Sindi v. El-Moslimany , 896 F.3d 1 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 16-2347
HAYAT SINDI,
Plaintiff, Appellee,
v.
SAMIA EL-MOSLIMANY and ANN EL-MOSLIMANY,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Barron, Selya and Stahl,
Circuit Judges.
John A. Kiernan, with whom Bonner Kiernan Trebach & Crociata,
LLP was on brief, for appellants.
Eugene Volokh, pro se, on brief for Eugene Volokh, amicus
curiae.
David H. Rich, with whom Suzanne Elovecky and Todd & Weld LLP
were on brief, for appellee.
July 11, 2018
SELYA, Circuit Judge. This case implicates a plethora
of issues arising in the shadow of the First Amendment. Most
notably, it requires us to address the power of a court to impose
a prior restraint in the form of a permanent injunction forbidding
the publication of words — words that the court believes have been
used to defame the plaintiff in the past and are likely to be
repeated. The case also presents issues as to whether, consistent
with the First Amendment and state law, the evidence adduced at
trial allowed the jury to find defendant-appellant Samia
El-Moslimany (Samia) liable for intentional infliction of
emotional distress and to find Samia and her mother, defendant-
appellant Ann El-Moslimany (Ann), liable for defamation, tortious
interference with contract, and tortious interference with
advantageous relations. Finally, it presents issues as to whether
the damages awarded on these claims, totaling in the millions of
dollars, are excessive.
After careful consideration, we conclude that the
district court's permanent injunction cannot survive the strict
scrutiny that the Constitution demands for prior restraints on
speech. Thus, we vacate the injunction. We affirm the jury's
findings of liability on most (but not all) of Dr. Sindi's tort
claims and affirm the corresponding money judgments (some that
represent the jury's assessment of damages and some that represent
the district court's remittitur of jury awards). Not so the claim
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for tortious interference with advantageous relations: finding the
evidence insufficient, we vacate the jury awards on that claim and
direct the entry of judgment for the appellants.
I.
We offer only a sketch of the relevant events and travel
of the case, reserving a fuller elaboration for our discussion of
specific issues. For these purposes, we take the facts in the
light most hospitable to the jury verdict, consistent with record
support. See Casillas-Díaz v. Palau, 463 F.3d 77, 79 (1st Cir.
2006).
In November of 2010, Samia and her husband, Fouad
Dehlawi, hosted a Thanksgiving dinner at their Seattle-area home.
Their guest list included the plaintiff, Dr. Hayat Sindi, a
prominent Saudi scientist and entrepreneur who was then a visiting
scholar at Harvard University. Several months later, Samia came
to believe that her husband and Dr. Sindi were engaged in a
meretricious relationship. For the next five years, Samia and Ann
published a series of web posts pertaining to Dr. Sindi in a
variety of forums, including Amazon.com, Facebook, the Washington
Post website, and various blogs. They also sent e-mails regarding
Dr. Sindi to members of the scientific community and to investors
in Dr. Sindi's Institute for Imagination and Ingenuity (i2
Institute). Among other calumnies, the appellants accused Dr.
Sindi of fraudulently obtaining her doctorate by paying a colleague
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to ghostwrite her dissertation, repeatedly lying about her age in
order to obtain awards meant for younger scientists, and inflating
her resumé by falsely touting her role in Harvard's Diagnostics
for All initiative.
Dr. Sindi did not take this campaign of vilification
lightly. On January 25, 2013, she sued Samia and Ann in a
Massachusetts state court. Her complaint alleged defamation,
intentional infliction of emotional distress, tortious
interference with contract, and tortious interference with
advantageous relations. Citing diversity of citizenship and the
existence of a controversy in the requisite amount, Samia and Ann
removed the case to the federal district court. See 28 U.S.C.
§§ 1332(a), 1441(a). Following some pretrial skirmishing (not
relevant here) and extensive discovery, the case went to trial on
July 11, 2016.
The trial lasted seven days (exclusive of jury
deliberations). At the close of all the evidence, the district
court denied the appellants' motion for judgment as a matter of
law, see Fed. R. Civ. P. 50(a), and sent the case to the jury. In
the course of its jury instructions, the court encouraged the
jurors to consult a nine-page document (referred to as a "chalk"),
which listed approximately 132 allegedly defamatory statements
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attributed to Samia and/or Ann.1 Neither Samia nor Ann objected
to this portion of the instructions.
The jury returned a general verdict in Dr. Sindi's favor
on all but one of the submitted claims. It found Samia liable for
intentional infliction of emotional distress; absolved Ann of that
charge; and found both Samia and Ann liable for defamation,
tortious interference with contract, and tortious interference
with advantageous relations. The jury awarded damages totaling
$3,500,000.2
The jury verdict generated a flurry of post-trial
activity. Samia and Ann renewed their motion for judgment as a
matter of law, see Fed. R. Civ. P. 50(b), and moved alternatively
for either a new trial or a remittitur, see Fed. R. Civ. P. 59(a),
(e). For her part, Dr. Sindi moved for a permanent injunction,
seeking to enjoin Samia and Ann from uttering or otherwise
publishing a multitude of described statements. On August 18,
1
The chalk, prepared by Dr. Sindi's counsel, purported to
encapsulate evidence presented at trial. It had been referred to
by Dr. Sindi's counsel during closing argument, without objection.
A copy of the chalk is reprinted as Appendix A.
2
Specifically, the jury found Samia liable for damages in
the amount of $100,000 for intentional infliction of emotional
distress, $400,000 for defamation, $2,000,000 for tortious
interference with contract, and $400,000 for tortious interference
with advantageous relations. The jury found Ann liable for
$100,000 for defamation, $400,000 for tortious interference with
contract, and $100,000 for tortious interference with advantageous
relations.
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2016, the district court granted Dr. Sindi's motion and enjoined
the appellants from publishing "orally, in writing, through direct
electronic communications, or by directing others to websites or
blogs reprinting" six statements that the district court concluded
were defamatory.
Some six weeks later, the district court denied the
appellants' motion for judgment as a matter of law. At the same
time, the court denied their alternative motion for a new trial or
a remittitur, with two exceptions. First, the court granted a
remittitur of the damages awarded against Samia for tortious
interference with contract (directing Dr. Sindi to remit all of
the $2,000,000 verdict on that claim in excess of $576,000). See
Sindi v. El-Moslimany, No. 13-cv-10798, 2016 WL 5867403, at *6 (D.
Mass. Oct. 6, 2016). Second, it granted a remittitur of the
damages awarded against Ann for tortious interference with
contract (directing Dr. Sindi to remit all of the $400,000 verdict
on that claim in excess of $144,000). See id. The court proceeded
to enter an amended final judgment, which included prejudgment
interest, see Mass. Gen. Laws ch. 231, § 6B, costs, and the
permanent injunction.3
This timely appeal ensued. Following oral argument, we
directed the parties to submit supplemental briefs designed to
3 A copy of the Amended Final Judgment is reprinted as Appendix
B.
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answer certain questions affecting the validity vel non of the
permanent injunction. We have received those supplemental briefs,
along with a thoughtful amicus brief, and the appeal is now ripe
for decision.
II.
We review the district court's denial of a motion for
judgment as a matter of law de novo. See Trainor v. HEI Hosp.,
LLC, 699 F.3d 19, 26 (1st Cir. 2012). In conducting this tamisage,
we examine the record in the light most favorable to the nonmovant
and will reverse "only if reasonable persons could not have reached
the conclusion that the jury embraced." Sanchez v. P.R. Oil Co.,
37 F.3d 712, 716 (1st Cir. 1994).
Our review of the district court's denial of a motion
for a new trial under Rule 59 "is even more circumscribed." Id.
at 717. A trial court may "set aside a jury's verdict and order
a new trial only if the verdict is against the demonstrable weight
of the credible evidence or results in a blatant miscarriage of
justice." Id. When a movant attacks an award of damages as
excessive, a court may remit the award only if "the award exceeds
any rational appraisal or estimate of the damages that could be
based upon the evidence before it." Trainor, 699 F.3d at 29
(quoting Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir. 2003)).
We review the district court's adjudication of a motion for either
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a new trial or a remittitur for abuse of discretion. See id.;
Sanchez, 37 F.3d at 717.
Since this case comes to us by means of our diversity
jurisdiction, we must look to state law for the substantive rules
of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938); Sanders v. Phoenix Ins. Co., 843 F.3d 37, 42 (1st Cir.
2016). In this instance, we — like the court below — follow the
parties' lead and look to the substantive law of Massachusetts.
See Shay v. Walters, 702 F.3d 76, 80 (1st Cir. 2012).
III.
We begin our analysis with the defamation claims. In
Massachusetts, a defamation plaintiff must establish that "[t]he
defendant made a statement, concerning the plaintiff, to a third
party"; that such "statement could damage the plaintiff's
reputation in the community"; that "[t]he defendant was at fault
in making the statement"; and that "[t]he statement either caused
the plaintiff economic loss . . . or is actionable without proof
of economic loss." Ravnikar v. Bogojavlensky, 782 N.E.2d 508,
510-11 (Mass. 2003). "A false statement that 'would tend to hold
the plaintiff up to scorn, hatred, ridicule or contempt, in the
minds of any considerable and respectable segment in the
community,' [is] considered defamatory." Phelan v. May Dep't
Stores Co., 819 N.E.2d 550, 553 (Mass. 2004) (quoting Stone v.
Essex Cty. Newspapers, Inc., 330 N.E.2d 161, 165 (Mass. 1975)).
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The First Amendment, made applicable to the states
through the Fourteenth Amendment, overlays state defamation law
and imposes a number of constraints on a plaintiff who seeks relief
for defamation.4 See N.Y. Times Co. v. Sullivan, 376 U.S. 254,
276-77, 283-84 (1964). This is as it should be: "it is essential
that the First Amendment protect some erroneous publications as
well as true ones" in order "to insure the ascertainment and
publication of the truth about public affairs." St. Amant v.
Thompson, 390 U.S. 727, 732 (1968). It follows that a public
figure may recover for defamation only if she proves actual malice
by clear and convincing evidence. See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 342 (1974). That is, such a plaintiff must
demonstrate with convincing clarity that "the defamatory falsehood
was made with knowledge of its falsity or with reckless disregard
for the truth." Id. This requirement applies both to plaintiffs
whose "pervasive fame or notoriety" makes them "public figure[s]
for all purposes and in all contexts" and to plaintiffs who are
4Samia and Ann also invoke the protections of Article 16 of
the Massachusetts Declaration of Rights. They have not developed,
though, any separate analysis under this provision. And in any
event, "the criteria which have been established by the United
States Supreme Court for judging claims arising under the First
Amendment . . . are equally appropriate to claims brought under
cognate provisions of the Massachusetts Constitution." Doe v. Sex
Offender Registry Bd., 947 N.E.2d 9, 28 (Mass. 2011) (quoting Ops.
of Justices, 440 N.E.2d 1159, 1160 (Mass. 1982)).
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public figures with respect to the "limited range of issues"
surrounding the claimed defamation. Id. at 351.
In proving actual malice, a defamation plaintiff must
shoulder a heavy burden. The Supreme Court has underscored that
"[a] reckless disregard for the truth . . . requires more than a
departure from reasonably prudent conduct." Harte-Hanks Commc'ns,
Inc. v. Connaughton, 491 U.S. 657, 688 (1989) (internal quotation
marks omitted). Thus, a public-figure plaintiff must point to
clear and convincing evidence that the defendant made the
challenged statement with a "high degree of awareness of [its]
probable falsity," Vascular Sols., Inc. v. Marine Polymer Techs.,
Inc., 590 F.3d 56, 60 (1st Cir. 2009) (per curiam) (quoting
Garrison v. Louisiana, 379 U.S. 64, 74 (1964)), or "entertained
serious doubts as to the truth of his publication," id. (quoting
St. Amant, 390 U.S. at 731).
Of course, a statement is not actionable "unless in a
given context it reasonably can be understood as having an easily
ascertainable and objectively verifiable meaning." Levinsky's,
Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129 (1st Cir. 1997).
Statements that are merely "'imaginative expression'" or
"'rhetorical hyperbole'" — in other words, statements that "no
reasonable person would believe presented facts" — are not
actionable. Id. at 128 (quoting Milkovich v. Lorain Journal Co.,
497 U.S. 1, 17, 20 (1990)).
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We caution, however, that the First Amendment does not
command "a wholesale defamation exemption" for statements that
"might be labeled 'opinion[s].'" Milkovich, 497 U.S. at 18.
Rather, "[a] statement couched as an opinion that presents or
implies the existence of facts which are capable of being proven
true or false can be actionable." Levinsky's, 127 F.3d at 127.
The First Amendment imposes yet another safeguard with
respect to awards of damages for defamation. It requires an
appellate court to review the supporting evidence independently.
See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
510-11 (1984). Thus, we must afford plenary review to "mixed
fact/law matters which implicate core First Amendment concerns,"
such as the jury's conclusions regarding falsity and actual malice.
AIDS Action Comm. of Mass., Inc. v. MBTA, 42 F.3d 1, 7 (1st Cir.
1994); see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of
Bos., 515 U.S. 557, 567 (1995). Put another way, we must ensure
that the jury's verdict "does not constitute a forbidden intrusion
on the field of free expression." N.Y. Times Co., 376 U.S. at
285.
Withal, "[i]ndependent review is not a limitless
ransacking of the record as a whole." Mandel v. Bos. Phoenix,
Inc., 456 F.3d 198, 208 (1st Cir. 2006). The usual deferential
Rule 50 standard applies to mixed fact/law questions that do not
implicate First Amendment concerns. See Bose Corp., 466 U.S. at
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514 n.31. Causation is such a question. See Fiori v. Truck
Drivers, Local 170, 354 F.3d 84, 89 (1st Cir. 2004). So, too,
deference is due to the jury's assessment of witness credibility.
See Hurley, 515 U.S. at 567; Mandel, 456 F.3d at 208.
A.
With this backdrop in place, we proceed to examine the
vitriol-soaked comments that fueled the defamation claims at issue
here. Our starting point is clear: Dr. Sindi, an appointee of
Saudi King Abdullah to his government's Shura Council and a
goodwill ambassador of the United Nations Educational, Scientific
and Cultural Organization, concedes that she is at least a limited-
purpose public figure. We must, therefore, independently mine the
record to determine whether Dr. Sindi proved by clear and
convincing evidence that Samia and Ann maliciously defamed her.
See Gertz, 418 U.S. at 342.
Following a thorough appraisal, we conclude — without
serious question — that the defamation verdicts pass
constitutional muster. While the record reflects a grotesque
number of false statements that hold Dr. Sindi up to public scorn
and contempt (including a majority of the statements memorialized
on the chalk), the law of the case, as exemplified by the district
court's unchallenged jury instructions, requires only that Dr.
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Sindi show that one or more defamatory statements were made.5
Therefore, no useful purpose would be served by evaluating
separately each of the approximately 132 allegedly defamatory
statements listed on the chalk. Given the law of the case, it
suffices for us to shine the light of our inquiry on three
categories of statements that were primary focal points of the
trial. No more is exigible to validate the defamation verdicts
under the district court's jury instructions.6
1.
We start with Samia's repeated accusation — variously
phrased and published in myriad web postings and in e-mails to
members of the scientific community, journalists, investors in the
i2 Institute, and State Department officials — that Dr. Sindi
fraudulently obtained her Ph.D. from Cambridge University.7
5 Absent plain error, we treat the relevant jury instructions
as the law of the case because neither Samia nor Ann interposed
any timely objection to them. See Moore v. Murphy, 47 F.3d 8, 11
(1st Cir. 1995); see also United States v. Hussein, 351 F.3d 9, 18
(1st Cir. 2003) (noting that unobjected-to jury instruction
becomes binding unless plainly erroneous).
6 Although the appellants make passing mention of their plaint
that the defamation verdicts are against the weight of the
evidence, they do not accompany that plaint with any developed
argumentation. Consequently, we deem any such challenge
abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
7 Although Samia disclaimed responsibility for some of these
e-mails and posts, the jury supportably could have found that she
authored all of them.
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Representative of this category of statements is a February 12,
2014, e-mail to the i2 Institute's board members and sundry
journalists that:
[Dr. Sindi's] research was allegedly conducted
and her dissertation written, by Adrian
Stevenson, a postdoctoral and very intimate
friend of Sindi. According to Sindi's live-
in boyfriend from 2001 to 2005, throughout the
writing of her dissertation, Stevenson was
allegedly financially compensated by Sindi's
father to act as her "bodyguard." [Cambridge
University Professor Christopher] Lowe
confirmed that the writing style of her
dissertation was clearly that of Stevenson,
and that they were "very, very intimate
friends." Furthermore, Lowe believes that
"money definitely changed hands." Myer Berlow
. . . also confirmed that she did not have the
basic scientific or technical knowledge to
have conducted the research or to have written
her dissertation.
These statements have an easily decipherable and
verifiable meaning, present the existence of specific facts that
are capable of being proven false, and are more than mere
rhetorical flights of fancy. See Levinsky's, 127 F.3d at 127-28.
In addition, they are plainly defamatory: they impugn Dr. Sindi's
professional competence while accusing her of fraud,
notwithstanding the utter absence of any probative evidence
contradicting Dr. Sindi's testimony regarding the elaborate
research and writing process she undertook to complete her
dissertation and obtain her degree. See Phelan, 819 N.E.2d at
553.
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The question reduces, then, to whether the statements
were made with actual malice, that is, either with knowledge of
their falsity or with a reckless disregard for the truth. See
Bose Corp., 466 U.S. at 513. This inquiry is both subjective and
time-sensitive, turning on "the defendant's state of mind at the
time of publication." Kahl v. Bureau of Nat'l Affairs, Inc., 856
F.3d 106, 118 (D.C. Cir. 2017). Since "direct evidence of actual
malice is rare," we have permitted actual malice to be proved
through inference and circumstantial evidence alone. Levesque v.
