25, 2019)

All FH % D Draghici v.

Johnson

No. D-14-506304-D, at 3

(Nev. Dist. Ct. Clark Cnty.

Aug. 10, 2015)

All L Lawyer A Stutz Ar-

tiano Shi-

noff &

Holtz v.

Larkins

No. 37-2007-00076218-CU-

DF-CTL, at 2 (Cal. Super.

Ct. San Diego Cnty. Dec.

11, 2009), rev’d, No.

D057190, 2011 WL

3425629, *3–*4, *9 (Cal. Ct.

App. Aug. 5,

All H Schliepp v.

Raabe

No. 2020CV001844 (Wisc.

Cir. Ct. Milwaukee Cnty.

Mar. 18, 2020)

All “sharing of

her opinion on

this matter”

L Howell-

Wright v.

Hoover

No. CJ-20-141, at 1 (Okla.

Dist. Ct. Cherokee Cnty.

Nov. 12, 2020)

All contact

with business

associates

L P Coppinger

v. Ramsey

No. CC-12-00349-E, at 25 c

(Tex. Dist. Ct. Dallas Cnty.

Cnty. Feb. 22, 2013)

All public

comments

L Neigh-

bors

A Kauffman

v. Forsythe

No. E2019-02196-COA-R3-

CV (Tenn. Cir. Ct. Rhea

Cnty. Dec. 6, 2019), rev’d,

No. 2019-CV-49 (Tenn. Ct.

App. May 25, 2021)

2022 Overbroad Injunctions 237

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329

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tion

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Name Citation

Anonymous e-

mails about P,

speech about

order

L A Absolute

Pediatric

Servs., Inc.

v. Humph-

rey

No. 04CV-18-2961, at 3 ¶

2(a) (Ark. Cir. Ct. Benton

Cnty. Nov. 1, 2019)

Anonymous

references +

photos

H Polinsky v.

Bolton

No. 27-CV-15-15467

(Minn. Dist. Ct. Hennepin

Cnty. Sept. 2015), aff’d, No.

A16-1544, 2017 WL

2224391 (Minn. Ct. App.

May 22, 2017)

Anonymous

references +

photos

H Lawyer A Fredin v.

Middle-

camp

No. 62-HR-CV-19-621

(Minn. Dist. Ct. Ramsey

Cnt. Mar. 9, 2020), aff’d,

No. A20-0539, 2021 WL

417017 (Minn. Ct. App.

Feb. 8, 2021)

Any accusa-

tions of dis-

honesty, unfit-

ness in

business, or

crime

L Adili v.

Yarnell

No. 2017-CP-08-552, at 2 ¶

B (S.C. Ct. Com. Pl. 9th

Jud. Cir. Feb. 27, 2017)

Calling P

“bully” or

“unprofes-

sional”

LP Murphy v.

Gump

No. 2016-CC-002126-O, at

2 (Fla. Cnty. Ct. Orange

Cnty. July 18, 2016)

Complaining

to government

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L A Hagele v.

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No. 07 CVS 1985 (N.C. Su-

per. Ct. Wake Cnty. Aug.

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tion

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Complaining

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P without

court permis-

sion

H Condo.

ass’n P

A Portofino

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v. Wohlfeld

No. 2018-041933-CA-01

(08) (Fla. Cir. Ct. Miami-

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modified (Feb. 28, 2019)

Complaining

to immigra-

tion enforce-

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F % Meredith v.

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No. 063024566 (Wash. Su-

per. Ct. Pierce Cnty. Nov.

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Complaining

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partment

about police

officer P with-

out court per-

mission

H Police

officer P

Hunley v.

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No. GS011027 (Cal. Super.

Ct. L.A. Cnty. Aug. 20,

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2010 WL 297759 (Cal. Ct.

App. Jan. 27, 2010)

Complaining

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H Family P Parisi v.

Mazzaferro

No. SCV 257142 (Cal. Su-

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2016)

“[D]iscussing

Petitioner or

this case with

anyone famil-

iar with Peti-

tioner”

H Family Sophia M.

v. James M.

No. O14503/17 (N.Y. Fam.

Ct. N.Y. Cnty. Feb. 27,

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Interference

with business

LIP A R.K./FL

Mgmt., Inc.

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No. 2011-017842-CA-01,

2012 WL 12887238 (Fla.

Cir. Ct. Miami-Dade Cnty.

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So. 3d 1086 (Fla. Ct. App.

