FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Indira Talwani, U.S. District Judge]
A. Kiernan, with whom Bonner Kiernan Trebach & Crociata,
LLP was on brief, for appellants.
Volokh, pro se, on brief for Eugene Volokh, amicus curiae.
H. Rich, with whom Suzanne Elovecky and Todd & Weld LLP
were on brief, for appellee.
Barron, Selya and Stahl, Circuit Judges.
case implicates a plethora of issues arising in the shadow of
the First Amendment. Most notably, it requires us to address
the power of a court to impose a prior restraint in the form
of a permanent injunction forbidding the publication of words
- words that the court believes have been used to defame the
plaintiff in the past and are likely to be repeated. The case
also presents issues as to whether, consistent with the First
Amendment and state law, the evidence adduced at trial
allowed the jury to find defendant-appellant Samia
El-Moslimany (Samia) liable for intentional infliction of
emotional distress and to find Samia and her mother,
defendant-appellant Ann El-Moslimany (Ann), liable for
defamation, tortious interference with contract, and tortious
interference with advantageous relations. Finally, it
presents issues as to whether the damages awarded on these
claims, totaling in the millions of dollars, are excessive.
careful consideration, we conclude that the district
court's permanent injunction cannot survive the strict
scrutiny that the Constitution demands for prior restraints
on speech. Thus, we vacate the injunction. We affirm the
jury's findings of liability on most (but not all) of Dr.
Sindi's tort claims and affirm the corresponding money
judgments (some that represent the jury's assessment of
damages and some that represent the district court's
remittitur of jury awards). Not so the claim for tortious
interference with advantageous relations: finding the
evidence insufficient, we vacate the jury awards on that
claim and direct the entry of judgment for the appellants.
offer only a sketch of the relevant events and travel of the
case, reserving a fuller elaboration for our discussion of
specific issues. For these purposes, we take the facts in the
light most hospitable to the jury verdict, consistent with
record support. See Casillas-Díaz v. Palau,
463 F.3d 77, 79 (1st Cir. 2006).
November of 2010, Samia and her husband, Fouad Dehlawi,
hosted a Thanksgiving dinner at their Seattle-area home.
Their guest list included the plaintiff, Dr. Hayat Sindi, a
prominent Saudi scientist and entrepreneur who was then a
visiting scholar at Harvard University. Several months later,
Samia came to believe that her husband and Dr. Sindi were
engaged in a meretricious relationship. For the next five
years, Samia and Ann published a series of web posts
pertaining to Dr. Sindi in a variety of forums, including
Amazon.com, Facebook, the Washington Post website,
and various blogs. They also sent e-mails regarding Dr. Sindi
to members of the scientific community and to investors in
Dr. Sindi's Institute for Imagination and Ingenuity (i2
Institute). Among other calumnies, the appellants accused Dr.
Sindi of fraudulently obtaining her doctorate by paying a
colleague to ghostwrite her dissertation, repeatedly lying
about her age in order to obtain awards meant for younger
scientists, and inflating her resumé by falsely
touting her role in Harvard's Diagnostics for All
Sindi did not take this campaign of vilification lightly. On
January 25, 2013, she sued Samia and Ann in a Massachusetts
state court. Her complaint alleged defamation, intentional
infliction of emotional distress, tortious interference with
contract, and tortious interference with advantageous
relations. Citing diversity of citizenship and the existence
of a controversy in the requisite amount, Samia and Ann
removed the case to the federal district court. See
28 U.S.C. §§ 1332(a), 1441(a). Following some
pretrial skirmishing (not relevant here) and extensive
discovery, the case went to trial on July 11, 2016.
trial lasted seven days (exclusive of jury deliberations). At
the close of all the evidence, the district court denied the
appellants' motion for judgment as a matter of law,
see Fed.R.Civ.P. 50(a), and sent the case to the
jury. In the course of its jury instructions, the court
encouraged the jurors to consult a nine-page document
(referred to as a "chalk"), which listed
approximately 132 allegedly defamatory statements attributed
to Samia and/or Ann. Neither Samia nor Ann objected to this
portion of the instructions.
jury returned a general verdict in Dr. Sindi's favor on
all but one of the submitted claims. It found Samia liable
for intentional infliction of emotional distress; absolved
Ann of that charge; and found both Samia and Ann liable for
defamation, tortious interference with contract, and tortious
interference with advantageous relations. The jury awarded
damages totaling $3, 500, 000.
jury verdict generated a flurry of post-trial activity. Samia
and Ann renewed their motion for judgment as a matter of law,
see Fed.R.Civ.P. 50(b), and moved alternatively for
either a new trial or a remittitur, see Fed.R.Civ.P.