Doocy, 560 F.3d 82, 90 (1st Cir. 2009); see Connaughton, 491 U.S.
at 668. For example, actual malice "may be found where a publisher
fabricates an account, makes inherently improbable allegations,
relies on a source where there is an obvious reason to doubt its
veracity, or deliberately ignores evidence that calls into
question his published statements." Levesque, 560 F.3d at 90.
Although motive alone cannot suffice to prove actual malice, it is
a highly relevant consideration. See Connaughton, 491 U.S. at
665, 667-68; Vascular Sols., 590 F.3d at 61.
With respect to the "doctoral dissertation" statements,
the jury was entitled to find that Samia fabricated material facts.
Although Samia declared that the well-known entrepreneur and
scientist, Myer Berlow, "confirmed" that Dr. Sindi lacked the
prerequisite scientific or technical prowess to have written her
dissertation, Berlow testified unequivocally that he had never
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made such a statement. Such a gross fabrication is powerful
evidence of actual malice. See, e.g., St. Amant, 390 U.S. at 732;
Tosti v. Ayik, 476 N.E.2d 928, 936 (Mass. 1985). To cinch the
matter, Samia admitted during cross-examination that she had "no
confirmed facts" to support her claim of fraud.
Nor was this all. The jury heard evidence that Samia
deliberately ignored facts that called her public statements into
question. For example, she admitted that she had no proof that
any academic institution had ever investigated possible
improprieties in connection with Dr. Sindi's doctorate. She also
admitted that she had contact information for Dr. Stevenson (an
academic who had publicly lauded Dr. Sindi's dissertation), yet
she never reached out to him. On this record, the jury reasonably
could have inferred that Samia deliberately chose not to contact
Dr. Stevenson out of a concern that he would vouch for the
legitimacy of Dr. Sindi's degree and thereby undercut Samia's
criticisms. Refusing to take easily available steps that could
confirm or refute a claim may constitute probative evidence of a
reckless disregard for the truth. See Connaughton, 491 U.S. at
682-84; Desnick v. Am. Broad. Cos., 233 F.3d 514, 517 (7th Cir.
2000).
Casting a further pall over Samia's statements is the
fact that she had an obvious motive to besmirch Dr. Sindi's
reputation: she believed that Dr. Sindi had engaged in an
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extramarital affair with her husband. In an e-mail dated December
17, 2011, Samia admonished Dr. Sindi that "you will rue the day
you took advantage of my hospitality, came into my home, seduced
[and] then tried to steal my husband." In another e-mail, Samia
informed Dr. Sindi that she and Ann had prayed that God would
"expose[] [Dr. Sindi] and deliver[] justice." Samia's vengeful
motive, while insufficient on its own to establish actual malice,
furnishes cogent evidence supporting such a finding. See
Connaughton, 491 U.S. at 668.
To be sure, Samia testified that several people had told
her that Dr. Sindi obtained her Ph.D. through various sorts of
chicanery and sleight of hand. But Samia did not produce any of
those third parties as witnesses, and the jury was not required to
credit Samia's second-hand and uncorroborated account. See id. at
688 (noting that a jury's credibility assessments are reviewed for
clear error, even in First Amendment cases).
2.
The next group of statements involves Samia's
accusations that Dr. Sindi (who was born on November 6, 1967) lied
about her age in order to secure awards meant for younger
scientists. Representative of these accusations is Samia's blog
post on April 21, 2012, in which she wrote that Dr. Sindi
"misrepresent[ed] her age" in order to win the 2007 Arab-American
Science and Technology Young Professional Award, the 2009 PopTech
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Social Innovation Fellowship, and the 2011 National Geographic
Emerging Scholar Award, thus "rob[bing] opportunities for
recognition, public relations support, funding . . . and career
advancement" from younger scientists. Similarly, in a letter to
State Department officials dated February 12, 2014, Samia claimed
that Dr. Sindi had misrepresented her age by some eleven years in
connection with each of these awards.
We have scant difficulty in concluding that these
statements are actionable. To begin, each statement about Dr.
Sindi's age has "an easily ascertainable and objectively
verifiable meaning." Levinsky's, 127 F.3d at 129. Viewed in
context, such statements had the undeniable potential to prejudice
Dr. Sindi's professional and business endeavors. See Ravnikar,
782 N.E.2d at 511. What is more, the statements were demonstrably
false: Dr. Sindi testified that she had never lied about her age
to an award-granting entity, and Samia conceded that she had no
competent evidence to the contrary.
Dr. Sindi also showed that these statements were made
with actual malice. Samia confessed that she had never spoken to
anyone with authority to award the prizes that she identified. In
fact, she had done nothing even remotely resembling due diligence
to verify her claim of mendacity. For aught that appears, Samia
simply plucked the accusation out of thin air. On this record,
the jury had ample room to find that Samia's age-related statements
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were total fabrications and, thus, actionable. See St. Amant, 390
U.S. at 732.
3.
The last category of statements clusters around Samia's
comments about Dr. Sindi's inflation of her resumé through
apocryphal boasts that she was involved in founding Diagnostics
for All (DFA). Some background facts help to put these comments
in perspective.
DFA was created to disseminate affordable diagnostic
tools developed in the laboratory of a Harvard professor, Dr.
George Whitesides, for use in third-world countries. The effort
was widely acclaimed, and DFA won a $100,000 prize in an MIT
entrepreneurship competition. Dr. Sindi was a visiting fellow in
Dr. Whitesides' laboratory at the time DFA took shape, and she
frequently touted her role in its creation. At times, she
described herself as a cofounder and/or coinventor.
After a laudatory column regarding Dr. Sindi was
published on the Washington Post website on January 18, 2013, Samia
posted a comment urging readers to "ask [Dr. Whitesides] about
[Dr. Sindi's] non-existent role in the founding of DFA." Samia
proceeded, at various times, to make further statements of this
nature alleging in substance that Dr. Sindi had either invented or
at least wildly exaggerated the importance of her efforts vis-à-
vis DFA.
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At the outset, we note that Samia, in disseminating the
original statement, urged readers "to [s]peak to Professor
Whitesides of Harvard." Although this statement implies that Samia
had herself interviewed Dr. Whitesides prior to commenting, she
had never so much as exchanged a word with him. That Samia
misrepresented the information gleaned from her sources strongly
suggests actual malice. See St. Amant, 390 U.S. at 732; Levesque,
560 F.3d at 90.
Nevertheless, Samia doggedly insists that these
statements were true or, at least, mere hyperbole. She leans
heavily on the fact that Dr. Whitesides downplayed Dr. Sindi's
role in creating the specific diagnostic tools used by DFA,
testifying that he and Dr. Carmichael Roberts were the technology's
coinventors. But this emphasis on a single snippet of testimony
distorts the picture: Dr. Whitesides made pellucid that, from "the
very beginning," Dr. Sindi was "part of the team" involved in the
development of the overall DFA technology. He further testified
that Dr. Sindi played an integral role in constructing the business
plan for DFA and credited her with helping DFA win the MIT
competition. In the same vein, Berlow — an early leader of DFA —
lauded Dr. Sindi's important contributions in launching DFA. As
Samia's own notes revealed, Berlow told her as much during a
conversation in April of 2012. Thus, it is evident that Samia was
aware of facts flatly contradicting her statement. Yet, she
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continued to shout from the rooftops (figuratively speaking) that
Dr. Sindi had nothing to do with DFA's success.
Samia's statements, which falsely claimed that Dr.
Sindi's role in the DFA endeavor was nonexistent when in fact it
was significant, held Dr. Sindi up to public scorn and opprobrium.
The statements also characterize Dr. Sindi's truthful claims as
lies. Especially in light of the history of acrimony between the
two women, the jury was entitled to find that Samia's DFA-related
statements about Dr. Sindi were false, defamatory, and made with
actual malice.
4.
The same three categories of statements, at a bare
minimum, are actionable against Ann. For the most part, Ann simply
regurgitated Samia's falsehoods regarding Dr. Sindi's Ph.D., age,
and relationship to DFA, authoring a host of derogatory Facebook
posts and e-mails to Dr. Sindi's professional associates. As we
have shown, see supra Parts III(A)(1)-(3), all of these
animadversions were false and defamatory (as were many others
memorialized on the chalk but not analyzed in depth here).
This leaves only the question of actual malice. To
begin, Ann — as Samia's mother — harbored ill will towards Dr.
Sindi. Moreover, she conceded at trial that she had done nothing
in the way of serious research to verify Samia's spectacular
allegations before broadcasting them wholesale. Significantly,
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Ann was keenly aware that her daughter was not a neutral source of
information: she had full knowledge of Samia's antipathy toward
Dr. Sindi. When a speaker relies on a single source
notwithstanding the existence of obvious reasons for skepticism
about that source's accuracy, a jury may infer actual malice. See
St. Amant, 390 U.S. at 732; Celle v. Filipino Rep. Enters. Inc.,
209 F.3d 163, 190 (2d Cir. 2000). So it is here: though Dr.
Sindi's defamation claim against Ann is less robust, it is hardy
enough to survive independent review.
B.
Represented by new counsel on appeal, Samia and Ann have
a fallback position. They assert that the court erred in
instructing the jury that a defendant could be held liable as long
as that defendant had published at least one defamatory statement
with actual malice. In their view, the court should have
instructed the jury to specify which of the statements on the chalk
were maliciously defamatory and, thus, formed the basis of its
verdict. For support, they rely principally on our decision in
Levinsky's, in which (as here) the jury returned a general verdict
for the defamation plaintiff. See 127 F.3d at 136. We vacated
that judgment, explaining that the plaintiff had charged the
defendant with making two statements, only one of which we found
to be actionable. Consequently, the verdict could not stand
because it did not specify the statement on which liability was
- 22 -
premised. See id. Extrapolating from this decision and from a
similar decision in Simon v. Navon, 71 F.3d 9, 19 (1st Cir. 1995),
the appellants argue that we must order a retrial if so much as a
single statement displayed on the chalk fails to satisfy the
requirements for a defamation claim.
Here, however, there is a rub. Samia and Ann failed to
request a jury instruction along these lines in the district court.
To compound the problem thus created, they did not object to the
instruction about which they now complain prior to jury
deliberations. See Fed. R. Civ. P. 51(c)(1) (requiring parties
before a case is sent to the jury to "state[] distinctly the matter
objected to and the grounds for the objection"). Nor did the
appellants raise this issue in either their motion for judgment as
a matter of law or their motion for a new trial.
Just as actions have consequences, omissions too have
consequences. It is black-letter law that claims of instructional
error not seasonably advanced in the district court can be broached
on appeal only for plain error. See DeCaro v. Hasbro, Inc., 580
F.3d 55, 60 (1st Cir. 2009); Ferrara & DiMercurio v. St. Paul
Mercury Ins. Co., 240 F.3d 1, 13 (1st Cir. 2001). To establish
plain error, a party must show "(1) that an error occurred (2)
which was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired
the fairness, integrity, or public reputation of judicial
- 23 -
proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.
2001). The party claiming plain error must carry the devoir of
persuasion on all four facets of this test. See United States v.
Bramley, 847 F.3d 1, 5 (1st Cir. 2017). Not surprisingly, then,
reversals for plain error are "hen's-teeth rare" in civil cases.
Teixeira v. Town of Coventry, 882 F.3d 13, 18 (1st Cir. 2018); see
Amicas, Inc. v. GMG Health Sys., Ltd., 676 F.3d 227, 235 (1st Cir.
2012).
Samia and Ann cannot clear this high hurdle. Even if we
assume, for argument's sake, that some of the roughly 132
statements limned in the chalk are not actionable, the trial
focused primarily on the three categories of statements discussed
above (that is, false statements pertaining to Dr. Sindi's Ph.D.,
age, and connection with DFA). Seen in this light, the chances
are virtually nil that the jury premised its liability
determination on protected speech. See Van Liew v. Eliopoulos, 84
N.E.3d 898, 913 (Mass. App. Ct. 2017) (affirming verdict where
three of twenty-nine allegedly defamatory statements were non-
actionable but were not the focus of trial and did not "add
measurably" to plaintiff's injuries). Plain error is plainly
absent.
Nothing more need be said. Even if the appellants are
correct in suggesting that the jury instructions were infected by
an obvious strain of error (a matter on which we take no view),
- 24 -
there is Buckley's chance that the verdicts on the defamation
claims rested exclusively on any of the few arguably non-defamatory
statements. Consequently, the appellants cannot satisfy the third
prong of the plain error test. See Bramley, 847 F.3d at 7
(explaining that proponent of plain error must show, at a minimum,
a reasonable probability that but for the alleged error, the
outcome of the trial would have been different).
C.
The issue of damages remains. Samia and Ann characterize
the damages awarded by the jury on the defamation claims ($400,000
against Samia and $100,000 against Ann) as excessive and entreat
us to either grant a new trial on damages or to reduce the awards.
Their main argument is that the damages are too high because Dr.
Sindi offered insufficient evidence of economic loss resulting
from their libels.
The court below was tasked with assaying the damages
awarded by the jury, and its decision to deny the appellants'
motion for a new trial on damages or for a remittitur is reviewed
for abuse of discretion. See Trainor, 699 F.3d at 29. We discern
none here.
To recover damages, Massachusetts does not require a
plaintiff to prove that economic harm resulted from defamatory
statements alleging "that the plaintiff lacks a necessary
characteristic of [her] profession." Ravnikar, 782 N.E.2d at 511.
- 25 -
In such circumstances, the plaintiff may recover for wholly
noneconomic losses, including "impairment of reputation and
standing in the community, personal humiliation, and mental
anguish and suffering." Draghetti v. Chmielewski, 626 N.E.2d 862,
868 (Mass. 1994).
Samia's and Ann's statements regarding Dr. Sindi's Ph.D.
and previous accomplishments impugn Dr. Sindi's scientific
aptitude and her professional integrity, which are necessary
characteristics of her vocation. Here, moreover, Dr. Sindi
introduced evidence of reputational harm flowing from the
appellants' defamatory statements, including Berlow's testimony
and the testimony of Joi Ito (the director of the MIT Media Lab).
She also introduced evidence concerning the humiliation that she
experienced as a result of the appellants' campaign of
vilification. Given the quantity and quality of this evidence, we
hold that the jury's awards of damages for defamation were not so
exorbitant as to exceed any reasonable appraisal of damages
sustained. Nor were they so extravagant as to shock the
conscience. It follows inexorably that the district court's
refusal to order either a new trial on damages or a remittitur fit
comfortably within the realm of its broad discretion.8
8
We need not linger long over the appellants' exhortation
that we should order a new trial because of allegedly inflammatory
statements made by Dr. Sindi's counsel during closing argument.
These statements drew no contemporaneous objection at trial; and
- 26 -
IV.
The next leg of our journey takes us to Dr. Sindi's claim
for intentional infliction of emotional distress. The jury found
Samia liable for this claim and awarded damages against her in the
amount of $100,000. At the same time, the jury exonerated Ann on
a counterpart claim, and Dr. Sindi has not appealed this finding.
Samia challenges the liability finding, the damages
awarded, and the district court's denial of her post-trial motion
seeking either to set aside the verdict or to reduce the award.
These challenges are unavailing.
Under Massachusetts law, a plaintiff claiming
intentional infliction of emotional distress must show that the
defendant "intended to inflict emotional distress or that [she]
knew or should have known that emotional distress was the likely
result of [her] conduct"; that the defendant's "conduct was extreme
and outrageous," such that it transgressed "all possible bounds of
decency and was utterly intolerable in a civilized community";
that the conduct caused the plaintiff to suffer emotional distress;
and that this distress "was severe and of a nature that no
reasonable [person] could be expected to endure it." Agis v.
Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (internal
since the claim of error is made for the first time in the
appellants' reply brief, we deem it too little too late. See
United States v. Eirby, 515 F.3d 31, 36 n.4 (1st Cir. 2008);
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).
- 27 -
quotation marks omitted). Samia contends that her conduct was not
sufficiently extreme or outrageous to come within this framework.
It is common ground that liability for intentional
infliction of emotional distress cannot be predicated upon the
ordinary vicissitudes that mar human relationships: "mere insults,
indignities, threats, annoyances, petty oppressions, or other
trivialities" are not enough. Roman v. Trs. of Tufts Coll., 964
N.E.2d 331, 341 (Mass. 2012) (quoting Foley v. Polaroid Corp., 508
N.E.2d 72, 82 (Mass. 1987)). But neither a factfinder nor an
appellate court is obliged to balkanize the defendant's course of
conduct, isolating its component parts and, in the bargain,
minimizing their net effect. See Boyle v. Wenk, 392 N.E.2d 1053,
1055 (Mass. 1979). "Repeated harassment . . . may compound the
outrageousness of incidents which, taken individually, might not
be sufficiently extreme to warrant liability for infliction of
emotional distress." Id. at 1056. Nor can a defendant demand the
benefit of every conceivable doubt. Rather, a jury is "entitled
to put as harsh a face on the actions of the [defendant] as the
basic facts would reasonably allow." Richey v. Am. Auto. Ass'n,
Inc., 406 N.E.2d 675, 678 (Mass. 1980).
In the case at hand, the evidence, taken in the light
most favorable to Dr. Sindi, shows beyond hope of contradiction
that Samia transmitted a series of vicious and extraordinarily
disturbing e-mails and text messages to Dr. Sindi. By way of
- 28 -
illustration, these missives included a December 17, 2011, e-mail
expressing thanks that Dr. Sindi's deceased father was not "alive
to witness the truth about his sinful, selfish, coniving [sic]
Munafika [an Arabic word for hypocrite] of a daughter" as well as
a series of text messages referring to Dr. Sindi as "Hoota [an
Arabic word for little whale] the Sinful Liar," predicting that
Dr. Sindi would "get cancer" because of "the number of people
praying against [her]," declaring that Dr. Sindi would be "exposed"
as a "hypocrite & fraud," and denigrating Dr. Sindi's appearance.
