Kevin McCarthy v. Patricia Fuller ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3308, 15-1839
KEVIN B. MCCARTHY, et al.,
Plaintiffs / Counterclaim Defendants-Appellees,
and
LANGSENKAMP FAMILY APOSTOLATE, et al.,
Counterdefendants-Appellees,
v.
PATRICIA ANN FULLER, et al.,
Defendants / Counterplaintiffs-Appellants.
__________________________
Appeals from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cv-00994-WTL-DML — William T. Lawrence, Judge.
__________________________
ARGUED SEPTEMBER 21, 2015—DECIDED DECEMBER 18, 2015
__________________________
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
2 Nos. 14-3308, 15-1839
POSNER, Circuit Judge. This suit, instituted in 2008, grows out
of an event in Indiana in 1956: Mary Ephrem, a Catholic Sister
of the Congregation of the Sisters of the Precious Blood, claimed
to have encountered a series of apparitions of the Virgin Mary,
which had told her: “I am Our Lady of America.” With support
from the Catholic Archbishop of Cincinnati an elaborate pro-
gram of devotions to Our Lady of America was launched. Our
Lady has been credited with healing sick people who appealed
to her for a cure, although whether either the apparitions or the
cures are authentic has not been determined by the Congrega-
tion for the Doctrine of the Faith, the body within the Roman
Catholic hierarchy that is responsible for making such determi-
nations.
In the wake of the visions and the Archbishop’s support, Sis-
ter Ephrem joined with other Sisters of her Congregation in a
contemplative cloister—a “strictly cloistered house in the Con-
gregation” created in order “to enable Sisters with a special call-
ing to devote their entire energies to the worship and contem-
plation of God.” Approved in 1963 by Pope Paul VI, the new
cloister remained in existence until 1979.
Sister Therese (as Patricia Fuller, the principal defendant in
this case, styled herself—we’ll explain why we call her “Fuller”
rather than “Sister Therese”) entered the contemplative cloister
in 1965. In 1978 or 1979 its three members (two of them being
Fuller and Sister Ephrem) formed a new congregation, which
they called the Contemplative Sisters of the Indwelling Trinity.
And in 1993 Sister Ephrem founded Our Lady of America Cen-
ter, dedicated to promoting the devotions to Our Lady. She di-
rected the Center until her death in 2000, whereupon she was
succeeded by Fuller.
Sister Ephrem had willed all her property to Fuller, who also
took control of the Center and thus obtained control over all
property that belonged to either Sister Ephrem or the Center.
Nos. 14-3308, 15-1839 3
Most of the property pertained to the devotions to Our Lady of
America and had been created by Sister Ephrem or donated to
the Contemplative Sisters or to Our Lady of America Center.
Fuller registered trademarks for a variety of the artifacts related
to Our Lady of America that had been acquired by the two or-
ganizations, including documents such as Sister Ephrem’s diary
(which Sister Ephrem had copyrighted, along with a song, a
painting, and sculpture), medallions, plaques, and a statue of
Our Lady.
In 2005 Kevin McCarthy, a lawyer and Catholic layman, and
Albert Langsenkamp, who claims to be a Papal Knight of the
Holy Sepulchre, met Fuller and committed to help her promote
the devotions to Our Lady—spread the word, as it were. The
three worked together amicably at first, and in gratitude Fuller
gave them the statue and other artifacts of Our Lady. But in
2007 Fuller had a falling out with McCarthy and Langsenkamp
that erupted the following year into this bitter, protracted law-
suit, now in its eighth year. Langsenkamp established the
Langsenkamp Family Apostolate and McCarthy and
Langsenkamp (and the latter’s apostolate) claim to be the au-
thentic promoters of devotions to Our Lady of America and to
be the lawful owners of all the documents and artifacts accumu-
lated by Fuller and Sister Ephrem.
