When you’re dealing with someone making statements about you that are damaging to your reputation, your first thought probably isn’t “I want to be compensated for the loss of my reputation,” but rather “I want them to stop saying those damaging things.” When faced with defamatory statements, the gut reaction is to want to prohibit people from saying defamatory things. And while of course, we know that suing for defamation is a legal option, it’s not quite so simple.
Remember that thing called the 1st Amendment? You might remember it from a high school civics class or from hearing it tossed around in the news. That’s the part of the Constitution that says the government won’t restrict an individual’s freedom of speech – but it’s not an absolute right we’ve since come to understand. One thing that’s not protected under this right? Libelous speech – this means defamatory statements. “Great!” you think, “defamation isn’t covered by the First Amendment, so that means I can stop people from saying bad things about me!” Not so fast – there has to be a specific order of events in order to stop someone from saying something defamatory by getting an injunction.
First, why is it important that things happen in a specific order? The answer is simple; we want to make sure that people’s First Amendment right to free speech is preserved as much as possible.
This means, we don’t want people being prevented from exercising their right just because someone feels that their statements might be defamatory, because if it turns out they aren’t guilty of defamation at all but an injunction has been granted anyway, then they’ve just had their First Amendment right infringed upon. However, if you go to a court and argue your case for defamation against someone who said harmful things about you, and the court rules that the statements were indeed defamatory, then under the law, the statements do not fall under the First Amendment. At this point, a court can legally grant an injunction, stopping the person from repeating the defamatory statements.
So, what are the takeaways here? First, you won’t be successful trying to convince a judge to grant an injunction unless you’ve successfully argued your defamation case as well. Second, while this seems frustrating when faced with reputational harm, it is important to remember that this is the court’s best effort to balance the interests of preventing defamatory statements and preserving citizens’ First Amendment rights. Lastly, while this doesn’t fix the fact that defamatory statements were made in the first place, it is a major tool in your arsenal of damage control, because it prevents the person from repeating and spreading the defamatory statements further.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation, and privacy.