2014)

2022 Overbroad Injunctions 239

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restricted

Type

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Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online, but

only on Com-

plaints-

Board.com

L Stockton v.

Smith

No. 12C162, at 2 ¶ 2 (Colo.

Dist. Ct. Douglas Cnty.

Oct. 14, 2014)

Online L D ALS

Guardian

Angel

Found. v.

Nicoletti

No. CV2016-004857, at 4

¶¶ 8–10 (Ariz. Super. Ct.

Maricopa Cnty. Jan. 11,

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Online H Lawyer

Castillo v.

Ormandy

No. 5483462, at 2 (Ariz. Su-

per. Ct. Maricopa Cnty.

Oct. 17, 2019)

Online L Alleged

patron v.

prosti-

tute over

allega-

tions of

sexual

assault

D Meisenbach

v. Riva

No. CV2014-000834, at 13

¶ 9 (Ariz. Super. Ct. Mari-

copa Cnty. Apr. 30, 2014)

Online LH Thomas v.

Wray

No. CV19WD05, at 2 (Ark.

Cir. Ct. Benton Cnty. May

24, 2018)

Online H % Hanlon v.

Toro

No. D18-01483, at 4 ¶ 23

(Cal. Super. Ct. Contra

Costa Cnty. Aug. 22, 2018)

Online H D Batsalkin v.

Hedden

No. 18VERO01811, at 2 ¶

6.a.4 (Cal. Super. Ct. L.A.

Cnty. Nov. 9, 2018)

Online L Doctor

v. ex-pa-

tient

A Bradley v.

Stefani

No. YC070821, 2019 WL

4899177, * 2 (Cal. Super.

Ct. L.A. Cnty. Sep. 11,

2019)

240 Harvard Journal of Law & Public Policy Vol. 45

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restricted

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Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online H % P Erikson v.

Caleb

No. 18STR001127, at 4 ¶ 23

(Cal. Super. Ct. L.A. Cnty.

Mar. 9, 2018)

Online L Lawyer D Etehad Law

v. Anner

No. BC625332, at 3 (Att.)

(Cal. Super. Ct. L.A. Cnty.

Jan. 31, 2017)

Online H Lawyer A Mercado v.

Castanedo

No. BS118244, at 3 ¶ 5

(Cal. Super. Ct. L.A. Cnty.

Feb. 4, 2009)

Online H Friends A Narain v.

Sanducci

No. 17TRRO00279 (Cal.

Super. Ct. L.A. Cnty. Sept.

26, 2017), aff’d, No.

B286152, 2018 WL 5919462

(Cal. Ct. App. Nov. 13,

2018)

Online H Friend

of ex-

husband

P Appel v.

Zona

No. 1802924, at 3 ¶ 11 (Cal.

Super. Ct. Riverside Cnty.

July 25, 2018)

Online H Liebich v.

Phillips

No. 2016-70000487, at 1

(Cal. Super. Ct. Sacra-

mento Cnty. Sept. 8, 2016)

Online H Political

activist P

A McCauley

v. Phillips

No. 2016-70000487, at 1

(Cal. Super. Ct. Sacra-

mento Cnty. Sept. 8, 2016),

appeal dismissed on proce-

dural grounds, No.

C083588, 2018 WL 3031765

(Cal. Ct. App. June 19,

2018

Online L D SNA

Transp.,

Inc. v. Co-

lumbus

Freight, Inc.

No. CIVDS 1620113, at 2 ¶

3 (Cal. Super. Ct. San Ber-

nardino Cnty. Sep. 22,

2017)

2022 Overbroad Injunctions 241

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online H A Wannebo v.

Ewing

No. 37-2016-00026279-CU-

HR-CTL, at 6 ¶ 6.a.4 (Att.)

(Cal. Super. Ct. San Diego

Cnty. Oct. 25, 2016)

Online H+ Leka v. Po-

chari

No. 20CH009145, at 2 ¶

5.a.4 (Cal. Super. Ct. Santa

Clara Cnty. Jan. 16, 2020)

Online H State of-

ficial P

A Serafinow-

icz v. Bern-

stein

No. CV154034547S, 2015

WL 3875108, *6 (Conn.

Dist. Ct. Waterbury Jud.

Dist. May 28, 2015), aff’d

sub nom. Stacy B. v. Robert

S., 140 A.3d 1004 (Conn.

App. Ct. 2016

Online H Revenge

porn %

Faustina v.

