The First Amendment is different.

Playing catch up in our perusal of recent First Circuit and Law Court decisions, a First Circuit decision involving a defamation claim caught our eye. Sindi v. El-Moslimany, No. 16-2347.  The panel were Judges Barron, Selya and Stahl. Judge Selya wrote the majority decision for himself and Judge Stahl, with Judge Barron dissenting in part. Eugene Volokh, a professor at UCLA, filed an amicus brief on behalf of himself.

The facts, in a nutshell, were that Defendant #1 and her husband hosted a Thanksgiving dinner at their home in 2010, with the plaintiff, a prominent Saudi scientist and entrepreneur then a visiting scholar at Harvard University. Several months later, Defendant #1 came to believe that her husband and the plaintiff were engaged in a “meretricious” relationship. #1 and her mother then launched a series of web posts accusing the Plaintiff of various untrue things.   Plaintiff sued for defamation, intentional infliction of emotional distress, tortious interference with contract, and tortious interference with advantageous relations. The jury found Defendant #1 liable for intentional infliction, absolved her mother of that charge; found both liable for defamation, tortious interference with contract, and tortious interference with advantageous relations. It awarded damages totaling $2.5 million. The trial judge (Talwani, J., D. Mass), cut the award roughly in half and entered a permanent injunction barring the Defendants from uttering six statements in the future.

On appeal, the First Circuit (the whole panel) upheld the damages as remitted except said there was insufficient evidence for the prospective advantage claim. Here comes the interesting part with the dissent.

After the oral argument on appeal, the panel directed the parties to submit supplemental briefs about the permanent injunction. At that point the “thoughtful” amicus brief came in (hmmm).

Basically, the remainder of the ruling by the majority is striking the injunction as prior restraint, while Judge Barron says hold the phone, this was waived. The majority spills a lot of ink as to why it is ignoring the “raise or waive rule,” and Judge Barron is questioning that choice.

In the end, the bottom line is that many judges look at First Amendment cases differently. This is why unpredictable alliances form on the Supreme Court when this issue is in play. Judges want to be the champion of free speech, even if waiver rules need a little bending.

The larger issue of if/when an injunction can be entered against future speech is an interesting one, discussed by both the majority and dissent. It looks like a split in the Circuits might be shaping up vis-à-vis the Ninth Circuit, but we will have to see how this all plays out. In the new internet world where speech never goes away, and there is instantaneous utterance to the universe via blogs, twitter etc., if someone who may or may not be judgment proof wants to keep spreading vicious lies about someone else, how to craft a remedy that will help the harmed person is going to need some careful consideration.