After the breakup Paul Hartman, a retired postal inspector,
came to Fuller’s aid by launching a campaign to smear McCar-
thy’s and Langsenkamp’s reputations. He emailed leaders of
the Catholic Church denouncing McCarthy and Langsenkamp
and posted to his blog allegations of their wrongdoings. He
emailed to Cardinal Francis George of Chicago a denunciation
of Langsenkamp and McCarthy as “two sharks from Indianapo-
lis” who had “hijacked the devotion from Sister Joseph Therese
[i.e., Fuller, sometimes also referred to as Sister Mary Joseph
Therese] and Our Lady of America Center, all for their personal
4 Nos. 14-3308, 15-1839
profit and gain.” And in a typical blog posting by Hartman we
read that he “finds it highly unlikely that LANGSENKAMP &
MCCARTHY were engaged in prayerful contemplation when
they swindled an[] estimated $750,000 from Sister Mary Joseph
Therese … . The writer also finds it unlikely that
LANGSENKAMP & MCCARTHY were praying as they unlaw-
fully seized control of Sister’s website by means of a fraudulent
letter to which they forged the name and signature of Sister Jo-
seph Therese. And, certainly, LANGSENKAMP & MCCARTHY
were not engaged in prayer when they stole the Archival Stat-
ute [he means Statue] of Our Lady of America from Sister Jo-
seph Therese.”
McCarthy and Langsenkamp (we can ignore the
Langsenkamp Family Apostolate) brought this suit against
Fuller and Hartman charging all manner of tortious conduct,
including conversion (theft), fraud, and defamation, and also
denying having infringed any of Fuller’s intellectual property.
Fuller and Hartman counterclaimed vigorously, accusing
McCarthy and Langsenkamp of similar misdeeds, including
theft of the statue, the website of Our Lady of America, and
proceeds of the sale of stock owned by Fuller worth $750,000;
infringement of copyrights and trademarks that Fuller owned
relating to the devotions for Our Lady; and defamation of Fuller
by calling her a “fake nun.”
The jurisdiction of the federal district court, and of this court
on appeal, rests on diversity of citizenship, and also on the De-
claratory Judgment Act, 28 U.S.C. § 2201, because McCarthy
and Langsenkamp sought a declaration that they had not in-
fringed trademarks and copyrights relating to Our Lady. (Those
would have been violations of federal law, and so the district
court had jurisdiction to issue a declaration that the defendants
had not committed them.)
Nos. 14-3308, 15-1839 5
In 2011, midway in this litigation, McCarthy obtained from
the Archbishop Secretary of the Congregation for Institutes of
Consecrated Life and Societies of Apostolic Life, the branch of
the Holy See (the central governing body of the Roman Catholic
Church, located in the Vatican) that is responsible for the su-
pervision of what are termed “religious Institutes,” a statement
that made clear that Fuller was no longer either a nun or a reli-
gious sister. (Nuns take solemn vows and are sequestered; that
is, they live in monasteries. Religious sisters are not sequestered
and take simple vows but are otherwise like nuns.) The state-
ment was that “Miss Patricia Ann Fuller is not a member of any
religious Institute, formally recognized by the Catholic Church
and therefore must not present herself as a Sister of the Roman
Catholic Church.”
The following year McCarthy and Langsenkamp submitted
to the district court a statement from the Apostolic Nunciature,
the Holy See’s diplomatic mission to the United States, confirm-
ing the authority of the archbishop’s declaration and requesting
“that the United States of America and its courts accord full
faith and credit to” it. McCarthy asked the district judge to take
judicial notice of (and thus defer to) the Holy See’s ruling on
Fuller’s status with regard to the Church. His ground was that
the federal court, being a secular body, could not reexamine the
Holy See’s ruling but was required to accept it as authoritative.
The judge refused his request on the ground that the jury was
the proper body to decide Fuller’s status.
