Once the judge has granted the plaintiff’smotion for aninjunction, both the defendant and the plaintiff maymove to modifyor dissolve it because either the law or the factual setting has changed.512
A judgment for money damages, as distinguishedfroman injunction, is entitled to res judicata preclusion.513 The rulescircumscribe a judgment
loser’s ability toreopenorescape amoney judgment.514 If the time to reopen
it has expired, an incorrect money judgment perpetuates error. Ifthe defamationjudgment above was for money damages and several years had passed when the appellate court reversed the substantive rule, the plaintiff, relying on preclusion, would keep the money.515 On the other hand:
It is one thingtosaythat, once amoneyjudgment hasbeen paidand appealshave beenexhausted,thetransaction is over,andquite another to saythat apartymaybe requiredunderthreat ofcontempt sanctionstocontinue complying with an injunction that no longer makes legal orfactual sense.516
Suppose a defendant orally accused aplaintiff of being “a queer.” She is enjoined not to repeat that epithet. Then the state’s courts hold that an
510. See Gubarevv. Buzzfeed, Inc., 253 F. Supp. 3d1149, 1152, 1160–61 (S.D. Fla. 2017).
511. RENDLEMAN,supra note 146, at 625; Bray,supra note 382, at 1112–13. 512. See FED.R.CIV.P. 60(b)(5).
513. See, e.g., Reed v. McKune, 298 F.3d 946, 950–51 (10th Cir. 2002). 514. See HAZARD,LEUBSDORF &BASSETT, supra note 321, § 15.15, at 719.
515. See RESTATEMENT (THIRD) OFRESTITUTIONANDUNJUST ENRICHMENT§18 cmt. a, n.a (AM.LAWINST.2011) (citing Marriot v. Hampton (1967) 101 Eng. Rep. 969, 969).
oralaccusation ofhomosexualityisnotslander perse.517 The judgeshould
respond tothedefendant’s motion bydissolvingthe injunctionbecause the law has changed and the defendant’s conduct enjoinedis no longer a tort contraryto law. The California court in Balboa discussed the defendant’s use ofthe California versionofthis motion when the factual orlegal context changes.518
Blasi argues against an injunction as a prior restraint that aninjunction’s duration is not limited.519 The availability ofthe defendant’s motion to
modifyor dissolvean injunctionrefutes that argument. If a defamation judgment was an injunction and the substantive rule changes,the defendant’s motion to dissolve it should succeed.
The coin has two sides. Inour hypothetical, the judge has granted plaintiff Baldder an injunction that forbids defendant Lokki fromcalling Baldder a thief. Suppose that after the judge grantsthe injunction,Lokki learnsthatBaldder stole anothercondoowner’scoincollection. Heis indeed athief. After his peculations are uncovered, may Lokki referto Baldder as a thief? Once the truth isout, Lokki’smotion to dissolve the injunction is aless risky technique than ignoring the injunction and risking contempt. It should succeed.520
Emerson equated the injunction inNear v. Minnesota ex rel. Olson with executive censorship because “the practical effect of the injunction was that the publishers, in order to avoidrisk of summarypunishment for contempt, had toclear material in advance with thejudge.”521 The Texas court said
that the defendant’s opportunityto move to avoid an anti-defamation injunction did not answer theconcern that itwas an improper prior restraint.522
517. Yonatyv.Mincolla,945N.Y.S.2d774,777–79(App.Div.2012). See generally
Case Comment, Tort Law—Defamation—New York Appellate Division Holds that the Imputation of Homosexuality Is No Longer Defamation Per Se.—Yonatyv. Mincolla, 126 HARV.L.REV. 852, 852 (2013) (quoting Yonaty, 945 N.Y.S.2d at 776).
518. Balboa Island Vill. Inn, Inc. v. Lemen, 156 P.3d 339, 353(Cal. 2007). 519. See Blasi,supra note 61, at 19.
520. Californiarejectsthecollateralbarrule.Toryv.Cochran, 544U.S. 734, 739(2005) (Thomas, J., dissenting). The defendant could violate the injunctionand raise the erroneous injunctionas a defense tocriminal contempt. Id. at740 (citing Peoplev. Gonzalez, 910 P.2d 1366, 1375 (Cal. 1996)).
521. EMERSON, supra note 156, at 506; see also Nearv. Minnesotaex rel. Olson, 283
U.S. 697, 712(1931) (“[T]he renewal of the publication . . . would constitute acontempt and . . . would lay a permanent restraint upon the publisher, to escape whichhe must satisfythe court as tothecharacterof a new publication.”).
522. See Kinneyv. Barnes, 443S.W.3d 87, 98 (Tex. 2014) (quoting Balboa Island Vill. Inn, 156 P.3d at 353).
Could an injunction threatencensorship because the defendant couldmove tothetrialjudgetoconstrue, modify,ordissolveit? Wouldthedefendant’s motion toconstrue, modify, or dissolve aninjunction threaten free expression as much as executive-licensing censorship?523 Ido not think so. An injunction
that forbids thedefendant fromrepeating proved defamation maybecome improper because the defendant’s mental state maychange,thelawmay change, the context maychange, or the false statement maybecome true.524
AlthoughtheTexas court disagreed,thejudge’s responseto adefendant’s post-injunction motion to modifyor clarify because of alegal orfactual change is a part of the injunction process that should be available for an injunctionagainstthedefendant’sdefamation.525 The risk that the judge may
develop a proprietary attitude toward an injunctionis one the systemneeds to accept.526