Make It Stop: What A Court Can And Can't Order A Defamation Defendant To Stop Saying

Vandeventer Black LLP

A defamatory statement or publication can cause serious damage to a person’s business or professional reputation. Monetary damages are always available to the victim of defamation, but in some cases, damages do not fit a client’s situation or needs. For example, in many circumstances, the person making the defamatory statements has done so on numerous occasions and continues to spread the harmful lies. Furthermore, some defendants have so few assets they are essentially judgment proof, meaning they have no incentive to stop repeating the defamation. What good is a judgment against the speaker if the defamation is going to continue? Understandably, many businesses and individuals want the court to make the defamer stop. And Virginia courts can do so by granting an injunction in defamation cases. If the defamer refuses to comply, the court may hold the individual in contempt and impose additional damages or even jail time. However, a plaintiff has many hurdles to success in getting an injunction, and the impact of such an injunction may be limited.

Two major requirements for a defamation injunction are (1) irreparable injury and (2) that the injunction not infringe the First Amendment freedom of speech. To obtain an injunction, the plaintiff must show that he or she has suffered “irreparable harm,” typically meaning that monetary damages are insufficient to make the plaintiff whole.[1] At first glance, it appears that defamation plaintiffs face a significant challenge in satisfying this requirement because courts generally do not issue injunctions to prevent torts, like defamation.[2] In one recent case, however, the U.S. District Court for the Eastern District of Virginia recognized one form of irreparable injury that is common to many defamation cases: a defendant that won’t stop defaming the plaintiff.[3] The court reasoned that in some cases, because a defendant has repeatedly defamed someone, there is a danger that the plaintiff will have to return to the court after each future defamatory statement, creating a multiplicity of suits and denying the plaintiff closure. Additionally, some cases may result in damages insufficient to deter a wealthy defendant. In other cases, even a substantial damage award may have no effect on someone who has no significant assets and is essentially judgment proof.[4]

The second requirement is that the injunction not infringe on First Amendment free speech protections. The First Amendment limits, among other things, the government’s ability to place restraint on speech before it happens, which is precisely what an injunction to prevent future defamation would do. Courts will allow such an injunction, however, so long as the scope of the injunction is closely tailored to the statements the court has ruled are defamatory.[5] Such an injunction can go a long way in deterring a defendant from continuing to defame you or your business. It is important as well that the injunction is as broad as constitutionally permissible to ensure the defendant won’t be able to easily rephrase the statement into something outside the scope of the injunction. The court cannot order the defendant to stop talking about you or your business entirely, however, so the defendant can still make negative opinion statements. Therefore, an injunction can be helpful and is a vital remedy to seek in a defamation suit, but good networking, marketing, and maintaining your and your business’s reputation are also vital to weathering harmful defamatory accusations.

[1] D’Ambrosio v. D’Ambrosio, 45 Va. App. 323, 342 (2005).

[2] Alberti v. Cruise, 383 F.2d 268, 272 (4th Cir. 1967).

[3] B2Gold Corp. v. Christopher, Case No. 1:18-cv-1202, 2020 U.S. Dist. LEXIS 93734, at *17 (E.D. Va. May 28, 2020).

[4] Id.

[5] See id. at *18-19; Alberti, 383 F.2d at 272.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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