Hulick

No. 2012 CPO 000388, at 2

(D.C. Super. Ct. Mar. 9,

2012)

Online H State

senator

Book v.

Logue

No. DVCE-17-5746 (Fla.

Dist. Ct. Broward Cnty.

Mar. 9, 2018), rev’d, 297 So.

3d 605 (Fla. Ct. App. 2020)

(en banc)

Online H Police

officer P

P Lanoue v.

Neptune

No. DVCE 14-4939 (Fla.

Cir. Ct. Broward Cnty.

Aug. 22, 2014), rev’d, 178

So. 3d 520 (Fla. Ct. App.

2015)

Online L D Flushcash,

Inc. v.

Bladis

No. 3D12-1287, at 2 ¶ 6

(Fla. Cir. Ct. Miami Dade

Cnty. Apr. 17, 2012), appeal

dismissed, 92 So.3d 834

(Fla. Ct. App. July 24,

2012)

242 Harvard Journal of Law & Public Policy Vol. 45

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restricted

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Rela-

tion-

ship

329

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senta-

tion

330

Name Citation

Online H Political

consult-

ant P

A Delgado v.

Miller

No. 17-16674 (Fla. Cir. Ct.

Miami-Dade Cnty. Feb. 27,

2020), rev’d, 2020 WL

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2, 2020)

Online H Condo.

ass’n P

P Hamptons

at Metrow-

est Condo.

Ass’n v.

Fox

No. 2015-CA-007283-O

(Fla. Cir. Ct. Orange Cnty.

Apr. 18, 2016), rev’d, 223

So. 3d 453 (Fla. Ct. App.

2017)

Online H Lawyer Mazariego

v. Seoane

No.

2020DR004974DRAXES, at

3 ¶ 2.g (Fla. Cir. Ct. Pasco

Cnty. Oct. 15, 2020)

Online H Friends

and

business

partners

A Craft v.

Fuller

No.

2019DR005604XXFDFD

(Fla. Cir. Ct. Pinellas Cnty.

June 28, 2019), rev’d, 298

So. 3d 99 (Fla. Ct. App.

2020)

Online L Lawyer Schaefer v.

Gerrish

No. 12-CA-4135-16-W, at 3

(Fla. Cir. Ct. Seminole

Cnty. Nov. 12, 2019)

Online H Dissatis-

fied cus-

tomer D

A Siegal v.

Barnett

No. 16 OP 20356 (Ill. Cir.

Ct. Cook Cnty. Sept. 21,

2016), aff’d, No. 1-16-3073,

2018 WL 3746460 (Ill. App.

Ct. Aug. 3, 2018)

Online H A Quinn v.

Gjoni

No. 1407RO1169, at 1 ¶ 14

(Mass. Muni. Ct. Boston

Sept. 16, 2014)

Online L Muzani v.

Trankle

No. 02-C-13-182491, at 1

(Md. Cir. Ct. Anne Arun-

del Cnty. Nov. 15, 2013)

2022 Overbroad Injunctions 243

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restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online H Neigh-

bors

Origi-

nally

parte

then

pro se.

Zlatkin v.

Roggow

No. 19-010012-PH (Mich.

Dist. Ct. Gladwin Cnty.

2018), aff’d sub nom. SLA v.

SZ, No. 349341, 2020 WL

3022755 (Mich. Ct. App.

June 4, 2020)

Online H Judge P E Matthews

v. Heit

No. 14-817732-PH, at 1 ¶ 5

(Mich. Cir. Ct. Oakland

Cnty. Mar. 11, 2014)

Online LI D Thermolife

Int’l, LLC v.

Connors

No. C-266-15, at 3 ¶ 3 (N.J.

Super. Ct. Bergen Cnty.

Apr. 11, 2016)

Online H+ A Siegle v.

Martin

No. BUR-L-2674-18, at 2

(N.J. Super. Ct. Burlington

Cnty. Jan. 23, 2019)

Online H % Davino v.

Hochman

No. FV-14-000536-16, at 4

(N.J. Super. Ct. Morris

Cnty. Feb. 3, 2016)

Online L Revenge

porn %

Nahra v.

Maliska

No. CV-15-852649, at 2 ¶

5(iv) (Ohio Ct. Com. Pl.

Cuyahoga Cnty. June 2,

2016)

Online H Local of-

ficial P

E Kleem v.