After Dr. Sindi blocked Samia from her telephone in late 2011,
Samia began to travel from her Seattle home to conferences around
the globe where Dr. Sindi was scheduled to speak, handing out
leaflets containing a demeaning image of Dr. Sindi and urging
conference-goers to visit a blog dedicated to besmirching Dr.
Sindi's reputation. Samia even called upon Dr. Sindi's disabled
mother in Saudi Arabia for the purpose of confronting her about
her daughter's misbehavior.
Given these and other incidents, and the more than four-
year long war of vituperation waged by Samia against Dr. Sindi, we
think that the jury supportably could have concluded that Samia's
course of conduct amounted to far more than mere insults,
indignities, and petty oppression. So, too, the jury could
supportably have concluded that Samia, over a long period of time,
displayed a strain of deliberate malevolence that easily qualified
- 29 -
as extreme and outrageous conduct. See Conway v. Smerling, 635
N.E.2d 268, 273 (Mass. App. Ct. 1994).
Samia next contends that Dr. Sindi failed to prove that
her emotional distress was severe. In evaluating this contention,
we recognize that Massachusetts law sets a high bar for proof of
severity. See Kennedy v. Town of Billerica, 617 F.3d 520, 530
(1st Cir. 2010) (noting that "mere 'emotional responses including
anger, sadness, anxiety, and distress' . . . are 'often not legally
compensable'" (quoting Quinn v. Walsh, 732 N.E.2d 330, 338 (Mass.
App. Ct. 2000))). But the length of time that a plaintiff is
forced to endure emotional distress is a highly relevant datum in
determining whether that distress is sufficiently severe to be
compensable. See Homesavers Council of Greenfield Gardens, Inc.
v. Sanchez, 874 N.E.2d 497, 504 (Mass. App. Ct. 2007); Brown v.
Nutter, McClennen & Fish, 696 N.E.2d 953, 957-58 (Mass. App. Ct.
1998). One more wrinkle is worth noting: emotional distress may
be deemed severe even if it does not produce any physical
manifestations. See Cady v. Marcella, 729 N.E.2d 1125, 1131 (Mass.
App. Ct. 2000) (citing Nancy P. v. D'Amato, 517 N.E.2d 824, 827
(Mass. 1988)).
Here, the relentless nature of Samia's pernicious
attacks and the duration of her onslaught weigh heavily in favor
of a finding of severity. Dr. Sindi testified that — beginning in
late 2011 and continuing up to the time of trial — she suffered
- 30 -
great anguish as a result of Samia's harassment. That anguish
manifested itself in divers ways including lost sleep, blinding
headaches, heart palpitations, and fears for her safety. This
constellation of symptoms limited her ability to function.9 On
this record, the jury reasonably could have concluded that Dr.
Sindi's emotional distress was sufficiently severe to justify
recovery.
Samia counters that the verdict must nonetheless be
overturned because Dr. Sindi failed to introduce any medical
testimony in support of her claim. She is wrong: Massachusetts
law allows recovery in emotional distress cases based exclusively
on lay testimony. See, e.g., Poy v. Boutselis, 352 F.3d 479, 485-
86 (1st Cir. 2003) (applying Massachusetts law).
Battling on, Samia asserts that the evidence was
insufficient to establish causation. In this regard, she
emphasizes evidence indicating that Dr. Sindi had been treated for
9 Samia points out that some evidence in the record suggests
that Dr. Sindi's functioning was not impaired. This evidence
includes Dr. Sindi's ambitious travel schedule, her service as a
Saudi government official, and her continued work as a scientist
and entrepreneur during the relevant time frame. In the end,
though, this suggestion boils down to an invitation that we should
weigh conflicting evidence differently than the jury — and that is
an invitation that we must decline. See Trainor, 699 F.3d at 26
(making clear that, on Rule 50 motion, reviewing court must draw
"all reasonable inferences" from the evidence favorably to
nonmovant). It is for the jury, in the first instance, to resolve
conflicts in the evidence and to decide factbound issues on which
reasonable minds may differ. See id.; Agis, 355 N.E.2d at 319.
- 31 -
stress-related conditions prior to 2011. This assertion is
fruitless: "[c]ausation is a factbound issue and, as such, is
normally left to the trier." Limone v. United States, 579 F.3d
79, 99 (1st Cir. 2009) (applying Massachusetts law). This case
falls within the general rule, not within the long-odds exception
to it. For one thing, there was proof of causation-in-fact: given
the duration and persistence of Samia's attacks, the jury had ample
reason to infer that her conduct caused Dr. Sindi's emotional
distress. See Cady, 729 N.E.2d at 1132. For another thing, the
record supports the jury's determination that Dr. Sindi's
emotional distress was the foreseeable result of Samia's years-
long pattern of vilification, thus establishing proximate cause.
See Limone, 579 F.3d at 100.
That is game, set, and match. Beyond her allegations
that Dr. Sindi's harm was not severe and that no causal connection
was sufficiently proven, Samia makes no developed argument that
the damages awarded on this claim are excessive. Consequently, we
treat any such argument as waived. See United States v. Zannino,
895 F.2d 1, 17 (1st Cir. 1990). We therefore conclude that Samia,
in mounting her challenge to the jury verdict on the intentional
infliction of emotional distress claim, is swinging an unstrung
racquet.
- 32 -
V.
The jury found both Samia and Ann liable for tortious
interference with contract and awarded Dr. Sindi jackpot verdicts:
$2,000,000 against Samia and $400,000 against Ann. On post-trial
motions, the district court reduced these awards to $576,000
against Samia and $144,000 against Ann. Dr. Sindi does not take
issue with the reduction of the awards. Samia and Ann, though,
challenge the sufficiency of the evidence supporting the liability
findings and also claim that even the reduced damages amounts are
excessive.
To prevail on a claim for tortious interference with
contract, a plaintiff must prove that she "had a contract with a
third party," which the defendant "knowingly induced the third
party to break." Abramian v. President & Fellows of Harvard Coll.,
731 N.E.2d 1075, 1088 (Mass. 2000). The plaintiff also must prove
that this interference "was improper in motive or means" and caused
her harm. Id. For this purpose, "improper means" may include the
commission of certain common-law torts, such as defamation.
Cavicchi v. Koski, 855 N.E.2d 1137, 1142 (Mass. App. Ct. 2006).
Relatedly, proof of malice directed toward the plaintiff may serve
to establish an improper motive. See id.Samia and Ann do not seriously contest the majority of
these elements. They acknowledge that Dr. Sindi had an employment
contract with the i2 Institute, which entitled her to a $10,000
- 33 -
monthly salary. Given what we already have said, the jury had
more than enough evidence to find that the appellants' interference
with this contract was deliberate — for example, they e-mailed a
stream of defamatory statements about Dr. Sindi to board members
and investors of the i2 Institute — and that the appellants,
sparked by improper motives, employed improper means.
Mindful of these damning facts, Samia and Ann train their
fire on the issue of causation. They point out that Dr. Sindi had
difficulty in recruiting investors for the i2 Institute even before
they began their avalanche of vituperation in 2012, and they
suggest that the Institute would have struggled quite apart from
their meddling. They also suggest that Dr. Sindi stripped the i2
Institute of financial resources by mismanaging its affairs and
insisting that it pay some of her legal expenses.
These suggestions lack force. In the present posture of
the case, we are required to weigh the facts in favor of the
verdicts, and we have no authority to set those verdicts aside
merely because some evidence in the record cuts the other way.
See Sanchez, 37 F.3d at 716. Moreover, our deference to jury
verdicts, great in any event, is magnified where, as here, the
attack on the verdicts relates to causation (which is a matter
"peculiarly within the competence of[] the factfinder"). Peckham
v. Cont'l Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir. 1990)
(applying Massachusetts law and quoting Swift v. United States,
- 34 -
866 F.2d 507, 510 (1st Cir. 1989)). In this instance, there was
more than enough evidence to ground a reasonable inference that
the appellants' defamatory statements drove supporters away from
the i2 Institute and thus caused its financial woes.10
Samia and Ann also argue that the damages awards, even
as reduced by the district court, are excessive. Their principal
point is that the awards should be further reduced to reflect the
i2 Institute's payment of certain of Dr. Sindi's legal bills.
This argument will not wash. While the appellants
introduced evidence that, in 2014, the i2 Institute paid 73,125
Saudi Riyals (approximately $20,000 at the time) to cover certain
of Dr. Sindi's legal expenses, the appellants cited this evidence
to the district court in support of their requests for remittiturs.
We have no reason to believe that the district court did not take
this payment into account when it granted those remittiturs. When
(as in this case) the district court has granted a remittitur, the
scope of judicial review — narrow in any event — becomes even
narrower. See Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir.
1987). After all, a challenge for excessiveness to an already
trimmed jury award requires an appellate court "not merely to grade
the essay, but to grade the teacher's grading of the essay." Id.10While the appellants make passing mention that the verdicts
are against the weight of the evidence, they offer no developed
argumentation on point. Thus, we deem their motion for a new trial
on liability abandoned. See Zannino, 895 F.2d at 17.
- 35 -
The evidence showed that Dr. Sindi was not paid her $10,000 monthly
salary for at least three years and was never reimbursed for
certain i2 Institute expenses that she paid out of her own pocket.
And as the district court observed, the evidence supported a
reasonable inference that Dr. Sindi's "contract with i2 would have
continued for a number of years," thus entitling her to future
lost earnings. Sindi, 2016 WL 5867403, at *6.
In setting the remittitur amounts, the district court
found that the evidence warranted recovery for Dr. Sindi's past
lost earnings from her employment with the i2 Institute (totaling
$360,000), payment of certain out-of-pocket expenses associated
with that employment (totaling roughly $70,000), and her future
lost earnings from the Institute (totaling roughly $290,000). The
court then apportioned the damages to reflect the jury's finding
that Samia was responsible for approximately 80% of Dr. Sindi's
losses. Giving this reasoning due weight, the awards as remitted
are nowhere near "so extravagant as to shock the appellate
conscience." Sanchez, 37 F.3d at 724.
VI.
Samia and Ann next challenge the adverse jury verdicts
on Dr. Sindi's claim for tortious interference with advantageous
relations. To prevail on such a claim, a plaintiff must show that
she had "a present or prospective contract or employment
relationship," that "the defendant knowingly induced a breaking of
- 36 -
the relationship," and that such interference "was improper in
motive or means" and caused her harm. Blackstone v. Cashman, 860
N.E.2d 7, 12-13 (Mass. 2007). Although the plaintiff need not
prove the loss or diminution of a fully formed contract, she must,
at a bare minimum, prove harm to a "probable future business
relationship from which there is a reasonable expectancy of
financial benefit . . . ." Owen v. Williams, 77 N.E.2d 318, 322
(Mass. 1948); see Singh v. Blue Cross/Blue Shield of Mass., Inc.,
308 F.3d 25, 48 (1st Cir. 2002) (applying Massachusetts law).
Mere speculation regarding potential future business
opportunities is insufficient to prove this element. See Singh,
308 F.3d at 48. Rather, there must be competent evidence of a
specific business relationship, the consummation of which was
reasonably likely. See id.; see also Am. Private Line Servs.,
Inc. v. E. Microwave, Inc., 980 F.2d 33, 36 (1st Cir. 1992)
(applying Massachusetts law and holding that plaintiff may prevail
by showing that she was engaged in promising contract negotiations
that were knowingly disrupted by defendant's tortious
interference).
Samia and Ann maintain that the evidence on this claim
was so sparse that the district court was obliged to grant their
motions for judgment as a matter of law. In their view, Dr. Sindi
failed to offer probative evidence of a reasonably likely
relationship between herself and any identified third party with
- 37 -
which they knowingly interfered. We test this premise against the
record.
To be sure, Dr. Sindi testified that certain potential
business partners ceased communicating with her after Samia and
Ann began disseminating their libelous statements. Dr. Sindi
failed, however, to introduce any competent evidence concerning
the content of her negotiations with these third parties, the
details of any potential arrangement, or the likelihood that
(absent tortious interference) such a relationship would come to
pass. When all is said and done, her claim of tortious
interference with advantageous relations is woven entirely out of
gossamer strands of speculation and surmise. It follows that Dr.
Sindi's professed expectancy of financial benefits from these
wholly conjectural relationships was little more than wishful
thinking. Certainly, any such expectancy was not objectively
reasonable. See Singh, 308 F.3d at 48.
There is a further flaw in Dr. Sindi's argument. A
plaintiff who sues for tortious interference with an advantageous
relationship must prove not only that the defendant interfered
with that relationship but also that the defendant did so knowing
of the existence of the relationship. See Bennett v. Saint-Gobain
Corp., 507 F.3d 23, 33 (1st Cir. 2007) (applying Massachusetts
law). Dr. Sindi has not pointed to a shred of evidence showing
that either Samia or Ann was aware of her discussions with any of
- 38 -
the third parties alluded to in her testimony. Because any such
prospective business relationships were unknown to the appellants,
they cannot form the basis for a finding of tortious-interference
liability. See id.; Comey v. Hill, 438 N.E.2d 811, 816 (Mass.
1982).
Dr. Sindi has a fallback position. She posits that the
verdicts on this count can be sustained on the basis that Samia
and Ann knowingly interfered with her relationship with the i2
Institute and, thus, with her expectancy of future financial
benefits from that relationship. The district court seized upon
this rationale: in upholding the jury verdicts on this count
($400,000 against Samia and $100,000 against Ann), the court
theorized that Dr. Sindi had proven an expectancy of future lost
earnings from the i2 Institute. See Sindi, 2016 WL 5867403, at
*6 & n.4.
In the circumstances of this case, the district court's
rationale is untenable. It is black-letter law that a plaintiff's
recovery under one tort theory precludes her from "duplicative
recovery for the same damages under some other tort theory."
Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 383 (1st Cir.
1991); accord Calimlin v. Foreign Car Ctr., Inc., 467 N.E.2d 443,
448 (Mass. 1984). This salutary principle ensures that a plaintiff
injured as a result of the defendant's tortious conduct is made
whole, but is not made more than whole. See Dopp v. HTP Corp.,
- 39 -
947 F.2d 506, 517 (1st Cir. 1991); Szalla v. Locke, 657 N.E.2d
1267, 1271 (Mass. 1995).
That principle is pertinent here. Dr. Sindi prevailed
against Samia and Ann on her claim for tortious interference with
contract. See supra Part V. The damage awards on that count,
post-remittitur, encompassed all of the damages flowing from the
appellants' interference with Dr. Sindi's relationship with the i2
Institute (past, present, and prospective). Indeed, in ordering
remittiturs for tortious interference with contract and capping
the recoverable amounts at a total of $720,000, the district court
made pellucid that these awards included Dr. Sindi's lost earnings
from the i2 Institute both for the period between 2013 and 2015
and for future years (in which her contract ostensibly would have
continued but for the appellants' interference). See Sindi, 2016
WL 5867403, at *6.
That ends this aspect of the matter. Massachusetts law,
as we understand it, will not countenance allowing a plaintiff to
salvage a tort claim by double-counting. Damages already recovered
on one theory cannot be recovered again on another theory. See
Fox v. F & J Gattozzi Corp., 672 N.E.2d 547, 552 (Mass. App. Ct.
1996); see also United States v. Poole, 545 F.3d 916, 920 (10th
Cir. 2008) (Gorsuch, J.).
We summarize succinctly. Dr. Sindi's proof on her claim
for tortious interference with advantageous relations is deficient
- 40 -
in major respects. Most notably, she has failed to prove that she
had a reasonable expectancy of financial benefit from a potential
third-party relationship (other than her relationship with the i2
Institute), with which Samia and/or Ann knowingly interfered. We
therefore reverse the judgments on this count.
VII.
This brings us to the pièce de résistance: the district
court's post-trial grant of a permanent injunction. We set the
stage.
Although the jury found Samia and Ann liable for
defamation, see supra Part III, it returned only general verdicts
on those claims and did not identify any specific statements as
defamatory. During the post-trial proceedings, Dr. Sindi moved
for the entry of a permanent injunction barring Samia and Ann from
republishing, in any medium and in any context, a compendium of
statements.
Based on the evidence adduced at trial, the district
court made some further findings of fact. First, the court found
that six specific statements were false, defamatory, and made with
actual malice and that, absent an injunction, the appellants were
likely to repeat them. The court further stated (albeit without
making any meaningful findings) that Dr. Sindi had shown that she
faced the prospect of irreparable harm. Finally, the court
concluded that the balance of harms favored the issuance of an
- 41 -
injunction and that the public interest would not be threatened by
a grant of injunctive relief. Based on those determinations, the
court entered an order broadly enjoining Samia and Ann from
republishing the six statements in any medium or for any purpose.
Specifically, the injunction (reprinted as part of Appendix B)
enjoined the appellants from "repeating — orally, in writing,
through direct electronic communications, or by directing others
to websites or blogs reprinting" — any of six particular
statements, namely:
1. That Hayat Sindi is an academic and scientific
fraud;
2. That Sindi received awards meant for young scholars
or other youth by lying about her age;
3. That Sindi was fraudulently awarded her PhD;
4. That Sindi did not conduct the research and writing
of her dissertation;
5. That Sindi’s dissertation was "ghost researched"
and "ghost written";
6. That Sindi’s role in the founding of Diagnostics
For All was non-existent, and that Sindi did not
head the team of six people that won the MIT
Entrepreneurship Competition.
On appeal, Samia and Ann question the district court's
authority to issue such an injunction, the breadth of the
injunction, the court's supplemental factfinding, and a miscellany
of other matters incidental to the grant of injunctive relief.