59(a), (e). For her part, Dr. Sindi moved for a permanent
injunction, seeking to enjoin Samia and Ann from uttering or
otherwise publishing a multitude of described statements. On
August 18, 2016, the district court granted Dr. Sindi's
motion and enjoined the appellants from publishing
"orally, in writing, through direct electronic
communications, or by directing others to websites or blogs
reprinting" six statements that the district court
concluded were defamatory.
six weeks later, the district court denied the
appellants' motion for judgment as a matter of law. At
the same time, the court denied their alternative motion for
a new trial or a remittitur, with two exceptions. First, the
court granted a remittitur of the damages awarded against
Samia for tortious interference with contract (directing Dr.
Sindi to remit all of the $2, 000, 000 verdict on that claim
in excess of $576, 000). See Sindi v. El-Moslimany,
No. 13-cv-10798, 2016 WL 5867403, at *6 (D. Mass. Oct. 6,
2016). Second, it granted a remittitur of the damages awarded
against Ann for tortious interference with contract
(directing Dr. Sindi to remit all of the $400, 000 verdict on
that claim in excess of $144, 000). See id. The
court proceeded to enter an amended final judgment, which
included prejudgment interest, see Mass. Gen. Laws
ch. 231, § 6B, costs, and the permanent
timely appeal ensued. Following oral argument, we directed
the parties to submit supplemental briefs designed to answer
certain questions affecting the validity vel non of the
permanent injunction. We have received those supplemental
briefs, along with a thoughtful amicus brief, and the appeal
is now ripe for decision.
review the district court's denial of a motion for
judgment as a matter of law de novo. See Trainor v. HEI
Hosp., LLC, 699 F.3d 19, 26 (1st Cir. 2012). In
conducting this tamisage, we examine the record in the light
most favorable to the nonmovant and will reverse "only
if reasonable persons could not have reached the conclusion
that the jury embraced." Sanchez v. P.R. Oil
Co., 37 F.3d 712, 716 (1st Cir. 1994).
review of the district court's denial of a motion for a
new trial under Rule 59 "is even more
circumscribed." Id. at 717. A trial court may
"set aside a jury's verdict and order a new trial
only if the verdict is against the demonstrable weight of the
credible evidence or results in a blatant miscarriage of
justice." Id. When a movant attacks an award of
damages as excessive, a court may remit the award only if
"the award exceeds any rational appraisal or estimate of
the damages that could be based upon the evidence before
it." Trainor, 699 F.3d at 29 (quoting
Wortley v. Camplin, 333 F.3d 284, 297 (1st Cir.
2003)). We review the district court's adjudication of a
motion for either a new trial or a remittitur for abuse of
discretion. See id.; Sanchez, 37 F.3d at
this case comes to us by means of our diversity jurisdiction,
we must look to state law for the substantive rules of
decision. See Erie R.R. Co. v. Tompkins, 304 U.S.
64, 78 (1938); Sanders v. Phoenix Ins. Co., 843 F.3d
37, 42 (1st Cir. 2016). In this instance, we - like the court
below - follow the parties' lead and look to the
substantive law of Massachusetts. See Shay v.
Walters, 702 F.3d 76, 80 (1st Cir. 2012).
begin our analysis with the defamation claims. In
Massachusetts, a defamation plaintiff must establish that
"[t]he defendant made a statement, concerning the
plaintiff, to a third party"; that such "statement
could damage the plaintiff's reputation in the
community"; that "[t]he defendant was at fault in
making the statement"; and that "[t]he statement
either caused the plaintiff economic loss . . . or is
actionable without proof of economic loss." Ravnikar
v. Bogojavlensky, 782 N.E.2d 508, 510-11 (Mass. 2003).