Hamrick

No. CV 11 761954, at 3

(Ohio Ct. Com. Pl. Cuya-

hoga Cnty. Aug. 15, 2011),

vacated, Aug. 22, 2011

Online H Public

speaker

P %

A Coleman v.

Razete

No. SK1701382 (Ohio Ct.

Com. Pl. Hamilton Cnty.

Jan. 25, 2018), rev’d, 137

N.E.3d 639 (Ohio Ct. App.

2019)

244 Harvard Journal of Law & Public Policy Vol. 45

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restricted

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328

Rela-

tion-

ship

329

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senta-

tion

330

Name Citation

Online L D Clearpath

Lending v.

JTRepper

No. A1500104, at 3 (Ohio

Ct. Com. Pl. Hamilton

Cnty. Sept. 28, 2015)

Online L D Indivijual

Custom

Eyewear v

Jodie J

No. A1407004, at 3 (Ohio

Ct. Com. Pl. Hamilton

Cnty. July 9, 2015)

Online L A Smith v.

Jennings

No. CJ-2019-5832, at 1 ¶ 2

(Okla. Dist. Ct. Oklahoma

Cnty. Aug. 19, 2020)

Online F % A Seachrist v.

Seachrist

No. CI-15-06447, at 1 (Pa.

Ct. Com. Pl. Lancaster

Cnty. Oct. 15, 2015)

Online H+ % A Davis v. El-

lis

No. DC-19-14291, at 4 ¶ d.

(Tex. Dist. Ct. Dallas Cnty.

Sept. 12, 2019)

Online L Fischer v.

Owens

No. 13-2-00996-3, at 2

(Wash. Super. Ct. Clark

Cnty. June 24, 2014)

Online L Promi-

nent

busi-

nessman

A Jia v. Gu No. 17-2-27517-4 KNT, at

4–5 ¶ C (Wash. Super. Ct.

Washington Cnty. Nov. 9,

2017)

Online H % P Pawlowicz

v. Galkin

No. BQ040101, at 3 ¶ 8 &

10 (Cal. Super. Ct. L.A.

Cnty. Nov. 25, 2013)

Online HLI Lawyer D PrismXKB,

Inc. v.

Benaissa

No. 17PSR000329, at 44198

(Cal. Super. Ct. L.A. Cnty.

Aug. 15, 2017)

Online L Lawyer Saadian v.

Avenger213

No. BC 502285, at 1 (Cal.

Super. Ct. L.A. Cnty. July

28, 2014)

2022 Overbroad Injunctions 245

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online FH+ % A People v.

Velyvis

No. CR211376A, 2020 WL

4698811, *1 (Cal. Super. Ct.

Marin Cnty. July 27, 2020)

Online L D Rainek v.

Honsinger

No. 2014CV30018, at 2

(Colo. Dist. Ct. Conejos

Cnty. Oct. 2, 2015)

Online L Doctor

v. ex-pa-

tient

D Noble v.

Matev-

osyan

No. 17CV8129-3, at 10 (Ga.

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Online L Doctor

v. ex-pa-

tient

Blom v.

Callan

No. CV-OC-2011-16232, at

2 ¶ 3 (Idaho Dist. Ct. Ada

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Online H A Siegal v.

Barnett

No. 163073-U, at ¶ 11 (Ill.

Cir. Ct. Cook Cnty. Aug. 3,

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(1st) 163073-U, ¶ 11

Online H Oprisiu v.

Leblanc

No. [unclear], at 1 ¶ 5

(Mich. Cir. Ct. Grand

Traverse Cnty. Mar. 7,

2012)

Online L Lawyer D Revision

Legal,

PLLC v.

Oskouie

No. 17-32312-CZ, at ¶ 7.d

(Mich. Cir. Ct. Grand

Traverse Cnty. Mar. 2018)

Online H Brilar, LLC

v. DeAnge-

lis

No. 19-173448-C2, at 1

(Mich. Cir. Ct. Oakland

Cnty. June 5, 2019)

Online L Lawyer Robiner v.

Cooper

No. 13-133770-C2, at 1

(Mich. Cir. Ct. Oakland

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Online H D Rucki v.

Evavold

No. DV-10-317A, at 1 ¶ 1.

(Minn. Dist. Ct. Dakota

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246 Harvard Journal of Law & Public Policy Vol. 45

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restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online H % Baker v.

Krecl

No. CV-515-2018-378, at 2

¶ 5 (Mont. Dist. Ct. Lewis

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2008)

Online L Yanik v.