That ruling precipitated an interlocutory appeal by McCar-
thy and Langsenkamp, an appeal that was within our appellate
jurisdiction by virtue of the collateral order doctrine. Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541, 546–47 (1949). We
ruled for the appellants, McCarthy v. Fuller, 714 F.3d 971 (7th
Cir. 2013), on the ground that a secular court has no authority to
take sides on issues of religious doctrine. E.g., Hosanna-Tabor
6 Nos. 14-3308, 15-1839
Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694,
702–07 (2012). But lest any doubt remain concerning Fuller’s
status, we asked the Holy See while the interlocutory appeal
was pending before us to advise us of her status. It responded
in a 51-page amicus curiae brief that analyzed the question in
detail and concluded that since leaving the Congregation of the
Sisters of the Precious Blood Fuller had not been a member of
any religious organization recognized by the Holy See. She is
not a member of the Catholic sisterhood or of any Catholic reli-
gious order (which is why we refer to her as Fuller rather than
as Sister Therese or Sister Mary Joseph Therese).
The Holy See’s ruling removed the issue of Fuller’s status in
the Catholic Church from the litigation. We therefore resolved
the interlocutory appeal by ordering the district court to take
judicial notice of the Holy See’s ruling and not allow the jury to
opine on whether Fuller is a nun or a religious sister; she has
authoritatively been determined to be neither.
And so the case returned to the district court, which con-
ducted a jury trial that resulted in a verdict in favor of McCar-
thy and Langsenkamp and against Fuller and Hartman. The
plaintiffs were awarded $150,000 in compensatory damages
and $200,000 in punitive damages, to be paid, however, just by
Hartman because he’d been the principal author of the defama-
tory statements. The punitive damages award was much small-
er than the $1 million that the jury had wanted to award—the
court reduced the amount because Indiana prohibits an award
of punitive damages that exceeds thrice the compensatory
damages awarded. Ind. Code § 34-51-3-4. The jury had awarded
Langsenkamp $1,000,000 in punitive damages but only $50,000
in compensatory damages. The judge therefore reduced
Langsenkamp’s award of punitive damages to $150,000. McCar-
thy was awarded $100,000 in compensatory damages and
$50,000 in punitive damages. The judge also awarded the plain-
Nos. 14-3308, 15-1839 7
tiffs some $295,000 in attorney’s fees and sanctions and $281,000
in costs, with these items to be paid by Fuller, Hartman, and
their lawyer.
The conduct of the litigation in the district court by the law-
yer representing Fuller and Hartman showed, as the district
judge explained in granting the request for attorney’s fees, a se-
rious and studied disregard for the orderly processes of justice.
That disregard has persisted on appeal. Many of the grounds on
which Fuller and Hartman seek reversal were waived, are frivo-
lous, or are incomplete, with the important exception of the
permanent injunction entered by the district judge, to which we
devote the balance of this opinion.
The focus of the injunction was the defamation claims, and
its terms were drawn mainly from the following jury instruc-
tion:
The Plaintiffs claim that the following statements were
made by the Defendants and were defamatory:
1. McCarthy, an attorney in good standing, suggested that
Jim Whitta’s name be forged on a quit claim deed.
2. The Plaintiffs bribed various members of the Clergy.
3. McCarthy physically threatened Fuller.
4. The plaintiffs stole the Latrobe Statue, the Crucifix, the
Plaque, and the Medallions.
5. Langsenkamp stole the websites ourladyofamerica.com
and ourladyofamerica.org.
6. The Plaintiffs stole $750,000 in proceeds from Fuller’s Key
Bank Stock.
7. Langsenkamp was involved in a car chase in which he
chased Fuller around Fostoria.
8 Nos. 14-3308, 15-1839
8. The Plaintiffs used the name “Ron Norton” in an inflam-
matory e-mail exchange that was first published by Hartman
on his website, ourladyofamerica.blospot.com.
9. McCarthy, without the knowledge or consent of Fuller,
caused a will to be drafted for Fuller in which she left the De-
votion to McCarthy.
But the jury was not asked which of these statements had
been made by the defendants and, of those statements, which
were defamatory. All it was asked to find and all it did find was
that the defendants had defamed the plaintiffs and should be
ordered to pay damages. The district judge awarded damages,
as we have described, and a permanent injunction.