Dr. Sindi submits that the appellants have waived or forfeited
certain arguments pertaining to the injunction's validity and
enforceability. In addition, she defends the injunction in all
its particulars. To sort out these competing claims, we delineate
- 42 -
the scope of our appellate review and thereafter turn to the
appellants' challenges.
A.
In mounting their attack on the injunction, the
appellants rely on conclusory argumentation and, in many respects,
fail to develop relevant points. When a party's contentions "lack
both coherence and development," we ordinarily deem them
procedurally defaulted. Marek v. Rhode Island, 702 F.3d 650, 655
(1st Cir. 2012) (citing Zannino, 895 F.2d at 17). This principle,
sometimes inexactly called the "raise-or-waive rule," is "founded
upon important considerations of fairness, judicial economy, and
practical wisdom." Nat'l Ass'n of Soc. Workers v. Harwood, 69
F.3d 622, 627 (1st Cir. 1995). It is not to be taken lightly. In
the end, though, "[r]ules of practice and procedure are devised to
promote the ends of justice, not to defeat them." Hormel v.
Helvering, 312 U.S. 552, 557 (1941). Since the application of the
so-called raise-or-waive principle is discretionary and non-
jurisdictional, an appellate court may, under exceptional
circumstances, elect to reach unpreserved issues in order to
forestall a miscarriage of justice. See Chestnut v. City of
Lowell, 305 F.3d 18, 21 (1st Cir. 2002) (en banc) (per curiam);
United States v. La Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990).
While recognizing that this exception to the raise-or-
waive principle must be applied sparingly and with great
- 43 -
circumspection, we have not hesitated to invoke it where the
equities of a particular case counsel strongly in favor of such a
step. See Nat'l Ass'n of Soc. Workers, 69 F.3d at 627. In assaying
those equities, we have given substantial weight to considerations
such as whether the inadequately preserved arguments are purely
legal, are amenable to resolution without additional factfinding,
are susceptible to resolution without causing undue prejudice, are
highly convincing, are capable of repetition, and implicate
matters of significant public concern. See id. at 627-28. So,
too, we have taken into account whether the failure to advance an
argument was deliberate or inadvertent. See id.In the case at hand, the propriety of the challenged
injunction turns on purely legal questions. Those questions can
be answered without further factfinding and without causing unfair
prejudice to any party. Moreover, the critical issues are
virtually certain to arise in future defamation cases. See, e.g.,
McCarthy v. Fuller, 810 F.3d 456 (7th Cir. 2015); Kinney v. Barnes,
443 S.W.3d 87 (Tex. 2014); Balboa Island Vill. Inn, Inc. v. Lemen,
156 P.3d 339 (Cal. 2007). To cinch matters, the arguments against
allowing the injunction to stand are quite persuasive; those
arguments touch upon matters of significant public concern; and
the appellants' failure to develop them was apparently careless
rather than deliberate. These factors counsel strongly against a
mechanical application of the raise-or-waive principle. See
- 44 -
Gencarelli v. UPS Capital Bus. Credit, 501 F.3d 1, 8 (1st Cir.
2007).
Our dissenting brother questions this conclusion, noting
that the Supreme Court has never directly addressed the
constitutionality of a post-trial injunction involving a
previously defamed public figure. See post at 79-80. He seems to
suggest that the absence of a Supreme Court opinion directly on
point somehow militates against considering the appellants'
defaulted arguments. This suggestion overlooks that the answer to
a legal question may be clear even without a precedent on all
fours. Cf. United States v. Morales, 801 F.3d 1, 10 (1st Cir.
2015) (stating that a court may plainly err, even in the "absence
of a decision directly on point"). And in any event, the
constitutional question that we confront is virtually certain to
be litigated in future cases — a factor that weighs in favor of
reaching the merits. See La Guardia, 902 F.2d at 1013.
The dissent also suggests that the appellants' failure
to develop certain arguments against the legality of the permanent
injunction was deliberate rather than inadvertent. See post at
76-77. We do not agree. Although the appellants were admittedly
careless in framing their objections, they never expressly
abandoned arguments such as the patent failure of the injunction
to satisfy strict scrutiny; they simply overlooked these
- 45 -
objections while challenging the injunction on other grounds. This
was not good lawyering — but a lawyer's failure to articulate an
argument does not amount to a deliberate abandonment of that
argument. See United States v. Ortiz, 741 F.3d 288, 293 (1st Cir.
2014) (finding forfeiture, not waiver, when appellant failed "to
articulate his best argument" and left the trial court "in the
dark as to that argument").
Nor is there any real risk of unfair surprise. Both in
her initial brief and in her oral presentation to this court, Dr.
Sindi anticipated virtually all of the arguments against the
injunction and attempted to explain why those arguments lacked
merit. In addition, she has had the opportunity in her
supplemental briefing to address our concerns about the
injunction. Since Dr. Sindi has fully availed herself of the
chance to expound upon whatever legal arguments she may wish to
pursue, no cognizable prejudice would flow from excusing the
appellants' procedural default. See Singleton v. Wulff, 428 U.S.
106, 120 (1976).
The fact that the appellants are challenging an
injunction is itself a factor that cuts in favor of relaxing strict
rules of preclusion and considering inadequately preserved
arguments. After all, it is well-settled that, upon due notice,
a court may dissolve an injunction sua sponte (even in the absence
- 46 -
of objections from the party enjoined) when the injunction is no
longer equitable or consistent with the public interest. See Moore
v. Tangipahoa Par. Sch. Bd., 864 F.3d 401, 407 (5th Cir. 2017);
Armstrong v. Brown, 768 F.3d 975, 980 (9th Cir. 2014). Because an
injunction is "an extraordinary remedy never awarded as of right,"
Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008); see
Weinberger v. Romero-Borcelo, 456 U.S. 329, 311-12 (1982), no one
can expect that the terms of an injunction will persist in
perpetuity. Indeed, any such expectation would be inconsistent
with the verity that courts have the "continuing duty and
responsibility to assess" an injunction's "efficacy and
consequences." Brown v. Plata, 563 U.S. 493, 542 (2011).
Consistent with this imperative, courts have excused procedural
defaults and grappled with arguments against injunctions that
implicate issues of "constitutional magnitude," even when those
arguments were unpreserved. Real Estate Bar Ass'n for Mass., Inc.
v. Nat'l Real Estate Info Servs., 608 F.3d 110, 125-26 (1st Cir.
2010); see Schlesinger v. Councilman, 420 U.S. 738, 740, 743 (1975)
(considering unpreserved arguments against injunction that touched
upon "proper relationship between the military justice system" and
Article III courts); Younger v. Harris, 401 U.S. 37, 40-41, 46
(1971) (vacating injunction that violated "fundamental policy
against federal interference with state criminal prosecutions,"
- 47 -
notwithstanding petitioners' failure to raise argument in opening
submissions).
The challenged injunction falls squarely into this
category of cases. The omitted arguments implicate a court's
limited authority, consistent with its equitable jurisdiction and
the First Amendment, to enjoin speech. This is an area of
considerable constitutional concern, and one that has major
institutional implications for the federal judiciary. Moreover,
our ongoing duty to review the efficacy and consequences of an
injunction takes on special importance in the First Amendment
context: because such an injunction carries significant "risks of
censorship and discriminatory application," the Supreme Court has
directed judges to scrutinize injunctions restricting speech
carefully and ensure that they are "no broader than necessary to
achieve [their] desired goals." Madsen v. Women's Health Ctr.,
512 U.S. 753, 764-65 (1994).
The bottom line is that this case calls for an exception
to the usual rule: it arrives on our doorstep in a posture that
allows us, in the exercise of our discretion, to consider
inadequately preserved arguments against the challenged
injunction. Given the special importance of the issues surrounding
the injunction and the other factors that we have mentioned, we
conclude that a mechanical application of the raise-or-waive
- 48 -
principle would work a miscarriage of justice. Under these
exceptional circumstances, we look past the infirmities in the
appellants' briefing and proceed to consider all the available
arguments affecting the validity and enforceability of the
injunction, regardless of whether some of those arguments may have
been forfeited.
B.
As a general matter, the First Amendment forbids the
government, including the Judicial Branch, "from dictating what we
see or read or speak or hear." Ashcroft v. Free Speech Coal., 535
U.S. 234, 245 (2002). The question that remains in this case is
whether the district court offended the First Amendment by
enjoining the appellants from republishing, orally or in writing,
any of six statements that they previously had employed to defame
Dr. Sindi. Some courts have adopted the view that an injunction
against future speech following a defamation trial may be
consistent with the First Amendment. See, e.g., Lothschuetz v.
Carpenter, 898 F.2d 1200, 1208-09 (6th Cir. 1990) (Wellford, J.,
for the court in part); Lemen, 156 P.3d at 349. Others, though,
have expressed deep skepticism, suggesting that such a remedy is
per se unconstitutional. See, e.g., Fuller, 810 F.3d at 464-66
(Sykes, J., concurring); Kinney, 443 S.W.3d at 89, 94; see also
Erwin Chemerinsky, Injunctions in Defamation Cases, 57 Syracuse L.
- 49 -
Rev. 157, 158 (2007). Although the Supreme Court once granted
certiorari to resolve this conundrum, it disposed of the case on
less controversial grounds, leaving the constitutional question
open. See Tory v. Cochran, 544 U.S. 734, 737-38 (2005).
We need not decide today the broader question of whether
the First Amendment will ever tolerate an injunction as a remedy
for defamation. In all events, "courts should not rush to decide
unsettled issues when the exigencies of a particular case do not
require such definitive measures," Privitera v. Curran (In re
Curran), 855 F.3d 19, 22 (1st Cir. 2017) — and this is such a case.
Consistent with our prudential practice of forgoing broad
constitutional holdings unless such holdings are unavoidable, see
Hudson Sav. Bank v. Austin 479 F.3d 102, 106 (1st Cir. 2007); El
Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 494 (1st Cir. 1992),
we decide the issues concerning the validity and enforceability of
the challenged injunction on narrower grounds. The injunction
cannot survive the strict scrutiny required to legitimize a prior
restraint, principally because of its failure to account for
contextual variation. Therefore, the injunction must be vacated.11
11
Although the appellants have not adequately developed a
separate argument concerning the legality of the injunction under
the Massachusetts Declaration of Rights, see supra n.4, it is worth
noting that Massachusetts courts have harbored doubts regarding
the appropriateness of injunctions in defamation cases, see
Krebiozen Research Found. v. Beacon Press, Inc., 134 N.E.2d 1,6
(Mass. 1956) ("It is apparent that the constitutional protection
- 50 -
We start this phase of our analysis by rehearsing
abecedarian principles of equity. A court may not issue a
permanent injunction unless, among other things, "remedies
available at law, such as monetary damages, are inadequate to
compensate for" an "irreparable injury." eBay, Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391 (2006).12 Moreover, such
an injunction must be "no more burdensome to the defendant than
necessary to provide complete relief to the plaintiffs." Madsen,
512 U.S. at 765 (quoting Califano v. Yamasaki, 442 U.S. 682, 702
(1979)). Although we review the issuance of a permanent injunction
for abuse of discretion, see eBay, 547 U.S. at 391, we perform
this task mindful of our unflagging "obligation to 'make an
of free speech and public interest in the discussion of many issues
greatly limit . . . the power to give injunctive relief . . . in
defamation cases."); cf. Nyer v. Munoz-Mendoza, 430 N.E.2d 1214,
1217 (Mass. 1982) (suggesting, in dictum, that "even allegedly
false and defamatory statements are protected from prior
injunctive restraint by the First Amendment and art. 16" of the
Massachusetts Declaration of Rights).
12The amicus posits that Massachusetts law, not federal law,
should govern with respect to the motion for a permanent
injunction. This point of view raises a nuanced question
implicating the Erie doctrine, see Erie, 304 U.S. at 78, but it is
a question that we can safely bypass. For one thing, no party has
objected to the district court's decision to apply the federal
standard. For another thing (and relatedly), it is settled that
an amicus "cannot introduce a new argument into a case." United
States v. Sturm, Ruger & Co., 84 F.3d 1, 6 (1st Cir. 1996).
Finally, nothing appears to turn on this point: Massachusetts law
and federal law seem to place substantially similar burdens on a
party seeking a permanent injunction. See Kenyon v. City of
Chicopee, 70 N.E. 2d 241, 244 (Mass. 1946).
- 51 -
independent examination of the whole record' in order to make sure
that 'the judgment does not constitute a forbidden intrusion on
the field of free expression,'" Bose Corp., 466 U.S. at 499(quoting N.Y. Times Co., 376 U.S. at 284-86); accord Metro. Opera
Ass'n, v. Local 100, Hotel Emps. & Rest. Emps. Int'l Union, 239
F.3d 172, 176 (2d Cir. 2001).
The injunction issued in this case, which prohibits the
appellants from republishing six particular statements, is a
paradigmatic example of a prior restraint: it is a "judicial
order[] forbidding certain communications . . . issued in advance
of the time that such communications are to occur." Alexander v.
United States, 509 U.S. 544, 550 (1993) (emphasis in original)
(citation omitted). As such, it is subject to even more exacting
requirements under settled First Amendment doctrine.13 See Tory,
544 U.S. at 738 (treating post-trial injunction against
13 The district court, relying on precedent from the
California Supreme Court, see Lemen, 156 P.3d at 343, concluded
that the challenged injunction was not a prior restraint because
it followed a finding of defamation liability at trial and,
therefore, was not presumptively unconstitutional, see Sindi v.
El-Moslimany, No. 13-cv-10798, 2016 U.S. Dist. LEXIS 110021, at
*1-2 (D. Mass. Aug. 18, 2016). We do not agree. The California
Supreme Court's approach impermissibly conflates "the question of
whether the injunction is a prior restraint with the issue of
whether the injunction should be allowed." Chemerinsky, supra, at
165; accord Kinney, 443 S.W.3d at 93. Consistent with this view,
Dr. Sindi (in her supplemental briefing) concedes that the
challenged injunction is a prior restraint. She also concedes
that the appropriate level of scrutiny is strict scrutiny.
- 52 -
republication of previously defamatory statements as prior
restraint).
There is a strong presumption that prior restraints on
speech are unconstitutional. See N.Y. Times Co. v. United States,
403 U.S. 713, 714 (1971) (per curiam). So drastic a remedial
device may only be imposed when it furthers "the essential needs
of the public order." Carroll v. President & Comm'rs of Princess
Anne, 393 U.S. 175, 183 (1968). A prior restraint cannot be
imposed when those needs can be achieved through less restrictive
means. See id. at 183-84; see also Tory, 544 U.S. at 738. And
even when a prior restraint may theoretically be permissible, the
decree that embodies it must be precisely tailored both to meet
the exigencies of the particular case and to avoid censoring
protected speech. See Carroll, 393 U.S. at 183-84. In the last
analysis, a party who seeks a remedy in the form of a prior
restraint must establish that the "evil that would result from"
the offending publication is "both great and certain and cannot be
mitigated by less intrusive measures." CBS, Inc. v. Davis, 510
U.S. 1315, 1317 (1994) (Blackmun, J., in chambers) (citing Neb.
Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976)); see In re Goode,
821 F.3d 553, 559 (5th Cir. 2016); Cty. Sec. Agency v. Ohio Dep't
of Commerce, 296 F.3d 477, 485 (6th Cir. 2002); Levine v. U.S.
Dist. Ct., 764 F.2d 590, 595 (9th Cir. 1985). Consequently, a
prior restraint on speech must survive the most exacting scrutiny
- 53 -
demanded by our First Amendment jurisprudence. See Stuart, 427
U.S. at 559.
Such intensive scrutiny is warranted because an
animating purpose of the First Amendment was to create a bulwark
against previous restraints upon speech. See Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 713 (1931). Since "the line between
legitimate and illegitimate speech is often so finely drawn," we
"prefer[] to punish the few who abuse rights of speech after they
break the law than to throttle them and all others beforehand."
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975) (emphasis
in original). Thus, prior restraints are regarded as "the most
serious and the least tolerable infringement on First Amendment
rights." Stuart, 427 U.S. at 559.
The operation of the collateral bar rule compounds the
grave perils posed by prior restraints. This rule requires that
an injunction be followed upon pain of contempt until modified or
vacated, and the unconstitutionality of the injunction typically
does not justify a refusal to obey it. See Metro. Opera Ass'n,
239 F.3d at 176 (citing Walker v. Birmingham, 388 U.S. 307, 314-
21 (1967)). It follows that once an injunction in the nature of
a prior restraint issues, the harm is "immediate and irreversible."
Stuart, 427 U.S. at 559.
- 54 -
In this case, Dr. Sindi argues that the challenged
injunction comports with the First Amendment because the six
statements were previously employed to defame her and, thus, no
longer constitute protected speech. This argument has some
superficial appeal: an injunction against speech sometimes may
pass constitutional testing if it follows an adjudication that the
expression is unprotected, and the injunction itself is narrowly
tailored to avoid censoring protected speech. See Pittsburgh Press
Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390
(1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55 (1973).
For instance, the Supreme Court has approved a permanent injunction
against the distribution of specific booklets "found after due
trial to be obscene," where the injunction did not extend to
"matters not already published and not yet found to be offensive."
Kingsley Books, Inc. v. Brown, 354 U.S. 436, 437, 445 (1957); cf.
Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993)
(setting forth similar proposition in dictum). The analogy that
Dr. Sindi draws to Kingsley Books is tempting because (in the idiom
of the First Amendment) obscenity — like defamation — is a category
of unprotected speech. See Free Speech Coal., 535 U.S. at 245-
46.
In the end, though, Dr. Sindi's proffered analogy
glosses over significant distinctions between obscenity and
defamation that make injunctions of obscene communications less
- 55 -
problematic in constitutional terms. The obscenity doctrine
proscribes specific expressive works (such as books or movies)
that appeal to prurient interests, depict sexual behaviors in
patently offensive ways, and lack "serious literary, artistic,
political, or scientific value." Miller v. California, 413 U.S.