Simple

No. 16 CV 11482, at 2 ¶ 7

(N.C. Super. Ct. Wake

Cnty. Dec. 2, 2019)

Online F % P Fantozzi v.

Bigler

No. FD-16-1725-05, at 2 ¶ 6

(N.J. Super. Ct. Passaic

Cnty. July 25, 2008)

Online H P Woodward

v. Price &

Adrian v.

Price

No. D-1329-CV-2020-

00854, -00855, at ¶ 7.B(3)

(N.M. Dist. Ct. Sandoval

Cnty. July 9, 2020)

Online H Heim v.

Clark

No. 2018CV002381, at

Westlaw docket (Wisc. Cir.

Ct. Dane Cnty. Sept. 12,

2018)

Online H Lawyer Peterson v.

Tease

No. 2012CV000569, at

Westlaw docket (Wisc. Cir.

Ct. Manitowoc Cnty. Oct.

1, 2012)

Online H Elias v.

Aguilar

No. 2018CV005181, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. July

2, 2018)

Online H Lyons v. Si-

monis

No. 2019CV002587, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. Apr.

12, 2019)

Online H Family Raatz v.

Raatz

No. 2019CV000123, at

Westlaw docket (Wisc. Cir.

Ct. Portage Cnty. May 21,

2019)

2022 Overbroad Injunctions 247

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online L Lawyer A Picazio v.

Holmseth

No. DVCE11005919, at 2

(Fla. Cir. Ct. Broward

Cnty. Sept. 19, 2011)

Online H Ex-client D Mazor v.

Leys

No. 20STCV47187 (Cal.

Super. Ct. L.A. Cnty. Aug.

24, 2021)

Online L Lawyer P Bacchus v.

Krapacs

No. 4D19-641, at 4 ¶ 6 (Fla.

Cir. Ct. Broward Cnty.

Aug. 12, 2020), rev’d, 301

So.3d 976, 980 (Fla. Ct.

App. 2020)

Online “dis-

paraging”

L D Nationwide

Biweekly

Admin.,

Inc. v. John

Doe et al.

No. 2014-CV-0061, at 3 ¶ 2

b.-c. (Ohio Ct. Com. Pl.

Greene Cnty. Apr. 10,

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Online H % A B.M. v.

M.M.

No. 14P001222 (Cal. Super.

Ct. Orange Cnty. Jul 30,

2017), aff’d on procedural

grounds, No. G05508, 2019

WL 4594776 (Cal. Ct. App.

Sept. 23, 2019)

Online H D Childers v.

Renoir

No. CIVDS1937150 (Cal.

Super. Ct. San Bernardino

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Online L A Same Con-

dition, LLC

v. Codal,

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No. 19-L-5407, at ¶ 6 (Ill.

Cir. Ct. Cook Cnty. Oct. 2,

2020), rev’d, 2021 IL App

(1st) 201187

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restricted

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328

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tion-

ship

329

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senta-

tion

330

Name Citation

Online H Hus-

band v.

wife’s

ex-lover

A Boone v.

Mashaud

No. CPO-739-14, at 2 (D.C.

Super. Ct. July 11, 2014),

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256 A.3d 235 (D.C. Ct.

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Online (social

media)

H A O’Neill v.

Goodwin

No. 4D152055, at App. 413

(Fla. Cir. Ct. Broward

Cnty. June 29, 2016), rev’d,

195 So. 3d 411, 413 (Fla. Ct.

App. 2016)

Online + “of-

fensive posts”

H Revenge

porn %

Fahrenback

v. Jensen

No. 13-DR-010094, at 3 ¶ 6

(Fla. Cir. Ct. Hillsborough

Cnty. July 16, 2013)

Online + “sub-

mitting ... to

any news out-

lets”

L Net Ele-

ment Inc. v.

Zell

No. 2014-015763-CA-01, at

4 ¶ 2 (Fla. Cir. Ct. Miami-

Dade Cnty. Oct. 22, 2014)

Online + pho-

tos

H+ Family

court

evalua-

tor v. ex-

adver-

sary

Kiffmeyer

v. Boyer

No. CV2017-090072, at 2

(Ariz. Super. Ct. Maricopa

Cnty. Jan. 31, 2017)

Online + pho-

tos

H Watson v.

Gugerty

No. J-802-CV-20170995, at

2 (Ariz. Super. Ct. Mohave

Cnty. June 3, 2013)

Online + pho-

tos

H Revenge

porn

Derrig v.