"A false statement that 'would tend to hold the
plaintiff up to scorn, hatred, ridicule or contempt, in the
minds of any considerable and respectable segment in the
community,' [is] considered defamatory." Phelan
v. May Dep't Stores Co., 819 N.E.2d 550, 553 (Mass.
2004) (quoting Stone v. Essex Cty. Newspapers, Inc.,
330 N.E.2d 161, 165 (Mass. 1975)).
First Amendment, made applicable to the states through the
Fourteenth Amendment, overlays state defamation law and
imposes a number of constraints on a plaintiff who seeks
relief for defamation. See N.Y. Times Co. v. Sullivan,
376 U.S. 254, 276-77, 283-84 (1964). This is as it should be:
"it is essential that the First Amendment protect some
erroneous publications as well as true ones" in order
"to insure the ascertainment and publication of the
truth about public affairs." St. Amant v.
Thompson, 390 U.S. 727, 732 (1968). It follows that a
public figure may recover for defamation only if she proves
actual malice by clear and convincing evidence. See Gertz
v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). That
is, such a plaintiff must demonstrate with convincing clarity
that "the defamatory falsehood was made with knowledge
of its falsity or with reckless disregard for the
truth." Id. This requirement applies both to
plaintiffs whose "pervasive fame or notoriety"
makes them "public figure[s] for all purposes and in all
contexts" and to plaintiffs who are public figures with
respect to the "limited range of issues"
surrounding the claimed defamation. Id. at 351.
proving actual malice, a defamation plaintiff must shoulder a
heavy burden. The Supreme Court has underscored that
"[a] reckless disregard for the truth . . . requires
more than a departure from reasonably prudent conduct."
Harte-Hanks Commc'ns, Inc. v. Connaughton, 491
U.S. 657, 688 (1989) (internal quotation marks omitted).
Thus, a public-figure plaintiff must point to clear and
convincing evidence that the defendant made the challenged
statement with a "high degree of awareness of [its]
probable falsity," Vascular Sols., Inc. v. Marine
Polymer Techs., Inc., 590 F.3d 56, 60 (1st Cir. 2009)
(per curiam) (quoting Garrison v. Louisiana, 379
U.S. 64, 74 (1964)), or "entertained serious doubts as
to the truth of his publication," id. (quoting
St. Amant, 390 U.S. at 731).
course, a statement is not actionable "unless in a given
context it reasonably can be understood as having an easily
ascertainable and objectively verifiable meaning."
Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127
F.3d 122, 129 (1st Cir. 1997). Statements that are merely
"'imaginative expression'" or
"'rhetorical hyperbole'" - in other words,
statements that "no reasonable person would believe
presented facts" - are not actionable. Id. at
128 (quoting Milkovich v. Lorain Journal Co., 497
U.S. 1, 17, 20 (1990)).
caution, however, that the First Amendment does not command
"a wholesale defamation exemption" for statements
that "might be labeled 'opinion[s].'"
Milkovich, 497 U.S. at 18. Rather, "[a]
statement couched as an opinion that presents or implies the
existence of facts which are capable of being proven true or
false can be actionable." Levinsky's, 127
F.3d at 127.
First Amendment imposes yet another safeguard with respect to
awards of damages for defamation. It requires an appellate
court to review the supporting evidence independently.
See Bose Corp. v. Consumers Union of U.S., Inc., 466
U.S. 485, 510-11 (1984). Thus, we must afford plenary review
to "mixed fact/law matters which implicate core First
Amendment concerns," such as the jury's conclusions
regarding falsity and actual malice. AIDS Action Comm. of
Mass., Inc. v. MBTA, 42 F.3d 1, 7 (1st Cir. 1994);
see Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp.
of Bos., 515 U.S. 557, 567 (1995). Put another way, we
must ensure that the jury's verdict "does not
constitute a forbidden intrusion on the field of free
expression." N.Y. Times Co., 376 U.S. at 285.
"[i]ndependent review is not a limitless ransacking of
the record as a whole." Mandel v. Bos. Phoenix,
Inc., 456 F.3d 198, 208 (1st Cir. 2006). The usual
deferential Rule 50 standard applies to mixed fact/law
questions that do not implicate First Amendment concerns.