The permanent injunction states:
It is hereby ordered, adjudged and decreed that Defend-
ants Fuller and Hartman … are hereby permanently enjoined
from publishing the following statements, as well as any simi-
lar statements that contain the same sorts of allegations or in-
ferences, in any manner or forum:
Defendants’ statements that[:]
McCarthy suggested that Jim Whitta’s name be forged on a
quit claim deed;
Plaintiffs bribed various members of the Clergy (including
Catholic Priests, Bishops, Archbishops, Cardinals and Popes);
McCarthy physically threatened Fuller or otherwise commit-
ted any wrongful act against Fuller;
Plaintiffs are con-men, crooks, forgers, thieves, racketeers, or
otherwise stole or converted property from Fuller or engaged
in any conspiracy against Fuller with any Catholic clergy,
lawyer (canon or civil) or investigator, or any Catholic lay per-
son promoting the devotion;
Plaintiffs stole any statue (including the Latrobe statue), cruci-
fix, plaque, medallions, pins, gold coinage, website (including
Nos. 14-3308, 15-1839 9
the ourladyofamerica.com and ourladyofamerica.org web-
sites) and/or proceeds from Fuller’s Key Bank Stock;
Langsenkamp was involved in a car chase in which he chased
Fuller around Fostoria;
Plaintiffs used the name “Ron Norton” in an inflammatory e-
mail exchange that was first published by Hartman at his
website, ourladyofamerica.blogspot.com; and
McCarthy, without the knowledge or consent of Fuller, caused
a will to be drafted for Fuller in which she left the Devotion to
McCarthy.
It is further ordered, adjudged and decreed that Defendant
Hartman is hereby ordered to take down the website operated
by Hartman at ourladyofamerica.blogspot.com… .
We’ll defer for a moment the question, fiercely debated by
the adversaries, whether it is ever proper to enjoin speech, and
consider first some particulars of the injunction. One is that
since the jury didn’t indicate specifically which accusations in
the jury instruction it found to be defamatory and to have been
made by the defendants, the judge had no basis in the jury’s
verdict for issuing an injunction that tracked the instruction.
Nor had he, without making his own factual determinations,
authority to enjoin defamatory statements that the jury had not
been asked to consider in deciding on its verdict. For example,
the judge enjoined Fuller and Hartman from stating that
“McCarthy physically threatened Fuller,” a defamatory state-
ment alleged in one of the jury instructions but not mentioned
in the jury’s verdict. Also on his own the judge enjoined Fuller
and Hartman from saying that the plaintiffs had “committed
any wrongful act against Fuller,” a proposition that the jury had
not even been asked to consider, and from calling the plaintiffs
“con-men, crooks, forgers, thieves, racketeers, or [saying that
they] otherwise stole or converted property from Fuller or en-
gaged in any conspiracy against Fuller with any Catholic clergy,
10 Nos. 14-3308, 15-1839
lawyer (canon or civil) or investigator, or any Catholic lay per-
son promoting the devotion.” Those charges, too, had not ap-
peared in the instruction.
The injunction’s preamble, moreover, greatly expanded the
scope of the injunction by prohibiting “any similar statements
[that is, similar to the injunction’s specific prohibitions] that
contain the same sorts of allegations or inferences, in any man-
ner or forum,” as those listed in the body of the injunction. That
expansion was improper. An injunction must be specific about
the acts that it prohibits. Fed. R. Civ. P. 65(d)(1). How could
such vague terms as “similar” and “same sorts” provide guid-
ance to the scope of the injunction? The injunction also ordered
Hartman to take down his website, without the judge’s having
made a finding that everything published on the website de-
famed McCarthy or Langsenkamp (or both).