Alexander

No. DV20191766, at 2

(Ariz. Super. Ct. Pima

Cnty. Sept. 9, 2019)

Online + pho-

tos

H % P Gomez v.

Carrasco

No. 18CEFL05380, at

LEXIS docket (Cal. Super.

Ct. Fresno Cnty. Jan. 31,

2019)

2022 Overbroad Injunctions 249

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online + pho-

tos

H % Montanari

v. Barren

No. SS 024853, at ¶ 6.a.4

(Cal. Super. Ct. L.A. Cnty.

Sept. 11, 2014)

Online + pho-

tos

H % Weber v.

Bland

No. 13D002025, at 4 ¶ 21

(Cal. Super. Ct. Orange

Cnty. Mar. 7, 2013)

Online + pho-

tos

H % Czodor v.

Luo

No. 18V002374, at 8 (Att.),

item 23 (Cal. Super. Ct. Or-

ange Cnty. Oct. 19, 2018)

Online + pho-

tos

H % Cardoza v.

Ortiz

No. FAMSS 1707719, at 7

(Cal. Super. Ct. San Ber-

nardino Cnty. Sept. 28,

2017)

Online + pho-

tos

H Geldart v.

Christner

No. 2014-33246-FMCI, at 2

¶ 2.d (Fla. Cir. Ct. Volusia

Cnty. Dec. 10, 2015)

Online + pho-

tos

H+ % Benenson

v. High-

tower

No. 2017-3442, at 1 (La.

Dist. Ct. New Orleans Par-

ish Sept. 11, 2017)

Online + pho-

tos

LH Lawyer D Hutul v.

Maher

No. 1:12-cv-01811, 2012

WL 13075673, at *9 ¶ 6

(N.D. Ill. Dec. 10, 2012)

Online + pho-

tos

H % A Strickler v.

Cappetto

No. 2018CV000107, at

Westlaw docket (Wisc. Cir.

Ct. Marathon Cnty. Feb.

23, 2018)

Online + pho-

tos

H Promi-

nent

busi-

nessman

A David v.

Textor

No. 14-267DV (Fla. Cir. Ct.

Martin Cnty. Oct. 17,

2014), rev’d, 189 So. 3d 871

(2016)

250 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online +

tagged photos

H+ % A Dennis v.

Napoli

No. 4885340, at 13 (N.Y.

Sup. Ct. N.Y. Cnty. Aug.

12, 2015), aff’d, 49 N.Y.S.3d

652 (App. Div. 2017)

Online com-

ments that

“impair Plain-

tiff’s ... Repu-

tation and

ability to find

work”

H+I A Svancara v.

Castillo

No. 201419907-7, at 2 ¶

3.a.iii (Tex. Dist. Ct. Harris

Cnty. Apr. 10, 2014)

Online materi-

als that “dis-

parage” or

“vilify”

L School P A Hargrave

Military

Academy v.

Guyles

No. 7:06-cv-00283-JCT-

mfu, at 2 (W.D. Va. May 8,

2006)

Online on D’s

site

H+ Former

federal

nominee

A Brummer v.

Wey

No. 153583/2015, at 3 (N.Y.

Sup. Ct. N.Y. Cnty. June 5,

2017), rev’d, 166 A.D.3d

475 (2018)

Online re-

views + social

media

H Pereira v.

Dormena

No. 2025RO 0081, at 1 ¶ 6

(Mass. Super. Ct. Barnsta-

ble Cnty. Feb. 12, 2020)

Online speech

causing emo-

tional distress

H+ Best v. Ma-

rino

No. [unknown] (N.M.

Dist. Ct. Doña Ana Cnty.

Oct. 26, 2012), aff’d, 404

P.3d 450 (N.M. Ct. App.

2017)

2022 Overbroad Injunctions 251

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Online state-

ments “that

express[] or

impl[y] that

[D] is the natu-

ral, biological

or adopted

daughter of

[P’s relative]”

L D Armesto v.

Rosolino

No. 70424-9-I, at 5 (Wash.

Super. Ct. King Cnty. July

7, 2014), vacated, 2014 WL

3360238

Photos HL “Online

mugshot

extor-

tion[]”

Gugerty v.

Watson

No. C20172678, at 2 ¶ 6

(Ariz. Super. Ct. Pima

Cnty. June 8, 2017)

Photos H Petitioner

v. Terpstra

No. 2020CV005018 (Wis.

Cir. Ct. Milwaukee Cnty.

