Seventh Circuit Review


Ann C. Motto


The First Amendment prohibits prior restraints on speech. Indeed, prior restraints are the most serious and the least tolerable infringements on First Amendment rights. Because of this, for nearly 200 years, courts stood by the maxim that "equity will not enjoin a libel"; traditionally, money damages were the only remedy available to a defamed plaintiff. However, there is a modern trend among some state and federal courts allowing the issuance of a narrow, permanent injunction against statements that have been adjudicated defamatory.

In December 2015, the Seventh Circuit Court of Appeals in its decision McCarthy vs. Fuller became the second circuit court to permit a district court to enter such an injunction. The Supreme Court has never answered the question of whether the First Amendment forbids the issuance of an injunction against defamation, but courts ought to realize that each time a permanent injunction against defamation is granted in favor of one plaintiff, everyone’s constitutional right to free speech is chilled and eroded.

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