See Bose Corp., 466 U.S. at 514 n.31. Causation is
such a question. See Fiori v. Truck Drivers, Local
170, 354 F.3d 84, 89 (1st Cir. 2004). So, too, deference
is due to the jury's assessment of witness credibility.
See Hurley, 515 U.S. at 567; Mandel, 456
F.3d at 208.
this backdrop in place, we proceed to examine the
vitriol-soaked comments that fueled the defamation claims at
issue here. Our starting point is clear: Dr. Sindi, an
appointee of Saudi King Abdullah to his government's
Shura Council and a goodwill ambassador of the United Nations
Educational, Scientific and Cultural Organization, concedes
that she is at least a limited-purpose public figure. We
must, therefore, independently mine the record to determine
whether Dr. Sindi proved by clear and convincing evidence
that Samia and Ann maliciously defamed her. See
Gertz, 418 U.S. at 342.
a thorough appraisal, we conclude - without serious question
- that the defamation verdicts pass constitutional muster.
While the record reflects a grotesque number of false
statements that hold Dr. Sindi up to public scorn and
contempt (including a majority of the statements memorialized
on the chalk), the law of the case, as exemplified by the
district court's unchallenged jury instructions, requires
only that Dr. Sindi show that one or more defamatory
statements were made.Therefore, no useful purpose would be
served by evaluating separately each of the approximately 132
allegedly defamatory statements listed on the chalk. Given
the law of the case, it suffices for us to shine the light of
our inquiry on three categories of statements that were
primary focal points of the trial. No more is exigible to
validate the defamation verdicts under the district
court's jury instructions.
start with Samia's repeated accusation - variously
phrased and published in myriad web postings and in e-mails
to members of the scientific community, journalists,
investors in the i2 Institute, and State Department officials
- that Dr. Sindi fraudulently obtained her Ph.D. from
Cambridge University. Representative of this category of
statements is a February 12, 2014, e-mail to the i2
Institute's board members and sundry journalists that:
[Dr. Sindi's] research was allegedly conducted and her
dissertation written, by Adrian Stevenson, a postdoctoral and
very intimate friend of Sindi. According to Sindi's
live-in boyfriend from 2001 to 2005, throughout the writing
of her dissertation, Stevenson was allegedly financially
compensated by Sindi's father to act as her
"bodyguard." [Cambridge University Professor
Christopher] Lowe confirmed that the writing style of her
dissertation was clearly that of Stevenson, and that they
were "very, very intimate friends." Furthermore,
Lowe believes that "money definitely changed
hands." Myer Berlow . . . also confirmed that she did
not have the basic scientific or technical knowledge to have
conducted the research or to have written her dissertation.
statements have an easily decipherable and verifiable
meaning, present the existence of specific facts that are
capable of being proven false, and are more than mere
rhetorical flights of fancy. See Levinsky's, 127
F.3d at 127-28. In addition, they are plainly defamatory:
they impugn Dr. Sindi's professional competence while
accusing her of fraud, notwithstanding the utter absence of
any probative evidence contradicting Dr. Sindi's
testimony regarding the elaborate research and writing
process she undertook to complete her dissertation and obtain
her degree. See Phelan, 819 N.E.2d at 553.
question reduces, then, to whether the statements were made
with actual malice, that is, either with knowledge of their
falsity or with a reckless disregard for the truth. See
Bose Corp., 466 U.S. at 513. This inquiry is both
subjective and time-sensitive, turning on "the
defendant's state of mind at the time of
publication." Kahl v. Bureau of Nat'l Affairs,
Inc., 856 F.3d 106, 118 (D.C. Cir. 2017). Since
"direct evidence of actual malice is rare," we have
permitted actual malice to be proved through inference and
circumstantial evidence alone. Levesque v. Doocy,
560 F.3d 82, 90 (1st Cir. 2009); see Connaughton,
491 U.S. at 668. For example, actual malice "may be
found where a publisher fabricates an account, makes
inherently improbable allegations, relies on a source where
there is an obvious reason to doubt its veracity, or
deliberately ignores evidence that calls into question his
published statements." Levesque, 560 F.3d at
90. Although motive alone cannot suffice to prove actual
malice, it is a highly relevant consideration. See
Connaughton, 491 U.S. at 665, 667-68; Vascular
Sols., 590 F.3d at 61.