Sept. 8, 2020)

Photos H Marais v.

Bravo

No. 17CHRO0186, at 3 ¶

11 (Cal. Super. Ct. L.A.

Cnty. July 17, 2017)

Photos F % P Marquez v.

Flores

No. FAMSS1909109, at

LEXIS docket (Cal. Super.

Ct. San Bernardino Cnty.

Nov. 12, 2019)

Photos F % P Rashid v.

Sarwat

No. HHDFA155040511S,

2016 WL 3391543, at *3 un-

der “personal property”

(Conn. Dist. Ct. Hartford

Jud. Dist. June 1, 2016)

Photos P Revenge

porn %

Sotiropou-

los v. Blue

Star Media

No. 2013CV225702, at 2

(Ga. Super. Ct. Fulton

Cnty. May 8, 2013)

252 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Photos H Coby v.

Jones

No. 2018CV004811, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. June

20, 2018)

Photos H A Petitioner

v. Scmidt

No. 2019CV004213, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. June

13, 2019)

Photos + “de-

rogatory”

H+ Reli-

gious

leader P

Bond v.

Thomas

No. 155440/2017, at 1 (N.Y.

Sup. Ct. N.Y. Cnty. July

28, 2017), cf. 2018 WL

1226050 (N.Y. Sup. Mar. 8,

2018) (related case)

Photos + e-

mails about P

H A Littleton v.

Grover

No. 51217-3-II, at *9-10

(Wash. Super. Ct. Pierce

Cnty. Mar. 12, 2019), rev’d

in part, 2019 WL 1150759

(Wash. Ct. App.)

Photos + name

in title of

pages

H Civic ac-

tivist P

A Moriwaki

v. Rynear-

son

No. 12-17, at 2 (Wash.

Mun. Ct. Kitsap Cnty. July

17, 2017), rev’d, No. 17-2-

01463-1, 2018 WL 733810

(Wash. Super. Ct. Feb. 5,

2018)

Public records

related to P’s

arrest

H % A Catlett v.

Teel

No. 19-2-00086-9 (Wash.

Super. Ct. Island Cnty.

Mar. 26, 2019), rev’d, 477

P.3d 50 (Wash. Ct. App.

2020)

2022 Overbroad Injunctions 253

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Removal of

web site

L Judge P,

lawsuit

over

cam-

paign

video

A Concerned

Citizens for

Judicial

Fairness,

Inc. v. Ya-

cucci

No. 562014CA001711 (Fla.

Cir. Ct. St. Lucie Cnty.

Aug. 8, 2014), rev’d, 162 So.

3d 68 (Fla. Ct. App. 2014)

Remove accu-

rate allega-

tions from site

H Lawyer A Gabueva v.

Roma-

nenko

No. CCH-19-581819, at 2 ¶

6.a.4 (Cal. Super. Ct. S.F.

Cnty. July 26, 2019)

Remove all

posts about P

H P Ellis v.

Chan

No. SU13DM409 (Ga. Su-

per. Ct. Muscogee Cnty.

Mar. 6, 2013), rev’d, 770

S.E.2d 851 (Ga. 2015)

Remove alle-

gation of do-

mestic abuse

from Facebook

F Police

officer P

A Stark v.

Stark

No. CT-002958-18 (Tenn.

Cir. Ct. Shelby Cnty. Feb.

7, 2019), aff’d on procedural

grounds, No.

W201900650COAR3CV,

2020 WL 507644 (Tenn. Ct.

App. Jan. 31, 2020)

Remove alle-

gations of

crime

H+ Local of-

ficial P

McGuire v.

Zoran

No. T15-1798PH (Mich.

Cir. Ct. St. Clair Cnty. July

28, 2015), rev’d sub nom.

T.M. v. M.Z., 926 N.W.2d

900 (Mich. Ct. App. 2018)

Referring to

P’s customers

in discussing

P, using terms

“mafia” &

“bullying”

about P

L A DCS Real

Estate In-

vestments,

LLC v. Ju-

ravin

No. 2017-CA-0667, at 4 ¶

10 (Fla. Cir. Ct. Lake Cnty.

Feb. 28, 2018), aff’d, No.

5D21-451, 2021 WL

4438553, 325 So 3d 1289

(Fla. Ct. App. Sept. 28,

2021)

254 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Shutdown of

site

L Local of-

ficial P

A Fremgen v.

