The Virginia Defamation Law Blog
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.