Prior Restraints of Defamatory Speech

In Virginia, injunctions are considered an extraordinary remedy and, due to First Amendment concerns, are generally not available to enjoin a person from speaking. Known as “prior restraints,” injunctions against defamatory speech are disfavored and bear a heavy presumption against validity. The Supreme Court has written that “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them…beforehand.” (See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)). There are exceptions, however, such as (a) when a defendant’s defamatory speech was uttered in connection with the commission of a separate tort, (b) when a defendant engages in repeated defamation, or (c) when the speech has already been adjudicated to be defamatory.

Although neither the Virginia Supreme Court nor the Fourth Circuit has had the opportunity to consider whether a prevailing defamation plaintiff may obtain an injunction prohibiting the defendant from repeating the speech adjudicated to be defamatory, most courts around the country approve of the practice, reasoning that any other rule “would make an impecunious defamer undeterrable.” (McCarthy v. Fuller, 810 F.3d 456, 462 (7th Cir. 2015)). Earlier this year, the Eastern District of Virginia followed the trend and granted an injunction to restrain the defendant from repeating certain statements held to be defamatory.

Here’s what happened in B2Gold Corp. v. Christopher, according to the Magistrate’s Report. B2Gold runs a gold-mining operating in Nicaragua. Christopher, apparently in an attempt to defraud and extort B2Gold of millions of dollars and harm its reputation, distributed a document entitled the “Spectre Report” that purported to describe B2Gold’s involvement in “a growing conspiracy over the last 10 years to defraud the people and the government of the patrimony of her gold.” The Spectre Report contained statements imputing the commission of various crimes of moral turpitude such as bribery, fraud, and false reporting of income. Noting that a corporation can be defamed per se by statements “which cast aspersion on its honesty, credit, efficiency or its prestige or standing in its field of business” (see Swengler v. ITT Corp. Electro-Optical Prods. Div., 993 F.2d 1063, 1071 (4th Cir. 1993)), the magistrate judge found that Christopher (who was in default) had committed defamation per se with respect to several statements in the Spectre Report.

B2Gold didn’t just want an award of money damages, however. After all, Mr. Christopher had indicated he had not retained a lawyer because he was in financial distress. B2Gold wanted an injunction to prevent Christopher from repeating the defamatory statements. The magistrate judge found injunctive relief to be appropriate with respect to the statements found to be defamatory, and the district judge agreed.

Noting with approval that “several appellate courts have held that a court may enjoin a defendant from repeating” statements found in a judicial proceeding to be false and defamatory, the court applied the usual factors needed to obtain permanent injunctive relief; namely, (1) that the plaintiff suffered an irreparable injury; (2) that monetary damages are inadequate to compensate for that injury; (3) that the balance of hardships tips in the plaintiff’s favor; and (4) that the public interest would not be disserved by a permanent injunction. (See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). The court held that injunctive relief was zipper-300x200particularly appropriate here considering Christopher had engaged in repeated acts of defamation per se.

B2Gold had properly established that dissemination of the false and defamatory statements in the Spectre Report caused it irreparable harm. There was no way it could attempt to reapir its reputation by contacting the recipients of the Spectre Report because their identities were unknown. Money damages could not adequately remedy this harm because, absent injunctive relief, Christopher (who was essentially judgment proof) could continue making false and defamatory statements, necessitating a succession of lawsuits. The balance of hardships tipped in B2Gold’s favor because it really wasn’t much of an imposition to order Christopher not to repeat a short list of false and defamatory statements. Finally, the public interest would not be harmed by granting the injunction since the public would continue to have access to Christopher’s truthful, non-defamatory speech.

The court did note that to craft an appropriate injunction, the order would have to (1) state the reasons why it issued; (2) state its terms specifically; and (3) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required. (See Fed. R. Civ. P. 65(d)(1)). The court indicated it would enter such an order, permanently restraining and enjoining Christopher from publishing the statements found to be defamatory to recipients within the United States by mail, email, or other social media.


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