15, 24 (1973). Works adjudged obscene — such as the booklets in
Kingsley Books — are immutable forms of expression. Hence, the
permanent injunction there could be carefully crafted to ensure
that it applied only to the specific publications found obscene
without exposing the bookseller to contempt sanctions for
distributing other publications that might be protected under the
First Amendment. See Kingsley Books, 354 U.S. at 445.
An injunction that prevents in perpetuity the utterance
of particular words and phrases after a defamation trial is quite
a different matter. By its very nature, defamation is an
inherently contextual tort. See Greenbelt Coop. Publ'g Ass'n v.
Bresler, 398 U.S. 6, 13-14 (1970); Piccone v. Bartels, 785 F.3d
766, 772 (1st Cir. 2015); cf. United States v. Alvarez, 567 U.S.
709, 719 (2012) (plurality opinion) (noting that defamation
entails not merely a "false statement," but a "legally cognizable
harm associated with a false statement"). Words that were false
and spoken with actual malice on one occasion might be true on a
different occasion or might be spoken without actual malice. What
is more, language that may subject a person to scorn, hatred,
- 56 -
ridicule, or contempt in one setting may have a materially
different effect in some other setting.14 Cf. Pittsburgh Press,
413 U.S. at 390 (sustaining injunction where court was not required
"to speculate as to the effect of publication").
The cardinal vice of the injunction entered by the
district court is its failure to make any allowance for contextual
variation. Refined to bare essence, it enjoins Samia and Ann from
repeating certain words, regardless of their purpose in employing
them. Consequently, the injunction "sweeps . . . more broadly
than necessary" by prohibiting the appellants from engaging in
speech about a public figure "before an adequate determination
that it is unprotected by the First Amendment." Id.For instance, the injunction precludes the appellants
from restating that Dr. Sindi "is an academic and scientific
14
For example, a criminal suspect once sued a newspaper for
defamation over its report that he had been arrested "after
assaulting a police officer . . . ." Foley v. Lowell Sun Publ'g
Co., 533 N.E.2d 196, 196 (Mass. 1989). Though the plaintiff
insisted that this amounted to a false accusation that he had
committed assault, the Massachusetts Supreme Judicial Court
disagreed after reviewing the allegedly defamatory sentence in the
context of the entire article. See id. at 197. Among other
things, the headline made clear that the plaintiff had only been
"charged with assaulting [the] officer," and the story repeatedly
employed cautionary language. Id. (emphasis in original); see id.
at 199 (reporting that the plaintiff committed the assault,
"according to police"). Once the statement was "read in the
context of the article as a whole, its clear meaning [was] to
report" the plaintiff's arrest, not to accuse him of committing
assault. Id. at 197. Since it was undisputed that the plaintiff
had been arrested, the statement was not actionable.
- 57 -
fraud." Although the appellants have in the past used those words
with actual malice (or so the district court supportably found),
there are a number of future contexts in which their repetition of
this statement might be protected speech. We offer three examples:
 If, say, Samia or Ann learns in the future of fraud
actually perpetrated by Dr. Sindi and accurately reports
it, the speaker would face contempt sanctions under the
injunction even though the right to disseminate truthful
information about public figures lies at the core of the
First Amendment. See N.Y. Times Co., 376 U.S. at 270.
 If, say, Samia or Ann were interviewed by a reporter and
asked what speech the challenged injunction prevented
them from repeating, a reply to the effect that, "I am
not allowed to state that Dr. Sindi is an academic and
scientific fraud" would subject the speaker to contempt
sanctions notwithstanding the truth of the reply.
 Perhaps most remarkably, the appellants would face
contempt sanctions for disseminating a letter describing
their accusations and apologizing for them.
The list of contextual permutations is virtually endless. The
situations that we have described are but a few of the possible
examples that show, beyond hope of peradventure, that the
- 58 -
challenged injunction is neither narrowly tailored nor precisely
fitted to the circumstances of the case.
As framed, the injunction is so wide-ranging and devoid
of safeguards that it plainly contravenes the First Amendment's
limitation of liability for speech about public figures to false
assertions of fact made with actual malice. See Hustler Magazine,
Inc. v. Falwell, 485 U.S. 46, 56 (1988). We conclude, therefore,
that the injunction punishes future conduct that may be
constitutionally protected, see Conrad, 420 U.S. at 559, and thus
fails the First Amendment requirement that it be "tailored as
precisely as possible to the exact needs of the case," Carroll,
393 U.S. at 184.
In an effort to blunt the force of this reasoning, our
dissenting brother defends the injunction on the ground that,
should the appellants choose to republish any of the six statements
for a non-defamatory purpose, they may move to modify the
injunction in light of changed circumstances. See post at 89-90.
To support this defense, he relies on the California Supreme
Court's dictum surmising that a defamation defendant's ability to
move to modify an injunction alleviates any concern that the
injunction may penalize or chill constitutionally protected
speech. See Lemen, 156 P.3d at 353. But this is little more than
a hopeful improvisation: neither our dissenting brother nor the
- 59 -
California Supreme Court identifies any other First Amendment
precedent supporting this extraordinary proposition. In light of
a court's power to levy contempt sanctions (up to and including
imprisonment) for disobedience under the collateral bar rule, see
Walker, 388 U.S. at 314-21, "the right to free speech should not
lightly be placed within the control of a single man or woman,"
Madsen, 512 U.S. at 793 (Scalia, J., concurring in part and
dissenting in part). A decree that requires a judicial permission
slip to engage in truthful speech is the epitome of censorship.
See Near, 283 U.S. at 713; Kinney, 443 S.W.3d at 98; see also
Chemerinsky, supra, at 172. To make a bad situation worse, the
appellants would bear the burden of pointing to changed
circumstances in any proceeding to modify the injunction. See
Horne v. Flores, 557 U.S. 433, 447 (2009). Such a circumstance
would be repugnant to the First Amendment, which requires a public-
figure plaintiff, not the defendant, to prove actual malice and
falsity. See Gertz, 418 U.S. at 342.
The dissent attempts to analogize this case to Madsen
and Schenck v. Pro-Choice Network of Western New York, 519 U.S.
357 (1997). See post at 84-89. With respect, this attempted
analogy does not work. In those cases, the Supreme Court partially
sustained injunctions against protest activities near abortion
clinics. The Court concluded that neither injunction was a prior
restraint and, therefore, neither was presumptively
- 60 -
unconstitutional. See Schenck, 519 U.S. at 374 n.6; Madsen, 512
U.S. at 763 n.2, 766. The Court's rationale is instructive. It
emphasized that the injunctions were content-neutral and left
"alternative channels of communication" available to the anti-
abortion protesters. Schenck, 519 U.S. at 374 n.6. The protesters
"remain[ed] free to espouse their message," so long as they were
outside the buffer zone delineated by the injunctions. Id. at
385; see Madsen, 512 U.S. at 763 n.2.
The injunction here is quite different. As Dr. Sindi
acknowledges, it is not content-neutral. This is significant
because the Supreme Court has found Madsen inapposite when — as in
this case — the defendant was exposed to liability based on "what
[it] said." Snyder v. Phelps, 562 U.S. 443, 457 (2011). What is
more, the challenged injunction forbids the appellants from ever
republishing the six statements about Dr. Sindi, regardless of the
forum or the purpose. As such, it does not leave open alternative
channels of communication. Seen in this light, the injunction
must withstand strict scrutiny (as Dr. Sindi concedes) and, thus,
is presumptively unconstitutional.
When all is said and done, we need not answer the vexing
question of whether a federal court may ever permanently enjoin
republication of ad hoc oral or written statements on the ground
that those statements will be defamatory if made anew. Similarly,
- 61 -
we take no view of the legality of an injunction ordering "the
removal or deletion of speech that has been adjudicated
defamatory," such as a decree requiring the erasure of a statement
from a website after an adjudication that the statement was
"unprotected in the context in which it was made." Kinney, 443
S.W.3d at 89, 93, 99 (upholding such an injunction and explicating
the "legally cogent division between mandatory injunctions calling
for the removal of speech that has been adjudicated defamatory and
prohibitive injunctions disallowing its repetition").
To say more would be to paint the lily. The First
Amendment requires that less intrusive remedies be unavailable
before injunctive relief can be considered and that any injunction
be as narrowly tailored as possible to avoid censoring protected
speech. See Carroll, 393 U.S. at 183-84. Because the challenged
injunction cannot conceivably survive this strict scrutiny, it
must be vacated.15
15For the sake of completeness, we note that the injunction
appears to suffer from other defects, including the absence of any
detailed findings regarding the adequacy of remedies at law (a
sine qua non for injunctive relief). See eBay, 547 U.S. at 391.
This omission is especially troublesome in light of the strong
presumption that damages are an adequate remedy for a defamation
plaintiff. See Metro. Opera Ass'n, 239 F.3d at 177; Organovo
Holdings, Inc. v. Dimitrov, 162 A.3d 102, 117 & n.67, 119 (Del.
Ch. 2017).
We also note that our holding eliminates any necessity for us
to pass upon the appellants' other challenges to the injunction,
including their contention, clearly articulated for the first time
- 62 -
VIII.
We summarize succinctly. The evidence in this case tells
a tawdry tale of two women who let their antipathy for a third
woman lead them into inexcusable behavior. The jury supportably
found that this course of conduct was tortious in several respects,
and its assessment of damages on those counts, as refined by the
able district judge, passes muster. The post-trial injunction,
though, is a bridge too far: it cannot survive the strict scrutiny
that the First Amendment demands of prior restraints on speech.
Even the bad behavior exhibited by the appellants cannot justify
crossing well-established constitutional lines.
We need go no further. For the reasons elucidated above,
we affirm the judgment of the district court with respect to the
claims of defamation, intentional infliction of emotional
distress, and tortious interference with contract. We reverse the
judgment with respect to the claim for tortious interference with
advantageous relations. Finally, we vacate the post-trial
injunction improvidently issued by the district court. All parties
shall bear their own costs.
So ordered.
— Separate Opinion Follows —
at oral argument in this court, that the Seventh Amendment bars
the injunction because the jury returned only a general verdict.
- 63 -
BARRON, Circuit Judge, concurring in part and dissenting
in part. There is no more basic First Amendment principle than
that the government may not restrain speech in advance of its
expression simply because it may cause offense. We must be
cautious, therefore, before we uphold an injunction, like the one
before us, that bars the expression of certain specific statements
due to the harm that they may cause. At the same time, there are
few more basic principles of adjudication than that "if it is not
necessary to decide more, it is necessary not to decide more."
PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts,
J., concurring). In my view, the majority, by seeking to vindicate
the first principle, gives insufficient attention to the second.
The result is that the majority strikes down this
injunction by unnecessarily announcing a broad constitutional
rule. Under that rule, it would appear that a lower court may not
enjoin a recidivist defamer from using particular words, even when
he has been properly found to have repeatedly used those same words
in the past to defame the party that seeks the injunction and even
when he has been found to be likely to do so again absent the
injunction.
This result follows from the majority's decision to
subject such an injunction to strict First Amendment scrutiny.
The majority applies that demanding form of review because it
treats such an injunction as a presumptively unconstitutional
- 64 -
prior restraint. And the majority then strikes down this
injunction under such scrutiny because it fails to require proof
of actual defamation in order to show its violation. See Maj. Op.
at 50-62.16
In adopting this constitutional rule, the majority makes
the following equation. It treats a specific, tailored means of
stopping the recurrence of speech that the First Amendment does
not protect as if it were a regulation designed to stop the initial
expression of protected speech due to the offense that it may
cause.
The decision to make this equation fits uncomfortably
with our own circuit's precedent. It also conflicts with the only
precedents that have decided the issue under the First Amendment.
And, finally, it creates tension with Supreme Court rulings that
afford lower courts significant discretion to enjoin parties from
resuming their unprotected and unlawful expressive conduct.
16
The majority at times relies on precedents that apply
something less than strict scrutiny, which requires that a
regulation of speech be "the least restrictive means of achieving
a compelling state interest." McCullen v. Coakley, 134 S. Ct.
2518, 2530 (2014). For example, the majority relies on the
constitutional test described in Carroll v. President &
Commissioners of Princess Anne, 393 U.S. 175 (1968). See Maj. Op.
at 59, 62. But, in Madsen v. Women's Health Center, Inc., 512
U.S. 753 (1994), the Supreme Court described the Carroll test as
no different from the one applied in Madsen, id. at 767, which the
Supreme Court distinguished from strict scrutiny, id. at 762-64,
and which the majority here distinguishes from the form of "strict
scrutiny" that it asserts applies. Maj. Op. at 61.
- 65 -
The majority's rule also gives rise to significant
practical concerns. We live in a world in which defamation
campaigns may reach millions in an instant and essentially for
free. Injunctions crafted in general terms to conform to the
majority's rule risk inviting obstinate and proven defamers to
resume their defamatory campaigns by wagering that their victims
will lack the energy to enforce an injunction that requires them
to prove actual defamation all over again.
In light of these concerns, I cannot sign on to the
majority's rule, whatever its ultimate merits. And that is
because, in my view, there is no need to announce it. The enjoined
parties never timely made the debatable federal constitutional
arguments on which the majority relies.
Nor can I sign on to the decision to vacate this
injunction. The only other argument that the majority suggests
could be a ground for vacating it, which challenges the District
Court's finding that Sindi would suffer irreparable harm absent
this injunction, see id. at 62 n.15, also was not properly raised
by the defendants either below or on appeal. And the arguments
that the defendants did properly present to us in challenging the
injunction lack merit.
For these reasons, although I fully join the majority's
thorough and persuasive analysis in Parts I through VI of its
opinion, I dissent from Part VII.
- 66 -
I.
To explain my concerns, I first review how this
injunction came to be. I then describe the limited reach of the
grounds for striking it down that the defendants timely made.
Finally, I explain that this is not a case in which we should make
an exception to our usual "raise-or-waive" requirement. Nat'l
Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).
A.
The plaintiff, Hayat Sindi, came to federal court to
seek relief from the defendants' five-year defamatory campaign.
She successfully made her defamation case to a jury, which awarded
her a multi-million dollar verdict.
Nevertheless, Sindi was concerned that the defendants
would not be deterred. She therefore sought a permanent injunction
to prohibit them from making the statements that she alleged they
had been making to defame her in the five years preceding her suit.
Absent such an injunction, Sindi argued, she would suffer
irreparable harm to her "reputation, business dealings, and
emotional well-being" because the defendants would pick up where
they had left off.
After hearing from the parties, the District Court
issued a narrowed injunction that encompassed only six of the
twenty-six statements that Sindi initially had sought to enjoin.
In doing so, the District Court found that the defendants clearly
- 67 -
had used the six statements to defame Sindi, resulting in
irreparable harm to her, and that, absent the narrowed injunction,
the defendants would likely continue to do so.17
Significantly, the defendants never made a peep
-- either below or in their opening and reply briefs on appeal
-- that indicated that they wanted to use the six statements in
different contexts from those in which they had used them in the
past. The defendants also did not meaningfully dispute -- either
below or on appeal -- that they were likely to repeat the
statements in that same way.18
Nor did the defendants argue that Sindi had failed to
show that only an injunction, as opposed to a damages award, would
be a sufficient remedy for any harm that she would suffer from the
defendants' continuing to use the statements as they had. Rather,
below, the defendants initially argued that she would not suffer
17
To support this finding, the District Court pointed to
Sindi's evidence showing that the defendants "continued their
libelous campaign even up to the night before trial began" and
that at trial they then "both admitted under oath that they
intended to continue their defamatory campaign in the future." In
addition, the District Court reasoned that, "[e]ven following a
jury award of $3,500,000 in damages, [the defendants'] opposition
to the motion for [a] permanent injunction speaks only to their
purported right to make the statements and the court's purported
lack of authority to enjoin the conduct, but offers no assurances
that they will voluntarily stop their tortious conduct."
18
The defendants' counsel did represent, in response to a
question from the District Court at the hearing on the proposed
injunction, that "it is not their intention to continue making
these statements." But, he offered no evidence, and he conceded
that the testimony at trial was to the contrary.
- 68 -
such irreparable harm because their past communication of the
statements had not actually harmed Sindi. And, on appeal, the
defendants then abandoned even that limited challenge to the
finding of irreparable harm that the District Court had ended up
making.
The defendants did contend throughout this litigation
that the proposed injunction violated the First Amendment. But,
they did so by contending only that an injunction that barred the
future expression of the six statements could not possibly be a
valid prophylactic means of stopping their defamatory conduct
going forward because: (1) the jury had returned a general verdict
and thus did not expressly find that each of the statements
encompassed by the injunction had been made in a defamatory manner
in the past and (2) the evidence presented to the jury was, in any
event, too weak to have permitted a jury to have so found.
The defendants thus never suggested at any point that
strict scrutiny (or even heightened review) applied to the
injunction insofar as it was properly predicated on findings that
the defendants had engaged in prior defamation through their use
of those statements.19 Nor did the defendants argue that such a
19In the District Court, the defendants did appear to attack
the enjoining of a libel under Massachusetts law. But, whether
this injunction may issue under Massachusetts common law and the
Massachusetts Constitution is among the issues that the defendants
have failed to preserve, as the majority recognizes. See Maj. Op.
at 50 n.11. In any event, any such state-law-based argument is
- 69 -
properly predicated injunction would be an impermissible prior
restraint under the First Amendment.
At oral argument on appeal, the defendants' counsel (who
was not trial counsel) did attempt to argue for the first time,
and despite the defendants' previous assertions to the contrary,
the following: The injunction was a prior restraint that violated
the First Amendment because it enjoined the defendants from
repeating the six statements regardless of the context in which
they might be communicated in the future. But, even then the
defendants' counsel did not directly contend that strict scrutiny
applied. And, when asked if the defendants had made that argument
in their briefs on appeal, he conceded: "No, not the contextual
argument."