respect to the "doctoral dissertation" statements,
the jury was entitled to find that Samia fabricated material
facts. Although Samia declared that the well-known
entrepreneur and scientist, Myer Berlow,
"confirmed" that Dr. Sindi lacked the prerequisite
scientific or technical prowess to have written her
dissertation, Berlow testified unequivocally that he had
never made such a statement. Such a gross fabrication is
powerful evidence of actual malice. See,
e.g., St. Amant, 390 U.S. at 732; Tosti
v. Ayik, 476 N.E.2d 928, 936 (Mass. 1985). To cinch the
matter, Samia admitted during cross-examination that she had
"no confirmed facts" to support her claim of fraud.
this all. The jury heard evidence that Samia deliberately
ignored facts that called her public statements into
question. For example, she admitted that she had no proof
that any academic institution had ever investigated possible
improprieties in connection with Dr. Sindi's doctorate.
She also admitted that she had contact information for Dr.
Stevenson (an academic who had publicly lauded Dr.
Sindi's dissertation), yet she never reached out to him.
On this record, the jury reasonably could have inferred that
Samia deliberately chose not to contact Dr. Stevenson out of
a concern that he would vouch for the legitimacy of Dr.
Sindi's degree and thereby undercut Samia's
criticisms. Refusing to take easily available steps that
could confirm or refute a claim may constitute probative
evidence of a reckless disregard for the truth. See
Connaughton, 491 U.S. at 682-84; Desnick v. Am.
Broad. Cos., 233 F.3d 514, 517 (7th Cir. 2000).
a further pall over Samia's statements is the fact that
she had an obvious motive to besmirch Dr. Sindi's
reputation: she believed that Dr. Sindi had engaged in an
extramarital affair with her husband. In an e-mail dated
December 17, 2011, Samia admonished Dr. Sindi that "you
will rue the day you took advantage of my hospitality, came
into my home, seduced [and] then tried to steal my
husband." In another e-mail, Samia informed Dr. Sindi
that she and Ann had prayed that God would "expose
[Dr. Sindi] and deliver justice." Samia's vengeful
motive, while insufficient on its own to establish actual
malice, furnishes cogent evidence supporting such a finding.
See Connaughton, 491 U.S. at 668.
sure, Samia testified that several people had told her that
Dr. Sindi obtained her Ph.D. through various sorts of
chicanery and sleight of hand. But Samia did not produce any
of those third parties as witnesses, and the jury was not
required to credit Samia's second-hand and uncorroborated
account. See id. at 688 (noting that a jury's
credibility assessments are reviewed for clear error, even in
First Amendment cases).
next group of statements involves Samia's accusations
that Dr. Sindi (who was born on November 6, 1967) lied about
her age in order to secure awards meant for younger
scientists. Representative of these accusations is
Samia's blog post on April 21, 2012, in which she wrote
that Dr. Sindi "misrepresent[ed] her age" in order
to win the 2007 Arab-American Science and Technology Young
Professional Award, the 2009 PopTech Social Innovation
Fellowship, and the 2011 National Geographic Emerging Scholar
Award, thus "rob[bing] opportunities for recognition,
public relations support, funding . . . and career
advancement" from younger scientists. Similarly, in a
letter to State Department officials dated February 12, 2014,
Samia claimed that Dr. Sindi had misrepresented her age by
some eleven years in connection with each of these awards.
scant difficulty in concluding that these statements are
actionable. To begin, each statement about Dr. Sindi's
age has "an easily ascertainable and objectively
verifiable meaning." Levinsky's, 127 F.3d
at 129. Viewed in context, such statements had the undeniable
potential to prejudice Dr. Sindi's professional and
business endeavors. See Ravnikar, 782 N.E.2d at 511.
What is more, the statements were demonstrably false: Dr.
Sindi testified that she had never lied about her age to an
award-granting entity, and Samia conceded that she had no
competent evidence to the contrary.
Sindi also showed that these statements were made with actual
malice. Samia confessed that she had never spoken to anyone
with authority to award the prizes that she identified. In
fact, she had done nothing even remotely resembling due
diligence to verify her claim of mendacity. For aught that
appears, Samia simply plucked the accusation out of thin air.