Had Fuller and Hartman made a timely objection to the en-
try of the injunction on the ground that the jury had not indi-
cated what defamatory statements it found the defendants to
have made, or on the ground that the judge should not have
added to the injunction prohibitions not proposed in the jury
instruction, or on the ground of the sheer indefiniteness of the
injunction, we would vacate it without further ado. Fuller and
Hartman missed the deadline for responding to McCarthy’s
motion for a permanent injunction, however, and ordinarily
such a miss would have justified the judge’s rejecting any objec-
tion to the injunction as untimely. But the injunction in this case
had the potential to harm nonparties to the litigation because
enjoining speech harms listeners as well as speakers. As this
same district judge noted in a previous case, “while Local Rule
7.1 does, as the Defendants note, provide that the ‘[f]ailure to
file a response or reply within the time prescribed may subject
the motion to summary ruling,’ the Court will not summarily
grant a motion where, as here, it is apparent from the face of the
Nos. 14-3308, 15-1839 11
motion in question that the movant is not entitled to the relief
sought.” Niswander v. Price, Waicukauski & Riley LLC, No. 1:08-
cv-1325-WTL-DML, 2010 WL 3718864, at *3 (S.D. Ind. Sept. 10,
2010); cf. Wienco, Inc. v. Katahn Associates, Inc., 965 F.2d 565, 568
(7th Cir. 1992) (a “motion for summary judgment cannot be
granted simply because there is no opposition”). The judge was
obligated to consider the public interest despite the waiver of
the parties.
The Bill of Rights speaks with its characteristic brevity in
prohibiting in the First Amendment “abridging the freedom of
speech” and the Supreme Court has interpreted the prohibition
to forbid among other things “prior restraints,” although there
are exceptions such as where national security could be endan-
gered by the speech sought to be enjoined. See Organization for a
Better Austin v. Keefe, 402 U.S. 415, 419–20 (1971); Near v. Minne-
sota ex rel. Olson, 283 U.S. 697, 713–23 (1931). ”Prior restraint” is
just a fancy term for censorship, which means prohibiting
speech before the speech is uttered or otherwise disseminated.
This has led to a belief in some quarters that defamation, which
is a type of speech, can never be enjoined. The problem with
such a rule is that it would make an impecunious defamer un-
deterrable. See Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d
339, 351 (Cal. 2007). He would continue defaming the plaintiff,
who after discovering that the defamer was judgment proof
would cease suing, as he would have nothing to gain from the
suit, even if he won a judgment. It is beyond unlikely that Fuller
and Hartman can pay what the judge has ordered them to pay
the plaintiffs. They will be broke, and if defamation can never
be enjoined, they will be free to repeat all their defamatory
statements with impunity. McCarthy and Langsenkamp will
have no remedy except to sue for damages and obtain another
money judgment that they won’t be able to collect.
12 Nos. 14-3308, 15-1839
We note in this regard Judge Wellford’s opinion in Loth-
schuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990), which an-
nounced the court’s holding on whether to grant an injunction
against defamatory statements. He said he’d “grant a narrow
and limited injunction to prohibit [the defendant] from continu-
ing and reiterating the same libelous and defamatory charges
he and his company have made against [the plaintiff]. … [A]n
injunction is necessary to prevent future injury to [the plain-
tiff’s] personal reputation and business relations. I, however,
would limit the application of such injunction to the statements
which have been found in this and prior proceedings to be false
and libelous.” Id. at 1208–09 (internal citations omitted). Most
courts would agree with Judge Wellford that defamatory
statements can be enjoined—see cases cited in Balboa Island Vil-
lage Inn, Inc. v. Lemen, supra, 156 P.3d at 347–49—provided that
the injunction is no “broader than necessary to provide relief to
plaintiff while minimizing the restriction of expression.” Id. at
352. The Supreme Court, however, has not yet addressed the
issue, though it has permitted injunctions preventing other
types of scurrilous speech. See, e.g., Pittsburgh Press Co. v. Pitts-
burgh Commission on Human Relations, 413 U.S. 376, 389–91
(1973) (upholding an order prohibiting advertisements found to
constitute gender-based discrimination); Kingsley Books, Inc. v.
Brown, 354 U.S. 436, 441–45 (1957) (upholding an injunction that
prohibited distributing materials found to be obscene).
