Can A Defamation Claim Justify a Permanent Injunction?
The injunction the California court issued is very probably doomed, for the Supreme Court will almost certainly hold that it is contrary to the First Amendment – for a number of reasons. First, defamation claims typically lead to damages awards – not to court orders like injunctions. In this case, Cochran was not able to show a concrete way in which his firm was hurt by the picketing – for instance, a particular prospective client that was lost. In most cases, the failure to prove damages would mean the claim simply could not succeed. Here, however, the judge, rather than ruling against Cochran, shifted the remedy – choosing to issue an injunction rather than awarding damages. Second, the doctrine of “prior restraint” strongly disfavors any court order that affects words that have not yet been said (or posted, or published, or put on a picket sign, as the case may be). Precisely because damages are available if the words are defamatory, the court generally allows the words to be commun
