Federal Court Applying W. Va. Law Issues Anti-Libel Injunction, Which W. Va. Law Appears to Forbid
Today’s decision in Knight v. McLaughlin (N.D. W. Va.) adopts the Report and Recommendations that entered a default judgment for the plaintiff in a libel case; the underlying libel alleged that plaintiff had sexually assaulted a 12-year-old girl (within the Society for Creative Anachronism). The case was litigated under West Virginia law, though in federal court because of the diversity of citizenship between the parties.
The interesting legal twist here is that the court enjoined “Defendant from publishing the same or similar statements about Plaintiff that are the subject of this matter.” Narrow anti-libel injunctions are generally viewed as constitutional under modern First Amendment law; but West Virginia appears to be one of the few states that still forbids them under its own law, and I think the district court should have applied that law and refrained from issuing the injunction. I also think that injunctions against publishing “similar statements” are unconstitutionally vague and overbroad.
I submitted an amicus brief on my own behalf so arguing; the court denied as moot my motion for leave to file the brief—but I assume that it did read the brief, and just concluded that my arguments were mistaken. Unfortunately, since the defendant hasn’t really been participating in the litigation, it seems unlikely that she will appeal, so the Fourth Circuit won’t get a chance to consider the question. But I thought I’d again pass along my brief, just in case some people are interested
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Summary of Argument
[1.] Under Erie, this Court should not issue an injunction unless state law authorizes it. Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015); Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991). And West Virginia law appears to forbid anti-libel injunctions. Kwass v. Kersey, 81 S.E.2d 237, 245 (W. Va. 1954).
[2.] If this Court nonetheless believes that West Virginia law does not bar such an anti-libel injunction, the First Amendment would not bar it, either, if the junction is properly narrowed and provides sufficient procedural protections to the defendant.
[I.] West Virginia law, which should be applied here under Erie, appears to forbid anti-libel injunctions
“Erie doctrine requires courts to apply state substantive law to a request for permanent injunctive relief in diversity cases.” Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211 (4th Cir. 2015). “Allowing different remedies in state law cases heard in federal courts on pendent jurisdiction would undermine the ‘twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.'” LaShawn A. by Moore v. Barry, 144 F.3d 847, 853 (D.C. Cir. 1998) (quoting Hanna v. Plumer, 380 U.S. 460, 468 (1965)). (The matter is uncertain in some circuits, see, e.g., Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 341 n.7 (5th Cir. 2015) (so noting), but this Circuit’s view appears to be set forth by Lord & Taylor.) See also Kramer v. Thompson, 947 F.2d 666, 676 (3d Cir. 1991) (expressing sympathy for injunctions in First Amendment cases, but concluding that Pennsylvania law forbids such injunctions, and thus reversing such an injunction).
And West Virginia law appears to forbid anti-libel injunctions. Kwass v. Kersey, 81 S.E.2d 237, 245 (W. Va. 1954), observed that “we have found no authority in the United States which holds that mere defamation can be enjoined,” and therefore reversed an anti-libel injunction. Roberts v. Stevens Clinic Hosp., Inc., 345 S.E.2d 791, 808 (W. Va. 1986), cited Kwass favorably, albeit in a non-libel case, for the broad proposition that the West Virginia Constitution preserves traditionally recognized rights to trial by jury.
[II.] If an injunction is available, it should be framed narrowly, and with adequate procedural safeguards
To be sure, the modern trend in most states is in favor of allowing anti-libel injunctions following a judgment on the merits that certain speech is libelous and therefore constitutionally unprotected; thirty-four states appear to allow such injunctions, and only six, including West Virginia, forbid them. Eugene Volokh, Anti-Libel Injunctions, 168 U. Pa. L. Rev. 73, 77, 137-46 (2019), http://www.law.ucla.edu/volokh/libelinj.pdf. Properly limited, such injunctions should be seen as consistent with the First Amendment. See id. at 105-17; for Fourth Circuit cases so holding, see Brennan v. Stevenson, Civ. No. JKB-15-2931, 2015 WL 7454109, at *5 (D. Md. Nov. 24, 2015) (dictum) (taking the view that an anti-libel injunction would be a permissible injunction against “unprotected speech,” and thus consistent with the First Amendment); Maye v. Worrell, No. 13-cv00510, 2013 WL 5545077, at *3 (M.D.N.C. Oct. 8, 2013) (issuing anti-libel injunction and rejecting First Amendment objection).
And perhaps Kwass should no longer be relied on, given its stress on the distinction between law and equity, see, e.g., 81 S.E.2d at 243-46—a distinction abolished in West Virginia in 1960, State ex rel. AmerisourceBergen Drug Corp. v. Moats, 859 S.E.2d 374, 383 (W. Va. 2021). Indeed, in Delaware, which still maintains a sharp law/equity distinction, the Court of Chancery held that Delaware’s chancery courts generally lack jurisdiction over libel cases in the first insta
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