Fullofbolo-

gna.com

No. 2006CV000372, at 2 ¶

1 (Wisc. Cir. Ct. Winne-

bago Cnty. Mar. 30, 2006)

Social media H Former

school-

mates

A Altinawi v.

Salman

No. YS029942 (Cal. Super.

Ct. L.A. Cnty. June 15,

2017), rev’d, No. B284071,

2018 WL 5920276 (Cal. Ct.

App. Nov. 13, 2018)

Social media H % Curcio v.

Pels

No. 18STRO07928 (Cal.

Super. Ct. L.A. Cnty. Nov.

26, 2018), rev’d, 47 Cal.

App. 5th 1 (2020)

Social media H A Mullins v.

Prater

No. 2012-cv-336 (Ohio Ct.

Com. Pl. Auglaize Cnty.

Jan. 4, 2013), rev’d, No. 2-

13-04, 2013 WL 5230272

(Ohio Ct. App. Sept. 16,

2013)

Social media H % Shirk v.

Lambert

No. CP-14-MD-0008149-

2015 (Pa. Ct. Com. Pl. Cen-

tre Cnty. Oct. 26, 2015),

aff’d, 147 A.3d 1221 (Pa.

Super. Ct. 2016)

Social media H % P A.P. v. A.S. No. 51C01-2004-PO-67 & -

68 (Ind. Cir. Ct. Martin

Cnty. May 14, 2020), aff’d,

No. 20A-PO-1486, 2021

WL 631648 (Ind. Ct. App.

Feb. 18, 2021)

Social media H % Matter of

Bundza

No. [unknown] (N.H. Cir.

Ct. Feb. 14, 2018), rev’d on

other grounds, No. 2018-

0173, 2019 WL 1787457

(N.H. Apr. 24, 2019)

2022 Overbroad Injunctions 255

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Social media H % Bannerton

v. Banner-

ton

No. 2020-007820-PP, at 2 ¶

6.l (Mich. Cir. Ct. Macomb

Cnty. Nov. 2, 2020)

Social media H Perkins v.

McAfee

No. 2020CV002121, at

Westlaw docket (Wisc. Cir.

Ct. Milwaukee Cnty. Mar.

23, 2020)

Social media H E Lannom v.

Gaddis

No. 2018OP108 (Ill. Cir. Ct.

Williamson Cnty. Mar. 28,

2018), rev’d, 2021 IL App

(5th) 200327-U

Social media H % P Roberts v.

Garrett

No. FAMVS1803240, at

LEXIS docket (Cal. Super.

Ct. San Bernardino Cnty.

Oct. 23, 2018)

Social media

speech about

divorce

H/F % P Molinaro v.

Molinaro

No. BD643016 (Cal. Super.

Ct. L.A. Cnty. Feb. 15,

2017), rev’d, 245 Cal. Rptr.

3d 402 (Ct. App. 2019)

Speech about

order to Ps’

“family,

friends, or to

their clients

and business

associates”

LP Group for

Horizon

Entm’t, Inc.

v. Branham

No. 2016-60729, at 2 ¶ 6

(Tex. Dist. Ct. Harris Cnty.

Sept. 9, 2016)

Speech near

church and to

church mem-

bers

H Minister

Lo v. Chan No. VS023928 (Cal. Super

Ct. L.A. Cnty. Feb. 5,

2015), rev’d, 2015 WL

9589351 (Cal. Ct. App.

Dec. 30)

256 Harvard Journal of Law & Public Policy Vol. 45

Speech

restricted

Type

328

Rela-

tion-

ship

329

Repre-

senta-

tion

330

Name Citation

Speech that

causes “repu-

tational dam-

age”

L D Meathe v.

Wezensky

No. CACE14-012425, at 2

(Fla. Cir. Ct. Broward

Cnty. Apr. 23, 2015)

Speech to peo-

ple connected

with P’s “em-

ployment or

school to in-

quire about”

plaintiff

H % A DiTanna v.

Edwards

No. 50-2020-DR-004435-

XXXX-SB (Fla. Cir. Ct.

Palm Beach Cnty. June 22,

2020), rev’d, 323 So. 3d 194

(Fla. Ct. App. 2021)

Statements

that “tend to

expose [P] to

public con-

tempt, ridi-

cule, aversion

or disgrace,”

with no limita-

tion to false

statements

L D Torati v.

Simpson

No. 502696/2012, at 2 ¶ 5

(N.Y. Sup. Ct. Kings Cnty.

Dec. 2, 2013)