But this is not a case in which we have to decide whether
defamation can ever be enjoined because, even if it can be, the
injunction issued by the district judge cannot be sustained. An
injunction against defamatory statements, if permissible at all,
must not through careless drafting forbid statements not yet de-
termined to be defamatory, for by doing so it could restrict law-
ful expression. The injunction that the district judge issued in
this case was of that character, owing to its inclusion of vague,
Nos. 14-3308, 15-1839 13
open-ended provisions for which there is no support in the jury
verdict or, so far as appears, in the district judge’s own evalua-
tion of the evidence. We have no jury findings as to which
statements were defamatory, and the plaintiffs didn't even ask
the judge to address that absence, so he didn’t. As illustrative of
the injunction’s resulting excessive breadth, notice that it orders
Hartman to take down his website, which would prevent him
from posting any nondefamatory messages on his blog; it
would thus enjoin lawful speech.
An injunction against speech harms not just the speakers but
also the listeners (in this case the viewers and readers). “[T]he
First Amendment goes beyond protection of the press and the
self-expression of individuals to prohibit government from lim-
iting the stock of information from which members of the pub-
lic may draw.” First National Bank of Boston v. Bellotti, 435 U.S.
765, 783 (1978); see also Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 390 (1969); Stanley v. Georgia, 394 U.S. 557, 564 (1969)
(“the Constitution protects the right to receive information and
ideas”). The injunction in this case is so broad and vague that it
threatens to silence Fuller and Hartman completely.
So what to do? As we said, the jury found defamation with-
out indicating which charges of defamation, of the nine listed in
the jury instruction, they believed had been proved. The judge
could have based the injunction on his own assessment of the
evidence, since the issuance of an injunction is the responsibility
of the trial judge rather than of the jury. But he didn’t do that;
he accepted the plaintiffs’ formulation of the injunction without
considering the defendants’ response, because it was untimely,
even though the preamble to the injunction was a patent viola-
tion of the First Amendment.
To conclude, we affirm the entire judgment except the in-
junction, which we vacate, leaving it to the district judge to de-
cide in the first instance whether to issue a new injunction, one
14 Nos. 14-3308, 15-1839
consistent with the criticisms in this opinion of the injunction he
issued.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS
Nos. 14-3308, 15-1839 15
SYKES, Circuit Judge, concurring. The only serious issue re-
maining in this long-running case is the propriety of the per-
manent injunction entered by the district court as an addi-
tional form of relief on the jury’s verdict, which found the de-
fendants liable for defamation and awarded damages. The in-
junction is deeply flawed for all the reasons described by my
colleagues: (1) the jury was not asked to identify which of nine
possible statements were false and defamatory, so we have no
findings to support the specificity requirement for a proper
injunction, see FED. R. CIV. P. 65(d)(1); (2) the enjoined state-
ments do not even correspond to the statements the plaintiffs
claimed were defamatory; and (3) the injunction is hopelessly
vague and overbroad. It plainly cannot stand.
Unlike my colleagues, however, I would not give the judge
an opportunity to correct these errors and try to fashion a nar-
rower injunction on remand. The jury’s verdict is too general
to support injunctive relief. As the proponents of this remedy,
the plaintiffs had the responsibility to propose a special-ver-
dict form that asked the jury to make “statement specific” def-
amation findings. They did not do so. Accordingly, we have
no idea which specific statements the jury found to be false
and defamatory; we have only the equivalent of a general ver-
dict that the defendants are liable for defamation. That kind
of verdict doesn’t contain the necessary factual findings to
support the issuance of a permanent injunction.
It’s true, as my colleagues note, that the issuance of an in-
junction is the responsibility of the trial judge, not the jury. See
Majority Op. at 13. Assuming for argument’s sake that the trial
judge has the authority to make the missing factual findings
himself, I wouldn’t allow that opportunity now. The plaintiffs
never asked the judge to address this problem either before or
16 Nos. 14-3308, 15-1839
after the jury returned its verdict. Nor have they asked us for
a remand to allow the judge to fill the gaps. I see no reason to
order this remedy sua sponte.