On this record, the jury had ample room to find that
Samia's age-related statements were total fabrications
and, thus, actionable. See St. Amant, 390 U.S. at
last category of statements clusters around Samia's
comments about Dr. Sindi's inflation of her resumé
through apocryphal boasts that she was involved in founding
Diagnostics for All (DFA). Some background facts help to put
these comments in perspective.
created to disseminate affordable diagnostic tools developed
in the laboratory of a Harvard professor, Dr. George
Whitesides, for use in third-world countries. The effort was
widely acclaimed, and DFA won a $100, 000 prize in an MIT
entrepreneurship competition. Dr. Sindi was a visiting fellow
in Dr. Whitesides' laboratory at the time DFA took shape,
and she frequently touted her role in its creation. At times,
she described herself as a cofounder and/or coinventor.
laudatory column regarding Dr. Sindi was published on the
Washington Post website on January 18, 2013, Samia
posted a comment urging readers to "ask [Dr. Whitesides]
about [Dr. Sindi's] non-existent role in the founding of
DFA." Samia proceeded, at various times, to make further
statements of this nature alleging in substance that Dr.
Sindi had either invented or at least wildly exaggerated the
importance of her efforts vis-à-vis DFA.
outset, we note that Samia, in disseminating the original
statement, urged readers "to [s]peak to Professor
Whitesides of Harvard." Although this statement implies
that Samia had herself interviewed Dr. Whitesides prior to
commenting, she had never so much as exchanged a word with
him. That Samia misrepresented the information gleaned from
her sources strongly suggests actual malice. See St.
Amant, 390 U.S. at 732; Levesque, 560 F.3d at
Samia doggedly insists that these statements were true or, at
least, mere hyperbole. She leans heavily on the fact that Dr.
Whitesides downplayed Dr. Sindi's role in creating the
specific diagnostic tools used by DFA, testifying that he and
Dr. Carmichael Roberts were the technology's coinventors.
But this emphasis on a single snippet of testimony distorts
the picture: Dr. Whitesides made pellucid that, from
"the very beginning," Dr. Sindi was "part of
the team" involved in the development of the overall DFA
technology. He further testified that Dr. Sindi played an
integral role in constructing the business plan for DFA and
credited her with helping DFA win the MIT competition. In the
same vein, Berlow - an early leader of DFA - lauded Dr.
Sindi's important contributions in launching DFA. As
Samia's own notes revealed, Berlow told her as much
during a conversation in April of 2012. Thus, it is evident
that Samia was aware of facts flatly contradicting her
statement. Yet, she continued to shout from the rooftops
(figuratively speaking) that Dr. Sindi had nothing to do with
statements, which falsely claimed that Dr. Sindi's role
in the DFA endeavor was nonexistent when in fact it was
significant, held Dr. Sindi up to public scorn and
opprobrium. The statements also characterize Dr. Sindi's
truthful claims as lies. Especially in light of the history
of acrimony between the two women, the jury was entitled to
find that Samia's DFA-related statements about Dr. Sindi
were false, defamatory, and made with actual malice.
same three categories of statements, at a bare minimum, are
actionable against Ann. For the most part, Ann simply
regurgitated Samia's falsehoods regarding Dr. Sindi's
Ph.D., age, and relationship to DFA, authoring a host of
derogatory Facebook posts and e-mails to Dr. Sindi's
professional associates. As we have shown, see supra
Parts III(A)(1)-(3), all of these animadversions were false
and defamatory (as were many others memorialized on the chalk
but not analyzed in depth here).
leaves only the question of actual malice. To begin, Ann - as
Samia's mother - harbored ill will towards Dr. Sindi.
Moreover, she conceded at trial that she had done nothing in
the way of serious research to verify Samia's spectacular
allegations before broadcasting them wholesale.