Thus, based on the only two arguments that the defendants
properly presented to us -- namely, that the injunction encompassed
statements that no jury had found to be defamatory and that, on
the record established at trial, no adjudicator could so find -- we
have no reason to vacate this injunction. As Sindi persuasively
shows, and the majority does not dispute, neither argument has
merit.
not clearly supported by the state precedent brought to our
attention by the amicus, which precedent the majority observes
merely raises "doubts" about the propriety under Massachusetts law
of an injunction of the kind before us but does not categorically
preclude its issuance. See id.- 70 -
The defendants do not adequately explain why the First
Amendment bars the District Court from issuing this injunction
simply due to the absence of a special verdict by the jury, given
that the District Court supportably found that the defendants
defamed Sindi in the past with each of the six enjoined statements
and that the defendants would likely continue to do so.20 The
defendants also fail to show that the record cannot support the
District Court's finding that the defendants had used each enjoined
statement to defame Sindi.
B.
Nonetheless, the majority does vacate the injunction.
It does so by relying on a ground that the defendants did not
properly raise either below or on appeal: that this injunction is
a presumptively unconstitutional prior restraint that is subject
to strict scrutiny, which it flunks because it enjoins particular
statements regardless of the context in which they are used. See
Maj. Op. at 50-62.
The majority acknowledges that its decision to rely on
this defaulted argument is most unusual. See id. at 43. Under
our "raise-or-waive" rule, which we ordinarily apply with "a near-
religious fervor," the defendants would have to "forever . . .
20 As the majority notes, the defendants did not develop a
timely Seventh Amendment challenge to issuing the injunction
absent a special verdict by the jury. Maj. Op. at 62 n.15.
- 71 -
hold their peace" with respect to that argument. Nat'l Ass'n of
Soc. Workers, 69 F.3d at 627 (failure to raise below); accord
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (failure
to raise on appeal). And, the majority recognizes, see Maj. Op.
at 43, there is good reason to enforce that "raise-or-waive"
requirement strictly, as it serves important "systemic ends,"
Nat'l Ass'n of Soc. Workers, 69 F.3d at 627, by incentivizing
parties to make arguments in a timely way and by ensuring that
like cases are treated alike.
The majority nevertheless suggests that because this
case involves a regulation of speech crafted by a federal court,
there is reason to relax our usual "raise-or-waive" rule. See
Maj. Op. at 46-47. But, the majority does not rule that the
District Court lacks equitable jurisdiction to impose this remedy.
See id. at 61. And I see no reason to encourage parties to assume
that, in general, they need not be as diligent in pressing their
personal constitutional rights in challenging court-crafted
injunctions as we routinely require criminal defendants to be in
challenging court-crafted sentences.21
21 The injunction cases on which the majority relies do not
suggest otherwise. See Maj. Op. at 47. In two of them, the
Supreme Court on its own raised arguments that the parties had not
pressed only because the equitable jurisdiction of the federal
courts was at issue. See Schlesinger v. Councilman, 420 U.S. 738,
743-44, 753-61 (1975); Younger v. Harris, 401 U.S. 37, 40, 43-54
(1971). But, here, the majority assumes (without deciding) that
the District Court did have equitable jurisdiction to issue the
- 72 -
Moreover, to the extent that the majority is inclined to
relax our "raise-or-waive" rule in this case, I certainly see no
reason to reach the prior restraint/strict scrutiny issue. The
majority itself suggests that the injunction could be
independently invalidated on the far narrower ground that the
record does not support the District Court's finding that the
injunction is necessary to protect Sindi from irreparable harm.
See id. at 62 n.15.
To be sure, that argument, too, was defaulted by the
defendants. But, by resting its vacatur solely on the irreparable
harm argument, the majority at least would be issuing a relatively
narrow, record-dependent ruling, with no broad federal
constitutional implications.22
injunction, see Maj. Op. at 61, and strikes it down based solely
on the defendants' personal rights under the First Amendment. The
only other injunction case that the majority cites reached an
arguably unpreserved argument that clearly had been raised on
appeal. See Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real
Estate Info. Servs., 608 F.3d 110, 125-26 (1st Cir. 2010).
22 There is yet another way to issue a narrower, non-
constitutional ruling in this case. It is by no means clear that
"whatever equitable remedy is available in a State court must be
available in a diversity suit in a federal court," given the
precedent that suggests that "[e]quitable relief in a federal court
is of course subject to restrictions" -- including that "the suit
must be within the traditional scope of equity as historically
evolved in the English Court of Chancery" -- and "[t]hat a State
may authorize its courts to give equitable relief unhampered by
any or all such restrictions cannot remove these fetters from the
federal courts." Guar. Tr. Co. v. York, 326 U.S. 99, 105-06
(1945). Thus, even if there were a reason to decide this case
based on defaulted arguments, I do not see why it is clear that
the right defaulted argument to rely on is one that restricts the
- 73 -
Nor am I persuaded by the majority's conclusion that it
makes sense to decide this case on the basis of the forfeited
constitutional argument in light of our precedent recognizing that
"'an appellate court has discretion, in an exceptional case, to
reach virgin issues,' that is, to relieve a party of a prior
forfeiture." Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st
Cir. 2002) (en banc) (per curiam) (quoting United States v. La
Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)). Under this
exception to the "raise-or-waive" rule, we may exercise discretion
to decide a case based on a forfeited argument after considering
a variety of factors, such as whether the underlying issue is of
"constitutional magnitude" and "great public moment"; the party's
failure to address it was "entirely inadvertent rather than
deliberate"; its proper resolution is sufficiently clear that the
lower court can be said to have plainly erred; and deciding it
will not result in "special prejudice or inequity" to the non-
defaulting party or "deprive[] the court of appeals of useful
factfinding." Nat'l Ass'n of Soc. Workers, 69 F.3d at 627-28;
accord Chestnut, 305 F.3d at 21.
authority of not only federal courts but also state courts. And
that is especially so given the care with which state courts seem
to be grappling with the longstanding question concerning the scope
of their own equitable jurisdiction to remedy defamation. See
Roscoe Pound, Equitable Relief Against Defamation and Injuries to
Personality, 29 Harv. L. Rev. 640 (1916).
- 74 -
Here, of course, we are dealing with a failure to
properly raise an argument in appellate briefing as well as in the
district court. But, insofar as the exception to our "raise-or-
waive" rule on which the majority relies applies to such a
situation,23 I cannot see why it applies here. The prior
restraint/strict scrutiny issue is of "constitutional magnitude"
and, at least arguably, of "great public moment."24 But, the other
factors that we have held bear on deciding whether to excuse a
forfeiture weigh against doing so.
23 In every case that the majority cites concerning this
doctrine, see Maj. Op. at 43-45, the issue we reached had been,
unlike in this case, timely raised by the defaulting party on
appeal. See Gencarelli v. UPS Capital Bus. Credit, 501 F.3d 1, 8
(1st Cir. 2007); Chestnut, 305 F.3d at 19-21; Nat'l Ass'n of Soc.
Workers, 69 F.3d at 627-30; La Guardia, 902 F.2d at 1012-13. Nor
do the Supreme Court cases that the majority cites with respect to
excusing procedural defaults address the circumstances in which
appellate courts may reach issues never timely raised on appeal.
See Maj. Op. at 43, 46. In Hormel v. Helvering, 312 U.S. 552(1941), the Supreme Court merely acknowledged a reviewing court's
authority to reach an unpreserved issue that had been argued before
it on appeal. Id. at 554-59. And, in Singleton v. Wulff, 428
U.S. 106 (1976), the issue was whether a reviewing court may pass
on a properly presented merits argument, as opposed to remanding,
after reversing a lower court's dismissal for non-justiciability;
the Court had no occasion to address a reviewing court's discretion
to address an argument that no party had properly presented to it.
Id. at 120-21.
24 We have explained that the "great public moment" factor
concerns whether the defaulted argument "touches upon policies as
basic as federalism, comity, and respect for the independence of
democratic institutions." Nat'l Ass'n of Soc. Workers, 69 F.3d at
628. It is at least not obvious to me that the defaulted strict
scrutiny/prior restraint argument implicates policies of that
sort, unlike the defaulted arguments about the immunities enjoyed
by state legislators and municipalities in National Association of
Social Workers, 69 F.3d at 627, and Chestnut, 305 F.3d at 19-20.
- 75 -
To begin with, it would be extremely generous to
characterize as "entirely inadvertent," Nat'l Ass'n of Soc.
Workers, 69 F.3d at 628 (emphasis added), the defendants' years-
long strategy of training their fire solely on the supposedly
inadequate predicate finding that the defendants used the six
enjoined statements to defame Sindi in the past. Indeed, at the
hearing on the proposed injunction, the District Court, quite
conscientiously, sought to make sure that the defendants' federal
constitutional challenge to Sindi's proposed injunction was as
limited as it appeared to be. And, in response, the defendants'
counsel made clear that it was: "I think there would not be a
prior restraint, your Honor, if there had been a final adjudication
as to certain statements" finding that they were defamatory. That
counsel also confirmed that same position repeatedly at that same
hearing. And he did so without ever suggesting that the
injunction, as drafted, might be unconstitutional under the First
Amendment if it were properly predicated.
Consistent with those representations, moreover, the
defendants also declined the District Court's express invitation
to suggest that "the language [of the injunction] should be tweaked
one way or another to not create a prior restraint." And that was
the case even though the District Court soon thereafter had,
prudently, circulated for comment a narrowed version of the
- 76 -
proposed injunction that targeted just six of the twenty-six
statements that Sindi initially had sought to enjoin.
It also seems to me that prejudice does result from our
willingness to revive this never-before-raised constitutional
argument. The parties were given a chance to provide supplemental
briefing to address it. But, we have never suggested that the
provision of that opportunity is a panacea. And here it is not.
If the defendants had given Sindi some indication below
that they actually wished to use the enjoined statements in new
contexts, she potentially could have further developed the record
regarding just how the defendants did intend to use those
statements and why the injunction -- in whatever form it would
then take in such circumstances -- was necessary to prevent the
defendants from nevertheless using the statements to defame her.
Had that happened, the District Court could have then evaluated
that more developed record and either scaled back the injunction
in some calibrated manner that might still protect Sindi or issued
this same injunction after making findings on the key disputed
points concerning the defendants' likely future conduct.
What the case then would have looked like we cannot know,
precisely because we are raising these constitutional issues on
our own and are thus deprived of that "useful factfinding." Id.
at 627. But, we are not the only ones who lose out by short-
circuiting this normal adjudicative process. Because we have
- 77 -
transformed what had been a concrete dispute into an abstract one,
Sindi finds herself stripped altogether of the protection that she
had secured. And she is stripped of it based on a speculative
expressive interest that we have assumed the defendants must have,
even though the defendants themselves never gave her (or the
enjoining court) any indication that they actually do.25
Perhaps the fact that we are deciding this case in this
artificial posture does not matter. Perhaps, under the majority's
rule, there is no showing that Sindi could make about her proven
defamers' likely future conduct that would entitle her to an
injunction of this kind. Perhaps, in fact, she would not be able
to make such a showing even if the defendants had been found to
have been in violation of an earlier injunction that did require
Sindi to prove defamation to enforce it.
But, if, as appears, that is what the majority means to
hold, then, in my view, it is especially clear that we have no
good reason to make an exception to our "raise-or-waive" rule here.
For, as I will next explain, such a broad federal constitutional
holding hardly rests on a legal conclusion that is so plainly right
25 Nor do the interests of third parties make the First
Amendment interests potentially at stake in this case any less
theoretical. This injunction expressly applies only to the two
defendants, and they have not challenged the District Court's
findings that they likely want to use the statements only as they
had used them before, which necessarily means that they are
unlikely to communicate the statements to any third parties for
any protected purpose.
- 78 -
that it is of the kind that "often inclines a court to entertain
a pivotal argument for the first time on appeal." Id. at 628(quoting La Guardia, 902 F.2d at 1013).
C.
As the majority recognizes, there is no on-point
precedent -- from either our court or the Supreme Court -- that
dictates the federal constitutional rule that it announces. See
Maj. Op. at 49. Of course, the absence of such precedent is not
conclusive as to whether the rule that the majority adopts is so
plainly right that the party that would benefit from its
announcement may be excused for having failed to raise the issue
properly.
But, here, the problem with finding the law so clear
that no argument about it need be timely raised is more
fundamental. For, in this case, there is not merely a dearth of
controlling supportive precedent, but also substantial (though not
controlling) opposing precedent and not a single case of any court
that actually holds what the majority now does.
1.
To begin, as the majority acknowledges, there is no
controlling Supreme Court precedent that makes clear what the
majority holds: that an injunction that bars the expression of
certain statements is a presumptively unconstitutional prior
restraint under the First Amendment even when it rests on findings
- 79 -
that the enjoined party had engaged in prior unprotected, unlawful
uses of the enjoined statements and will likely use those
statements in that same unprotected and unlawful manner going
forward absent the injunction. And the fact that there is no such
precedent should give us pause.
This injunction -- like any that bars a party from making
any statement -- does preclude expression before it is expressed.
But, we have no reason to conclude that the absence of Supreme
Court precedent treating an injunction like this one as a
presumptively unconstitutional prior restraint should be chalked
up to the fact that the Court simply has not yet gotten around to
doing so, because, once it does, the result will be obvious. To
the contrary, the Supreme Court has expressly cautioned that "[t]he
phrase 'prior restraint' is not a self-wielding sword. Nor can it
serve as a talismanic test." Kingsley Books, Inc. v. Brown, 354
U.S. 436, 441 (1957); see also Madsen, 512 U.S. at 764 n.2
(explaining that "[n]ot all injunctions that may incidentally
affect expression . . . are 'prior restraints' in the sense that
that term was used in New York Times Co. [v. United States, 403
U.S. 713 (1971) (per curiam)]").26
26
The only precedents involving injunctions targeted at
unprotected speech that the defendants cite in their supporting
brief for the view that strict scrutiny applies here did not in
fact apply strict scrutiny. For example, the defendants cite
language from Tory v. Cochran, 544 U.S. 734 (2005), that "[a]n
'order' issued in 'the area of First Amendment rights' must be
- 80 -
Our own precedent, moreover, has been sensitive to this
guidance. That precedent involved a statute that authorized
injunctive relief to be ordered on the basis of a finding that a
defendant had engaged in unprotected charitable solicitation. See
Auburn Police Union v. Carpenter, 8 F.3d 886, 902 (1st Cir. 1993).
And we explained there that "[a]n injunction that is narrowly
tailored, based upon a continuing course of repetitive speech, and
granted only after a final adjudication on the merits that the
speech is unprotected does not constitute an unlawful prior
restraint." Id. at 903.
Further, a number of courts, including the Sixth Circuit
and the California Supreme Court, have actually approved, in the
face of First Amendment challenges, injunctions just like this
'precis[e]' and narrowly 'tailored' to achieve the 'pin-pointed
objective' of the 'needs of the case.'" Id. at 738 (second
alteration in original) (quoting Carroll, 393 U.S. at 183-84).
They also cite language from Pittsburgh Press Co. v. Pittsburgh
Commission on Human Relations, 413 U.S. 376 (1973), that an
injunction against unprotected commercial speech should "sweep[]
no more broadly than necessary." Id. at 390. The Supreme Court,
however, has expressly stated that a test requiring that an
injunction "'burden no more speech than necessary' to accomplish
its objective" is no different from the Carroll test, Madsen, 512
U.S. at 767, and that neither test amounts to strict scrutiny.
See id. at 762-64.
Sindi does say in her supplemental brief that strict scrutiny
applies here. But, it would be ironic to conclude that we are
bound by her acceptance of the defendants' asserted standard of
review, given that she does so in a supplemental brief that she
submitted only because we chose to disregard her counsel's quite
justified contention at oral argument (and repeated in her
supplemental brief) that we have no reason to overturn the
injunction on grounds that the defendants had not timely raised.
- 81 -
one. See, e.g., Lothschuetz v. Carpenter, 898 F.2d 1200, 1208-09
(6th Cir. 1990) (Wellford, J., for the court in part); Balboa
Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 342-53 (Cal. 2007);
cf. McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)
(observing that "[m]ost courts would agree" with the Sixth Circuit
on this issue).27 And no precedent, so far as I am aware, has
struck a similar one down under the First Amendment.28
The majority does rely on one Supreme Court precedent
that invalidated an injunction that was a remedy for past
defamation: Tory, 544 U.S. 734. See Maj. Op. at 52-53. But, the
Court held there that the injunction was an "overly broad prior
restraint" only because the defamation victim died while the case
was pending before the Court. Tory, 544 U.S. at 738. The Court
then explained that, in consequence of the defamation victim's
27
See also Retail Credit Co. v. Russell, 218 S.E.2d 54, 62-
63 (Ga. 1975); Advanced Training Sys. v. Caswell Equip. Co., 352
N.W.2d 1, 11 (Minn. 1984); Flint v. Hutchinson Smoke Burner Co.,
19 S.W. 804, 806 (Mo. 1892); Nolan v. Campbell, 690 N.W.2d 638,
652 (Neb. Ct. App. 2004); O'Brien v. Univ. Cmty. Tenants Union,
Inc., 327 N.E.2d 753, 755 (Ohio 1975); cf. Wagner Equip. Co. v.
Wood, 893 F. Supp. 2d 1157, 1161-62 (D.N.M. 2012) (adopting a
constitutional rule that such an injunction may issue); Hill v.
Petrotech Res. Corp., 325 S.W.3d 302, 309 (Ky. 2010) (same).
28
The only precedents of which I am aware that have struck
down injunctions in defamation cases as prior restraints did so
under state constitutions. See Kinney v. Barnes, 443 S.W.3d 87,
101 (Tex. 2014); Willing v. Mazzocone, 393 A.2d 1155, 1157-58 (Pa.