More fundamentally, the question whether an injunction
is permissible at all in this context is a sensitive and difficult
matter of First Amendment law. A court order permanently
enjoining future speech is a prior restraint and as such is pre-
sumptively unconstitutional. Any prior restraint comes to us
“bearing a heavy presumption against its constitutional valid-
ity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and
“permanent injunctions—i.e., court orders that actually forbid
speech activities—are classic examples of prior restraints” be-
cause they impose a “true restraint on future speech,” Alexan-
der v. United States, 509 U.S. 544, 550 (1993). As the Supreme
Court explained in its seminal case condemning prior re-
straints, an injunction against future speech—making any
publication of the suppressed speech punishable as con-
tempt—is “the essence of censorship.” Near v. Minnesota ex rel.
Olson, 283 U.S. 697, 713 (1931).
Consistent with this bedrock free-speech principle, the tra-
ditional rule in defamation law is that “equity does not enjoin
a libel or slander[;] … the only remedy for defamation is an
action for damages.” e360 Insight v. The Spamhaus Project, 500
F.3d 594, 606 (7th Cir. 2007) (quotation marks omitted); see also
Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps.
Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Kramer v. Thomp-
son, 947 F.2d 666, 677 (3d Cir. 1991); Comm. for Creative Non-
Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). This rule
“has enjoyed nearly two centuries of widespread acceptance
at common law.” Kramer, 947 F.2d at 677; see also Erwin
Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L.
Nos. 14-3308, 15-1839 17
REV. 157, 167–68 (2007); Michael I. Myerson, The Neglected His-
tory of the Prior Restraint Doctrine: Rediscovering the Link Be-
tween the First Amendment and the Separation of Powers, 34 IND.
L. REV. 295, 308–22 (2001).
The Supreme Court has not yet directly addressed
whether injunctive relief is a constitutionally permissible rem-
edy for defamation, but the general equitable rule accords
with the Court’s prior-restraint jurisprudence dating back to
Near, which invalidated a Minnesota statute that permitted
the issuance of temporary and permanent injunctions against
persons and organizations engaged in the publication of de-
famatory newspapers, magazines, or other periodicals. 283
U.S. at 702, 723; see id. at 712 (“[S]uppression is accomplished
by enjoining publication, and that restraint is the object and
effect of the statute.”).
An emerging modern trend, however, acknowledges the
general rule but allows for the possibility of narrowly tailored
permanent injunctive relief as a remedy for defamation as
long as the injunction prohibits only the repetition of the spe-
cific statements found at trial to be false and defamatory. See
Hill v. Petrotech Res. Corp., 325 S.W.3d 302, 308–09 (Ky. 2010);
Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 347–49 (Cal.
2007); Sid Dillon Chevrolet v. Sullivan, 559 N.W.2d 740, 746–47
(Neb. 1997); Advanced Training Sys., Inc. v. Caswell Equip. Co.,
352 N.W.2d 1, 11 (Minn. 1984); Retail Credit Co. v. Russell, 218
S.E.2d 54, 62–63 (Ga. 1975); O’Brien v. Univ. Cmty. Tenants Un-
ion, Inc., 327 N.E.2d 753, 755 (Ohio 1975); see also Lothschuetz v.
Carpenter, 898 F.2d 1200, 1208–09 (6th Cir. 1990) (Wellford, J.,
concurring in part and dissenting in part); id. (Hull, J., joining
Judge Wellford’s opinion on this question). These cases ap-
18 Nos. 14-3308, 15-1839
pear to draw general lessons from the Supreme Court’s deci-
sions in Pittsburgh Press Co. v Pittsburgh Commission on Human
Relations, 413 U.S. 376, 389–91 (1973), and Kingsley Books, Inc.
v. Brown, 354 U.S. 436, 441–45 (1957). I’m not sure I agree with
this modern trend.