Significantly, Ann was keenly aware that her daughter was not
a neutral source of information: she had full knowledge of
Samia's antipathy toward Dr. Sindi. When a speaker relies
on a single source notwithstanding the existence of obvious
reasons for skepticism about that source's accuracy, a
jury may infer actual malice. See St. Amant, 390
U.S. at 732; Celle v. Filipino Rep. Enters. Inc.,
209 F.3d 163, 190 (2d Cir. 2000). So it is here: though Dr.
Sindi's defamation claim against Ann is less robust, it
is hardy enough to survive independent review.
by new counsel on appeal, Samia and Ann have a fallback
position. They assert that the court erred in instructing the
jury that a defendant could be held liable as long as that
defendant had published at least one defamatory statement
with actual malice. In their view, the court should have
instructed the jury to specify which of the statements on the
chalk were maliciously defamatory and, thus, formed the basis
of its verdict. For support, they rely principally on our
decision in Levinsky's, in which (as here) the
jury returned a general verdict for the defamation plaintiff.
See 127 F.3d at 136. We vacated that judgment,
explaining that the plaintiff had charged the defendant with
making two statements, only one of which we found to be
actionable. Consequently, the verdict could not stand because
it did not specify the statement on which liability was
premised. See id. Extrapolating from this decision
and from a similar decision in Simon v. Navon, 71
F.3d 9, 19 (1st Cir. 1995), the appellants argue that we must
order a retrial if so much as a single statement displayed on
the chalk fails to satisfy the requirements for a defamation
however, there is a rub. Samia and Ann failed to request a
jury instruction along these lines in the district court. To
compound the problem thus created, they did not object to the
instruction about which they now complain prior to jury
deliberations. See Fed.R.Civ.P. 51(c)(1) (requiring
parties before a case is sent to the jury to "state
distinctly the matter objected to and the grounds for the
objection"). Nor did the appellants raise this issue in
either their motion for judgment as a matter of law or their
motion for a new trial.
actions have consequences, omissions too have consequences.
It is black-letter law that claims of instructional error not
seasonably advanced in the district court can be broached on
appeal only for plain error. See DeCaro v. Hasbro,
Inc., 580 F.3d 55, 60 (1st Cir. 2009); Ferrara &
DiMercurio v. St. Paul Mercury Ins. Co., 240 F.3d 1, 13
(1st Cir. 2001). To establish plain error, a party must show
"(1) that an error occurred (2) which was clear or
obvious and which not only (3) affected the defendant's
substantial rights, but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Duarte, 246 F.3d
56, 60 (1st Cir. 2001). The party claiming plain error must
carry the devoir of persuasion on all four facets of this
test. See United States v. Bramley, 847 F.3d 1, 5
(1st Cir. 2017). Not surprisingly, then, reversals for plain
error are "hen's-teeth rare" in civil cases.
Teixeira v. Town of Coventry, 882 F.3d 13, 18 (1st
Cir. 2018); see Amicas, Inc. v. GMG Health Sys.,
Ltd., 676 F.3d 227, 235 (1st Cir. 2012).
and Ann cannot clear this high hurdle. Even if we assume, for
argument's sake, that some of the roughly 132 statements
limned in the chalk are not actionable, the trial focused
primarily on the three categories of statements discussed
above (that is, false statements pertaining to Dr.
Sindi's Ph.D., age, and connection with DFA). Seen in
this light, the chances are virtually nil that the jury
premised its liability determination on protected speech.
See Van Liew v. Eliopoulos, 84 N.E.3d 898, 913
(Mass. App. Ct. 2017) (affirming verdict where three of
twenty-nine allegedly defamatory statements were
non-actionable but were not the focus of trial and did not
"add measurably" to plaintiff's injuries).
Plain error is plainly absent.
more need be said. Even if the appellants are correct in
suggesting that the jury instructions were infected by an
obvious strain of error (a matter on which we take no view),
there is Buckley's chance that the verdicts on the
defamation claims rested exclusively on any of the few
arguably non-defamatory statements. Consequently, the
appellants cannot satisfy the third prong of the plain error
test. See Bramley, 847 F.3d at 7 (explaining that
proponent of plain error must show, at a minimum, a
reasonable probability that but for the alleged error, the
outcome of the trial would have been different).
issue of damages remains. Samia and Ann characterize the
damages awarded by the jury on the defamation claims ($400,
000 against Samia and $100, 000 against Ann) as excessive and
entreat us to either grant a new trial on damages or to
reduce the awards. Their main argument is that the damages
are too high because Dr. Sindi offered insufficient evidence
of economic loss resulting from their libels.
court below was tasked with assaying the damages awarded by
the jury, and its decision to deny the appellants' motion
for a new trial on damages or for a remittitur is reviewed
for abuse of discretion. See Trainor, 699 F.3d at
29. We discern none here.
recover damages, Massachusetts does not require a plaintiff
to prove that economic harm resulted from defamatory
statements alleging "that the plaintiff lacks a
necessary characteristic of [her] profession."