1978); see also Kramer v. Thompson, 947 F.2d 666, 669-80 (3d Cir.
1991) (applying Pennsylvania law under Willing, despite finding
the authorities upholding such injunctions under the First
Amendment to be "quite persuasive").
- 82 -
death, even though the case was "not moot," it was both
"unnecessary" and "unwarranted" to further "explore" the enjoined
parties' claims there, including the claim that "the injunction
(considered prior to [the defamation victim's] death) was not
properly tailored and consequently violated the First Amendment."
Id. at 736-38; see also Carroll, 393 U.S. at 180 (noting that the
Court need not decide the "thorny" problem of whether an injunction
against a white supremacist organization's rally could be
justified based on findings that the organization had engaged in
unprotected conduct at a prior rally because the injunction could
be invalidated on the narrower ground that it was issued ex parte
without notice or an opportunity to be heard).29
2.
This body of precedent suggests to me that, at the very
least, there is good reason to tread cautiously in the face of the
defaulted prior restraint/strict scrutiny argument, just as the
Court chose to do in Tory itself. The majority may be right that
the courts that have upheld injunctions as prophylactic means of
preventing the likely recurrence of defamation, like the one before
29 Significantly, the Supreme Court stayed its hand in Tory
even though the injunction there was even broader than the one
here, insofar as it permanently enjoined Ulysses Tory "and his
employees, agents, representatives, and all persons acting in
concert, cooperation or participation with him" from, among other
things, "orally uttering statements about [the plaintiff]" in a
public forum. Pet'rs' Br. at 5-6, Tory, 544 U.S. 734.
- 83 -
us, have been wrong to rely on the Kingsley Books line of Supreme
Court precedent. See, e.g., Balboa Island, 156 P.3d at 346-47.
That line of precedent may be distinguishable due to defamation's
more "mutable" nature. See Maj. Op. at 56. But, the briefing in
Tory indicates that we also need to address a different line of
precedent, which cannot be similarly distinguished.
Specifically, the Tory briefing points to Madsen and
Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357(1997), each of which remains good law. Those cases upheld
portions of injunctions, a permanent one in Madsen and a
preliminary one in Schenck, that restricted defendants from
"demonstrating" on public rights of way within fixed buffer zones
outside abortion clinics -- activity that was, of course, otherwise
constitutionally protected. Schenck, 519 U.S. at 380-85; Madsen,
512 U.S. at 768-71.
The Court reasoned that those portions of the
injunctions survived First Amendment review because they "burden
no more speech than necessary to serve a significant government
interest." Schenck, 519 U.S. at 372 (quoting Madsen, 512 U.S. at765 (citing Carroll, 393 U.S. at 183-84)). Thus, neither case
required the application of strict scrutiny, which demands that a
regulation of expression be "the least restrictive means of
achieving a compelling state interest." McCullen, 134 S. Ct. at
2530.
- 84 -
The Court held that this less exacting form of review
applied, moreover, even though the injunctions "restrict[ed] only
the speech of antiabortion protesters." Madsen, 512 U.S. at 762.
And the Court explained that this less demanding form of scrutiny
applied because each injunction, in relevant part, issued "not
because of the content of [the protesters'] expression, . . . but
because of their prior unlawful conduct." Schenck, 519 U.S. at374 n.6 (quoting Madsen, 512 U.S. at 764 n.2) (alteration and
omission in original). The Court then went on to explain that
those injunctions, in relevant part, survived that review because
of the issuing court's supportable findings that the enjoined
parties would likely continue to engage in that same conduct absent
the injunction, id. at 380-82; Madsen, 512 U.S. at 769-70, which
had involved impeding access to the clinics and harassing those
clinics' patients in violation of, respectively, a prior
injunction in Madsen and state law in Schenck. Schenck, 519 U.S.
at 375; Madsen, 512 U.S. at 763.30
30 The Court also relied in both cases on the fact that
"alternative channels of communication were left open to the
protesters." Schenck, 519 U.S. at 374 n.6 (citing Madsen, 512
U.S. at 764 n.2). That is, the protesters were "not prevented
from expressing their message in any one of several different ways"
so long as they were outside the buffer zone. Madsen, 512 U.S. at764 n.2. Likewise, the defendants here may still express any
protected message through "different ways." For example, while
the majority speculates that the defendants might one day wish to
apologize by repeating the enjoined words, Maj. Op. at 58, the
defendants could still apologize without repeating the enjoined
words. Of course, that might not be a satisfactory alternative to
- 85 -
The Court in Schenck neatly described the underlying
logic for permitting courts to impose such speech-restrictive
prophylactic injunctive relief in rejecting the argument that the
injunction must be struck down because "a ban on 'demonstrating'
within the fixed buffer zone is 'a ban on peaceful, nonobstructive
demonstrations on public sidewalks or rights of way'":
This argument . . . ignores the record in this
case. Based on defendants' past conduct, the
District Court was entitled to conclude that
some of the defendants who were allowed within
[a certain distance] 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 individuals
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.
519 U.S. at 381-82 (emphasis added).
The injunction here is no different. It, too, was
imposed as a prophylactic means of ensuring that proven unprotected
and unlawful expression would not be repeated. And it, too, rests
a defamer who actually wants to apologize by using enjoined words,
though it would seem to be the best way of doing so sincerely.
But, where a defamation defendant objects to a proposed injunction
on that ground, the district court could easily accommodate the
concern by fashioning the injunction to permit the apology. Again,
it is only due to the artificial posture of this case that we are
concerning ourselves with the potential infringement of the
expression of messages that the defendants have never said they
want to express.
- 86 -
on unchallenged findings that the enjoined parties likely would
continue to do what they had been doing absent the injunction.
The majority nevertheless attempts to distinguish Madsen
and Schenck on the ground that this particular injunction is
content-based and so for that reason must be subjected to strict
constitutional review. See Maj. Op. at 60-61; Reed v. Town of
Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015); Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 713 (1931). But, strict scrutiny would
ordinarily apply to a speech regulation that, like the ones in
Madsen and Schenck, "covered people with a particular viewpoint,"
Madsen, 512 U.S. at 763, and yet the Court did not apply strict
scrutiny in either of those cases.
The Court nicely laid out the reason why in Madsen. In
rejecting the argument that the injunction there was "necessarily
content or viewpoint based" simply because the face of it
restricted "only the speech of antiabortion protesters," the Court
explained:
To accept [that] claim would be to classify
virtually every injunction as content or
viewpoint based. An injunction, by its very
nature, applies only to a particular group (or
individuals) and regulates the activities, and
perhaps the speech, of that group. It does
so, however, because of the group's past
actions in the context of a specific dispute
between real parties. The parties seeking the
injunction assert a violation of their rights;
the court hearing the action is charged with
fashioning a remedy for a specific
- 87 -
deprivation, not with the drafting of a
statute addressed to the general public.
Id. at 762 (emphasis added).
That same reasoning suggests to me that it is hardly
clear that this injunction is subject to strict scrutiny just
because it targets specific statements. The District Court
included the six statements in the injunction for the entirely
content-neutral reason that the record showed with unusual clarity
that the defendants had used these particular statements to defame
Sindi in the past and that they would likely use them to do so
again. Accordingly, there is no reason to think that the District
Court singled out these statements for any reason other than the
content-neutral one for which the lower courts permissibly singled
out certain abortion protesters in issuing the injunctions in
Madsen and Schenck -- namely, to ensure that the enjoined parties
would not continue unlawfully to harass their targets through the
resumption of unprotected expressive activity.
For this reason, Snyder v. Phelps, 562 U.S. 443 (2011),
does not show -- let alone clearly -- that Madsen and Schenck are
beside the point. See Maj. Op. at 61. In Snyder, the Court
distinguished Madsen on the ground that, in Snyder, a state had
imposed tort liability for prior protected speech because of both
"the content and viewpoint of the message conveyed" and not as a
prophylactic check against the recurrence of prior unprotected
- 88 -
speech. 562 U.S. at 457-58. Thus, by treating this case as if it
is the same as Snyder, the majority, in my view, makes the basic
mistake that generally underlies its analysis: It equates an
injunction that has been crafted as a prophylactic means of
stopping the likely recurrence of speech that has already been
found to have been expressed in an unprotected manner with a
regulation to restrict the expression of offensive but protected
speech from ever being uttered at all.
3.
Turning to the issue of whether this injunction is
sufficiently narrowly tailored, I do not deny that, as written, it
precludes statements that can be expressed in ways that would be
protected. And, I cannot deny that, notwithstanding what the
undisputed record shows, the defendants may at some point choose
to use the enjoined statements for some reason other than to
continue their defamatory campaign against Sindi.
But, the defendants would not then be forced to choose
between contempt and silence. If, as the majority speculates,
Maj. Op. at 58, they happen to have a surprising change of heart
that leads them to want to, say, apologize to Sindi by renouncing
-- by means of repeating -- their prior statements, they would
need only to call upon the District Court's unquestioned
responsibility to modify the injunction. See Balboa Island, 156
P.3d at 353 & n.13.
- 89 -
I recognize -- as the majority rightly notes -- that a
regulation of speech ordinarily may not be justified on the ground
that it permits restricted speakers to obtain a court's permission
to speak. See Maj. Op. at 59-60. But, as Madsen and Schenck
recognized, cases like the one before us arise in the wake of a
party's having engaged in prior unprotected conduct. And, in cases
of that type, per Madsen and Schenck, lower courts have been
afforded room to craft particularized, prophylactic injunctions to
prevent the recurrence of irreparable harm based on supportable
findings that the parties to be enjoined will resume their prior
pattern of unprotected, unlawful conduct absent the injunction.
All of that said, I do not dispute that this injunction
could be more narrowly drawn -- just as the ones at issue in Madsen
and Schenck also could have been. It could, for example, have
included a coda that enjoined the listed statements only insofar
as the defendants use them to defame Sindi, just as each of the
injunctions in Madsen and Schenck could have included a coda that
limited the protesters' presence in the buffer zone only to the
extent that they behaved in an unprotected manner.31
31As explained in his thoughtful brief, the amicus would go
one step further and say that even a coda would not be enough to
save the injunction before us because the injunction "threatens
criminal punishment [for violating the injunction] without
providing the important procedural safeguards that criminal libel
law provides." In my view, however, this argument, not raised by
the defendants, mistakenly equates criminalizing defamation as
primary conduct (as in the case of criminal libel) with
- 90 -
But, such a coda comes at the expense of the specificity
and clarity of the prohibition and thus at the ease of its
enforcement. And because such codas invite enjoined parties to
press their luck, a constitutional requirement to impose one
amounts to a constitutional requirement that victims of unlawful
campaigns of defamation -- such as Sindi -- tolerate a greater
risk of suffering irreparable harm.
There is no clear precedent, however, that requires
proven defamation victims to bear that risk. In fact, Madsen
permitted the imposition of a prophylactic ban on some otherwise
protected demonstrating in part because a more tailored prior
injunction banning "blocking or interfering with public access to
the clinic, and from physically abusing persons entering or leaving
the clinic" had "proved insufficient." 512 U.S. at 758-59. And
Schenck then clarified that a court may proceed with imposing "a
'speech-restrictive' injunction" that is found necessary to avoid
criminalizing the violation of an injunction that has been issued
as a properly predicated prophylactic protection against the
future expression of unprotected speech found likely to recur.
Certainly there were no criminal safeguards provided for in the
injunctions in Madsen and Schenck. See Pro-Choice Network of
Western N.Y. v. Project Rescue Western N.Y., 799 F. Supp. 1417,
1440-41 (W.D.N.Y. 1992); Operation Rescue v. Women's Health Ctr.,
Inc., 626 So. 2d 664, 676-82 (Fla. 1993) (per curiam). But, the
Court was not troubled by that fact, even though the underlying
harassing conduct could be criminalized only by respecting those
safeguards.
- 91 -
irreparable harm "without first trying a 'non-speech restrictive'
injunction." 519 U.S. at 382.
II.
The majority's First Amendment ruling limits a
defamation victim's right to secure protection from the harm that
her obstinate defamers are likely to inflict. But, this ruling
may have even broader implications, as I do not see why its logic
applies only to remedies for defamation. See, e.g., Aguilar v.
Avis Rent a Car Sys., Inc., 980 P.2d 846, 853-59 (Cal. 1999)
(holding that enjoining a defendant's use of racial epithets at
the defendant's workplace was not an unconstitutional prior
restraint because it was based "on [his] continuing course of
repetitive conduct" that violated employment discrimination law).
By discussing the merits of this ruling at length,
however, I do not mean to resolve the underlying constitutional
issues. I mean only to explain my disagreement with the majority's
assertion that its conclusions are so firmly rooted in basic First
Amendment principles and precedents that we have good reason to
depart from our usual "raise-or-waive" rule. Nor do I see any
reason for the majority to address these debatable and defaulted
First Amendment arguments when the majority suggests that the much
less consequential, albeit still defaulted, argument that the
record did not show that an injunction was necessary to prevent
- 92 -
irreparable harm could on its own suffice to justify the
invalidation of the injunction.
The majority itself counsels that "courts should not
rush to decide unsettled issues when the exigencies of a particular
case do not require such definitive measures." Maj. Op. at 50
(quoting Privitera v. Curran (In re Curran), 855 F.3d 19, 22 (1st
Cir. 2017)). That counsel commands special attention, it seems to
me, when its disregard risks causing irreparable harm to a proven
victim of a years-long defamation campaign for reasons first
brought to her attention -- if even then -- only at oral argument
in our court.
For these reasons, I respectfully dissent from Part VII,
while otherwise fully joining the majority's excellent analysis.
- 93 -
-APPENDIX A-
Sindi v. El-Moslirnany, et al
Case No. 1:13-cv-10798-IT
Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 1 of 9 Page No. 1
Plaintiff's Alleged Defamatory Statements
Exhibit 29 (A pril 20, 201 2 email from Samia El-Mos limany to Mr. Eba at camp-online.org)
• Page One:
o "I am just one victim of Hayat Sindi's manipulations"
• Page Two:
o "Dr. Sindi has misrepresented by herself and her accomplishments as a Muslim
and professional";
o "In addition, her personal, professional and academic resume is fraught with
untruths and exaggeration, calling into question her credentials as a scholar and a
professional."
o "What might seem as trivial dishonesty or vanity about her age, has given her
opportunities that should have gone to those who actually fit the 'youth' criteria
for specific awards."
o "By misrepresenting her age, Sindi robbed opportunities for recognition, public
relations support, funding opportunities and career advancement, from the very
youth she proclaims to support with her new institute, http ://i2 institute. rg."
o " ... professionally, Sindi promotes herself as 'one of the world's leading
biotechnologists'".
Exhibit 44 (December 22. 2012 email fror.n Ann El-Mos lim any to Joi Ito)
• Page One:
o "I have done extensive research on Hayat Sindi, finding her personal, professional
and academic resume is fraught with complete untruths and exaggeration, calling
into question her credentials as a scholar and a professional"
o "Currently her problematic background is coming under scrutiny from both
Middle East and international media outlets."
o " ... several board members of the i2 Institute [] have launched their own
proactive investigations after my contact with them ."
o " ... Sindi had little, if no participation, in her most publicly touted achievement -
the .actual scientific development and invention of the diagnostic tool developed
in the Harvard lab of Professor George Whitesides and the founding of the
company, Diagnostics For All. It is for this invention which was not hers, that
Sindi was awarded the National Geographic Emerging Scholar Award, the
PopTech Innovation Fellowship, and was honored with a UNESCO
Ambassadorship"
• Page Two:
o "Imagine when Saudi youth discover that their hero(ine) is a fraud ... "
• Page Two/"Hayat Sindi in Brief"
o "False and Exaggerated Academic and Professional Accomplishments Resulting
in Undeserved Accolades"
EXHIBIT
-94- I A
Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 2 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 2
Plaintiff’s Alleged Defamatory Statements
o “PhD research conducted and dissertation allegedly written by Dr. Adrian
Stevenson … while under the advisorship of Professor Christopher Lowe, at
Cambridge University..”
o “Although given the title of Harvard Visiting Scholar with Professor George
Whitesides … Sindi did not teach, do any research of substance, work in the
laboratory, or pursue a degree or post doctoral at Harvard”
o “Does not have an MBA from Harvard as stated in numerous media articles”;
o “No record of having studied at Oxford”;
• Page Three / “Hayat Sindi in Brief”
o “Falsification of her age by 11 years”;
o “By misrepresenting her age, Sindi robbed opportunities for recognition, public
relations support, funding opportunities and career advancement, from the very
youth she claims to support with her new institute, http://i2institute.org”;
o “she claimed to be 16”
o “she claimed to be 29”
o “she claimed to be 31”
o “she claimed to be 32”
o “Fraudulent claims of inventions”
• Page Four / “Hayat Sindi in Brief”
o “Promotes self as one of the world’s top biotechnologists”;
o “Sonoptix is housed in an apparently empty store front in Cambridge”;
• Page Five / “Hayat Sindi in Brief”
o “Sindi brought a frivolous lawsuit against American Samia El-Moslimany”
Exhibit 50 (January 18, 2013 Washington Post article -- David Ignatius: Women gain newfound
stature in Saudi Arabia, including comments)
• Page 000020 (comment by “Her fiance’s wife”)
o “Sindi’s ever changing pathologically altered life story”
o “She has been lying about her age since 1999, successfully snatching honors and
awards for young scholars when she was in her 40’s”
o “… her non-existent role in the founding of DFA”
o “my family and I are left homeless and penniless ….”