Pittsburgh Press upheld an order prohibiting a newspaper
from organizing its classified advertising section in a way that
allowed employment ads to discriminate on the basis of sex—
for example, by having separate columns for “Male Help
Wanted” and “Female Help Wanted.” 413 U.S. at 379–80. In
Kingsley Books the Court upheld an injunction prohibiting the
distribution of a particular booklet found to be obscene after
a full trial. 354 U.S. at 445.
Pittsburgh Press and Kingsley Books arose in distinctive set-
tings that make it difficult to map their holdings onto defama-
tion law. Perhaps most notably, Pittsburgh Press did not ad-
dress an injunction at all, but instead involved a regulatory
order issued by a municipal commission that lacked the
power to punish by contempt. 413 U.S. at 390 n.14. And the
type of speech at issue in Kingsley—an obscene booklet—sug-
gests to me that some caution is in order before trying to ex-
trapolate a general rule. Defamation is materially different
from obscenity. There’s a meaningful distinction between en-
joining the distribution of a particular pamphlet once it’s been
found to be obscene and enjoining a person in perpetuity from
uttering particular words and phrases. Defamation by its na-
ture is highly contextual. A statement that is defamatory in
one circumstance, time, or place might not be defamatory in
another circumstance, time, or place. A permanent injunction
as a remedy for defamation does not account for constantly
changing contextual factors that affect whether the speech is
Nos. 14-3308, 15-1839 19
punishable or protected. If factual circumstances change in a
way that affects the defamation calculus, the person enjoined
must risk contempt or seek the court’s permission to speak.
As the Court said emphatically in Near, “[t]his is the essence
of censorship.” 283 U.S. at 713.
The emerging trend, moreover, is far from an inexorable
movement toward a new doctrine. In a thoughtful opinion,
the Third Circuit predicted that the Pennsylvania Supreme
Court would not relax the general rule that equity will not en-
join a libel. Kramer, 947 F.2d at 677–79. Similarly, the Texas Su-
preme Court has recently held, also in a thorough and
thoughtful opinion, that a permanent injunction as a remedy
in a defamation case is an impermissible prior restraint on
speech. See Kinney v. Barnes, 443 S.W.3d 87, 94–99 (Tex. 2014).
Kinney was decided as a matter of state constitutional law, but
the court noted that the state constitution’s free-speech guar-
antee is governed by First Amendment standards, at least on
this particular question. Id. at 91–92 (“We know of nothing to
suggest that injunctions restricting speech should be judged
by a different standard under the state constitution than the
First Amendment.”) (quotation marks omitted).
Finally, in 2004 the Supreme Court granted certiorari in
Tory v. Cochran to decide whether a permanent injunction is a
constitutionally permissible remedy in a defamation case, “at
least when the plaintiff is a public figure.” 544 U.S. 734, 736,
737 (2005). But the Court never reached the merits. The plain-
tiff died after the case was orally argued, so the Court sum-
marily vacated the injunction, which had “lost its underlying
rationale.” Id. at 737–38.
In short, the question whether the First Amendment for-
bids the issuance of a permanent injunction in a defamation
20 Nos. 14-3308, 15-1839
case is an important one and far from settled. By offering the
district court an opportunity to craft a new injunction, my col-
leagues imply that such a remedy is constitutionally permis-
sible—indeed appropriate in cases of judgment-proof defam-
ers who might not be deterred by a damages award. See Ma-
jority Op. at 11–12. I cannot join this part of the court’s opin-
ion. At the very least, it wrongly implies that a core liberty
secured by the First Amendment—the right to be free from
prior restraints on speech—does not protect people who lack
the means to pay a judgment.
For my part, I see no need to decide the constitutional
question now. The injunction is fatally flawed for the other
reasons identified by my colleagues, and as explained above,
I would not allow the plaintiffs and the court to try again.
Accordingly, I join the court’s opinion affirming on all is-
sues except the injunction. I also join the decision to vacate the
injunction. But my agreement stops there. I would remand
with narrower instructions: The district court should simply
issue an amended judgment without the flawed injunction.