Exhibit 51 (January 30, 2013 Amazon Review)
• Page 3
o “Hayat Sindi’s personal, professional and academic resume is fraught with
exaggeration, and calls into question her credentials as a scientist, a scholar and a
professional, and certainly as a role model for young people”;
o “Nearly every page of this book about Sindi is filled with her now famous
inaccuracies and exaggerations about her past, her claiming of discoveries that are
not her own, as well as the accolades she received she received as a result of her
fabrications”;
-95-
Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 3 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 3
Plaintiff’s Alleged Defamatory Statements
o “If Sindi has made any scientific discoveries, none of them have been produced or
are helping cancer patients”;
o “… Sindi had little, if no participation, in her most publicly touted achievement –
the actual scientific development and invention of the diagnostic tool developed
in the Harvard lab of Professor George Whitesides and the founding of the
company, Diagnostics for All.”
o “It was primarily for this invention, which was not hers alone to claim, that Sindi
was awarded the National Geographic Emerging Scholar Award, and was also
honored with a Pop Tech Innovation Fellowship, and just recently made a
UNESCO Ambassador”
o “By lying about her age, Sindi robbed opportunities for recognition, public
relations support, funding opportunities and career advancement, from the very
Saudi and Muslim youth she proclaims to support”
o “In 1991, when Sindi arrived in the UK, she was 24 years old (she claims to have
come at 15 or 16 years of age) and had already attended medical school at King
Abdul Aziz University for at least two years, where the medium of instruction is
English”
o “She certainly spoke English when she arrived in the UK with her father who
arranged for her to stay in a rooming house of a well-respected Muslim teacher,
Yusuf Qardawi”
o “Dr. Lowe accepted Sindi as a doctoral candidate, even though she did not have
the prerequisite knowledge to become a candidate in biotechnology”;
o “[she received her PhD from Cambridge], for which her PhD adviser, Dr. Lowe,
says she did not deserve, as the research and dissertation appeared to be carried
out by one of her colleagues another postdoctoral student”
o “Sindi continues to claim ownership of the MARS invention”;
o “Sindi never produced a process to make sewage water clean enough to drink, and
if such a process exists and is helping ‘poor communities’ Sindi played no part”
o “Sindi appears to have … two patents, one of which was based on her potentially
plagiarized PhD research ….”; and
o “Sindi was part of a team of 6 and did not head the team that won the MIT
Entrepreneurship Competition, the team was mentored and headed by Harvard
Business School Professor Vicki Sato”.
Exhibit 52 (January 29, 2013 email between Samia El-Moslimany and David Ignatius of the
Washington Post)
• Page One:
o “… [Sindi] has a history of lying, repeatedly contradicting herself, and making
completely false statements to the media”;
• Page Two:
o “Tens of thousands of people surely read the article when first published, and
deserve to know there are glaring omissions and in fact were recounted
exaggerations, if not outright lies”;
-96-
Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 4 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 4
Plaintiff’s Alleged Defamatory Statements
o “Sindi fraudulently was awarded PhD. According to people intimately involved
with her personally and academically, Sindi did not carry out the research nor
author the PhD dissertation for which she was awarded a Cambridge Doctorate”;
o “She launched an unsuccessful company, Sonoptix circa 2003, which died a quick
death by 2004”;
o “She was originally allowed to call herself a “Co-founder” of DFA for the
purposes of bringing in funding, at which she utterly failed. She had no
substantive part in the creation of the company, other than as a member of the six
person business plan team, and as a facilitator in getting Berlow and Carmichael
to do the serious business establishment legwork”
o “Yes, she’s launched the i2 institute. One board member, the original only other
woman on her board, has quietly resigned. A newly added board member has
confided they will resign, and another member has retained a private investigator
to retroactively check into Sindi’s background and has been questioning me. One
supporting ‘partner’ indirectly contacted people close to me and is seriously
considering their association with her tainted organization.”
o “… her biggest financial backers are involved in an investigation of her fraudulent
background and misuse of funds, stemming back to her Cambridge days”;
o “con-artist Sindi”;
o “The problem is that Sindi’s ‘accomplishments’ are simply her fabricated story, or
honors bestowed upon her by those who believed her story”;
o “Her PhD: Ghost researched, ghost written”; and
o “Harvard Visiting Scholar: Never taught or did substantive research …[t]he title
was bestowed upon her so she could retain a visa to the US and go back to
brandishing her Harvard association to raise funds for DFA and Nano Terra.”
• Page Three
o “… funding for Sonoptix dried up because the technology failed”;
o “Awarded the MIT Arab-American Science and Technology Young Professional
Award, a Pop Tech Fellowship, the National Geographic Emerging Scholar
Award, UNESCO Ambassadorship and an array of empty Arab achievement
awards: You bet, based on her lies about her age and on the same fabricated story
of determined accomplishments that she shared with you.”
o “When she arrived in the UK to restart her undergrad degree, she had completed
at least two years of medical school at King Abdul Aziz University in Jeddah
where the medium of instruction is English. She spoke English”.
Exhibit 66 (February 12, 2014 email to “a number of US State Department employees, the and
the US Consul General in Jeddah)
• Page One:
o “Hayat Sindi has brought me to the verge of financial collapse by a frivolous
$10,000,000 lawsuit she, and the i2 Institute she heads, have brought against me
in Boston”; and
o “Hayat Sindi is an academic and scientific fraud”.
-97-
Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 5 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 5
Plaintiff’s Alleged Defamatory Statements
• Page Two:
o “Currently of greatest concern is the apparent use of i2 Institute funds by Hayat
Sindi and the i2 Institute Board of Directors in bringing another frivolous lawsuit
against the very Arab youth that she purports to mentor”;
o “Currently her problematic background is coming under scrutiny from both
Middle East and international social media. Several board members of the i2
Institute who have launched their own proactive investigations, prudently
removed themselves from the i2 Institute Board, fearing that they would become
associated with the scandal of fraud that is being revealed.”;
o “Imagine when Arab youth discovery that their heroine is a fraud…”; and
• Page Three / “Hayat Sindi in Brief”
o “False and exaggerated Academic and Professional Accomplishments Resulting
in Undeserved Accolades and Appointments”;
o “Cambridge PhD research and dissertation not by Sindi”;
o “According to Professor Christopher Lowe, Sindi’s PhD supervisor at Cambridge,
he was very reluctant to accept Sindi into the Cambridge Biotechnology PhD
program, because of her lack of prerequisite knowledge”;
o “Suspicion of Academic Fraud by Hayat Sindi”; “Her PhD research was
allegedly conducted and her dissertation written, by Adrian Stevenson, a
postdoctoral and very intimate friend of Sindi”
o “Lowe claimed that the writing style of her dissertation was clearly that of
Stevenson, and that they were ‘very, very intimate friends’”;
o “Lowe believes that ‘money definitely changed hands’”;
o “Myer Berlow of NanoTerra also confirmed that she did not have the basic
scientific or technical knowledge to have conducted the research or to have
written her dissertation”;
o “According to Myer Berlow and others closely associated with her, Sindi did not,
in a substantive way, teach, take part in research, work in the laboratory, or pursue
a degree or post doctorate at Harvard”;
o “Falsification of age”;
o “Sindi began publicly lying about her age from 1999, sometimes as much as
eleven years”;
o “By continually misrepresenting her age, Sindi robbed opportunities for
recognition, public relations support, funding opportunities and career
advancement, from the very youth she proclaims to support with her new
institute”;
o “she claimed to be 16”;
• Page Four / “Hayat Sindi in Brief”
o “she claimed to be in her twenties”;
o “she claimed to be 29”;
o “she claimed to be 31”;
o “she claimed to be 32”;
o “Fraudulent Claims of Inventions and Patents”;
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Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 6 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 6
Plaintiff’s Alleged Defamatory Statements
o “Sindi did not in a substantive way participate in the actual invention of the
postage stamp-sized medical diagnostic tool developed in the lab of Professor
George Whitesides at Harvard”;
o “It was for this invention, the invention in which she did not substantively
participate, that she was exclusively honored and awarded by both Poptech and
National Geographic”; and
o “Sindi fraudulently has claimed to have ‘invented’ MARS, a medical diagnostic
sensor, and claimed her UK-based dormant company Sonoptix, produced the
sensor”
• Page Five / “Hayat Sindi in Brief”
o “Sindi promotes herself as one of the world’s top biotechnologists.”
o “Sindi appears to have her name on 2 possibly 3 patents. One patent is based on
her PhD research allegedly carried out by her close friend Adrian Stevenson, also
allegedly compensated…”; and
o “Sonoptix is housed in an apparently empty storefront in Cambridge”;
o “Purportedly Sindi was brought onboard [at Nano Terra] to raise funds for the
company from Saudi Arabia, and was entirely unsuccessful”;
• Page Six / “Hayat Sindi in Brief”
o “Appointment to UNESCO based in large part on a recommendation from Adrian
Stevenson, the very close friend and alleged compensated author of her PhD
dissertation”
Exhibit 67 (February 12, 2014 email from “Abdullah Alhaq” to “i2 Institute Board Members and
Members of the Media”)
• Page Two
o “Hayat Sindi’s personal, professional and academic resume is fraught with
complete untruths and exaggerations. Her PhD supervisor at Cambridge, her
“colleagues” at Harvard, and many, many others attest to this. Please see (Hayat
Sindi in Brief) below.”
o “Currently of greatest concern is the apparent use of i2 Institute donated funds by
Hayat Sindi and the i2 Institute Board of Directors in bringing a frivolous lawsuit
against the very Arab youth that they claim to mentor”
o “her problematic background is coming under scrutiny from other Middle East
and international media. Several former board members of the i2 Institute began
their own proactive investigations, which resulting in individuals removing
themselves from the i2 Institute Board, fearing that they would be associated with
the scandal of deception that is being revealed”;
o “Imagine when Arab youth discover that their heroine is a fraud ….”;
o “Hayat Sindi is an illusion perpetuated by the West – Cambridge, Harvard,
National Geographic, the UN.”
o “In addition, it is important to know we have personally interviewed everyone
mentioned below and we are ready to refer you directly to sources of the
information that prove her qualifications are fictional”;
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Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 7 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 7
Plaintiff’s Alleged Defamatory Statements
• Page Two through Three / “Hayat Sindi in Brief”
o “False and exaggerated Academic and Professional Accomplishments Resulting
in Undeserved Accolades and Appointments”;
o “Cambridge PhD research and dissertation not by Sindi”;
o “According to Professor Christopher Lowe, Sindi’s PhD supervisor at Cambridge,
he was very reluctant to accept Sindi into the Cambridge Biotechnology PhD
program, because of her lack of prerequisite knowledge”;
o “Suspicion of Academic Fraud by Hayat Sindi”; “Her PhD research was
allegedly conducted and her dissertation written, by Adrian Stevenson, a
postdoctoral and very intimate friend of Sindi”
o “Lowe claimed that the writing style of her dissertation was clearly that of
Stevenson, and that they were ‘very, very intimate friends’”;
o “Lowe believes that ‘money definitely changed hands’”;
o “Myer Berlow of NanoTerra also confirmed that she did not have the basic
scientific or technical knowledge to have conducted the research or to have
written her dissertation”;
o “According to Myer Berlow and others closely associated with her, Sindi did not,
in a substantive way, teach, take part in research, work in the laboratory, or pursue
a degree or post doctorate at Harvard”;
o “Falsification of age”;
o “Sindi began publicly lying about her age from 1999, sometimes as much as
eleven years”;
o “By continually misrepresenting her age, Sindi robbed opportunities for
recognition, public relations support, funding opportunities and career
advancement, from the very youth she proclaims to support with her new
institute”;
o “she claimed to be 16”;
o “she claimed to be in her twenties”;
o “she claimed to be 29”;
o “she claimed to be 31”;
o “she claimed to be 32”;
o “Fraudulent Claims of Inventions and Patents”;
o “Sindi did not in a substantive way participate in the actual invention of the
postage stamp-sized medical diagnostic tool developed in the lab of Professor
George Whitesides at Harvard”;
o “It was for this invention, the invention in which she did not substantively
participate, that she was exclusively honored and awarded by both Poptech and
National Geographic”; and
o “Sindi fraudulently has claimed to have ‘invented’ MARS, a medical diagnostic
sensor, and claimed her UK-based dormant company Sonoptix, produced the
sensor”
o “Sindi promotes herself as one of the world’s top biotechnologists.”
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Case 1:13-cv-10798-IT Document 203-1 Filed 07/27/16 Page 8 of 9
Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 8
Plaintiff’s Alleged Defamatory Statements
o “Sindi appears to have her name on 2 possibly 3 patents. One patent is based on
her PhD research allegedly carried out by her close friend Adrian Stevenson, also
allegedly compensated…”; and
o “Sonoptix is housed in an apparently empty storefront in Cambridge”;
o “Purportedly Sindi was brought onboard [at Nano Terra] to raise funds for the
company from Saudi Arabia, and was entirely unsuccessful”;
Exhibit 164 (email from Ann El-Moslimany to the Daily Beast)
• Page One:
o “Since that time I began cooperating with a journalist and have undertaken
extensive research on Sindi, finding far more corruption ….”
o “Sindi’s personal, professional and academic resume is fraught with complete
untruths and exaggeration, proving her credentials as a scientist, a scholar, and a
professional are mostly fabricated”
o “Currently her problematic background is not only being investigated by me, but
is coming under scrutiny from both Middle East and international media outlets”
o “I am aware of several board members of the i2 Institute, the organization
recently launched by Sindi, who have begun their own proactive investigations
after my contact with them.”
o “Nashwa Taher, a prominent Saudi business woman, was formerly on the board
and has left the i2 Institute”;
o “According to reliable sources, Sindi had little, if no participation, in her most
publicly touted achievement – the actual scientific development and invention of
the diagnostic tool developed in the Harvard lab of Professor George Whitesides
and the founding of the company, Diagnostics For All. It is for this invention
which was not hers, that Sindi was profiled by your article in the Daily Beast, was
awarded the National Geographic Emerging Scholar Award, and was also
honored with a Pop Tech Innovation Fellowship, and just recently made a
UNESCO Ambassador”; and
o “In addition to her dubious credentials …”
• Page Two:
o “Imagine when Saudi youth discovery that their hero(ine) that you helped to
promote, is a fraud.”
o “In case you have any doubts as to the truth of my allegations a few details of my
research are below, and are being further investigated by international journalists
working to discover the truth about Hayat Sindi.”
o “I am ready to refer you directly to sources of the information that can prove her
qualifications are greatly exaggerated if not fictional”.
Exhibit 165 (July 10, 2016 Facebook Post by Ann El-Moslimany)
• “Instead a self-promoting individual who apparently was unwilling to commit herself to
the hears of grueling work that is an absolute necessity to truly excel in any field, but
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Sindi v. El-Moslimany, et al
Case No. 1:13-cv-10798-IT
Page No. 9
Plaintiff’s Alleged Defamatory Statements
instead relied on feminine wiles to cajole others to achieve what she would claim for
herself has managed to achieve this position.”
• Further accolades and empty honors have come from McKinsey Corporation, Harvard,
the US State Department, Cambridge University, National Geographic, the Clinton
Foundation and even the United Nations – each one of whom has failed to look beyond
Sindi’s own self endorsement”.
See also:
• Duplicate publication or republication of Exhibit 29, as reflected in Exhibit 31;
• Duplicate publication or republication of Exhibit 44, including “Hayat Sindi in Brief,” as
reflected in Exhibit 163
4828-2653-6757, v. 4
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-APPENDIX B-
Case 1:13-cv-10798-IT Document 223 Filed 10/06/16 Page 1 of 2
UNITED STATES DISTRICT
COURT DISTRICT OF
MASSACHUSETTS
HAYAT *
SINDI, *
Plaintiff, *
*
v. * Civil Action No. 13-cv-10798-IT
*
SAMIA EL-MOSLIMANY and *
ANN EL-MOSLIMANY, *
*
Defendants. *
AMENDED FINAL JUDGMENT
October 6, 2016
This action was tried by a jury with U.S. District Judge Indira Talwani presiding, and the
jury has rendered a verdict. Thereafter, the court has made further factual findings in support of a
permanent injunction.
It is ordered that:
Plaintiff Hayat Sindi recover from Defendant Samia El-Moslimany the amount of
$1,476,000 in compensatory and special damages; $631,808.88 in prejudgment interest, which is
calculated at a rate of 12% per annum, Mass. Gen. Laws ch. 231, § 6B, from January 25, 2013
through August 18, 2016 (the date of the original judgment); and costs as allowed by separate
order. Post-judgment interest is awarded at a rate of .56% per annum, 28 U.S.C. § 1961.
Plaintiff Hayat Sindi recover from Defendant Ann El-Moslimany the amount of $344,000
in compensatory and special damages; $147,250.85 in prejudgment interest, which is calculated
at a rate of 12% per annum, Mass. Gen. Laws ch. 231, § 6B, from January 25, 2013 through
August 18, 2016 (the date of the original judgment); and costs as allowed by separate order.
Post-judgment interest is awarded at a rate of .56% per annum, 28 U.S.C. § 1961.
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Case 1:13-cv-10798-IT Document 223 Filed 10/06/16 Page 2 of 2
Defendants Samia El-Moslimany and Ann El-Moslimany are enjoined from repeating—
orally, in writing, through direct electronic communications, or by directing others to websites or
blogs reprinting Samia El-Moslimany’s or Ann El-Moslimany’s letters and comments—the
statements:
1. That Hayat Sindi is an academic and scientific fraud;
2. That Sindi received awards meant for young scholars or other youth by lying about
her age;
3. That Sindi was fraudulently awarded her PhD;
4. That Sindi did not conduct the research and writing of her dissertation;
5. That Sindi’s dissertation was “ghost researched” and “ghost written”;
6. That Sindi’s role in the founding of Diagnostics For All was non-existent, and that
Sindi did not head the team of six people that won the MIT Entrepreneurship
Competition.
IT IS SO ORDERED.
October 6, 2016 /s/ Indira Talwani
United States District Judge
2
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