Ravnikar, 782 N.E.2d at 511. In such circumstances,
the plaintiff may recover for wholly noneconomic losses,
including "impairment of reputation and standing in the
community, personal humiliation, and mental anguish and
suffering." Draghetti v. Chmielewski, 626
N.E.2d 862, 868 (Mass. 1994).
and Ann's statements regarding Dr. Sindi's Ph.D. and
previous accomplishments impugn Dr. Sindi's scientific
aptitude and her professional integrity, which are necessary
characteristics of her vocation. Here, moreover, Dr. Sindi
introduced evidence of reputational harm flowing from the
appellants' defamatory statements, including Berlow's
testimony and the testimony of Joi Ito (the director of the
MIT Media Lab). She also introduced evidence concerning the
humiliation that she experienced as a result of the
appellants' campaign of vilification. Given the quantity
and quality of this evidence, we hold that the jury's
awards of damages for defamation were not so exorbitant as to
exceed any reasonable appraisal of damages sustained. Nor
were they so extravagant as to shock the conscience. It
follows inexorably that the district court's refusal to
order either a new trial on damages or a remittitur fit
comfortably within the realm of its broad
next leg of our journey takes us to Dr. Sindi's claim for
intentional infliction of emotional distress. The jury found
Samia liable for this claim and awarded damages against her
in the amount of $100, 000. At the same time, the jury
exonerated Ann on a counterpart claim, and Dr. Sindi has not
appealed this finding.
challenges the liability finding, the damages awarded, and
the district court's denial of her post-trial motion
seeking either to set aside the verdict or to reduce the
award. These challenges are unavailing.
Massachusetts law, a plaintiff claiming intentional
infliction of emotional distress must show that the defendant
"intended to inflict emotional distress or that [she]
knew or should have known that emotional distress was the
likely result of [her] conduct"; that the
defendant's "conduct was extreme and
outrageous," such that it transgressed "all
possible bounds of decency and was utterly intolerable in a
civilized community"; that the conduct caused the
plaintiff to suffer emotional distress; and that this
distress "was severe and of a nature that no reasonable
[person] could be expected to endure it." Agis v.
Howard Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976)
(internal quotation marks omitted). Samia contends that her
conduct was not sufficiently extreme or outrageous to come
within this framework.
common ground that liability for intentional infliction of
emotional distress cannot be predicated upon the ordinary
vicissitudes that mar human relationships: "mere
insults, indignities, threats, annoyances, petty oppressions,
or other trivialities" are not enough. Roman v. Trs.
of Tufts Coll., 964 N.E.2d 331, 341 (Mass. 2012)
(quoting Foley v. Polaroid Corp., 508 N.E.2d 72, 82
(Mass. 1987)). But neither a factfinder nor an appellate
court is obliged to balkanize the defendant's course of
conduct, isolating its component parts and, in the bargain,
minimizing their net effect. See Boyle v. Wenk, 392
N.E.2d 1053, 1055 (Mass. 1979). "Repeated harassment . .
. may compound the outrageousness of incidents which, taken
individually, might not be sufficiently extreme to warrant
liability for infliction of emotional distress."
Id. at 1056. Nor can a defendant demand the benefit
of every conceivable doubt. Rather, a jury is "entitled
to put as harsh a face on the actions of the [defendant] as
the basic facts would reasonably allow." Richey v.
Am. Auto. Ass'n, Inc., 406 N.E.2d 675, 678 (Mass.
case at hand, the evidence, taken in the light most favorable
to Dr. Sindi, shows beyond hope of contradiction that Samia
transmitted a series of vicious and extraordinarily
disturbing e-mails and text messages to Dr. Sindi. By way of
illustration, these missives included a December 17, 2011,
e-mail expressing thanks that Dr. Sindi's deceased father
was not "alive to witness the truth about his sinful,
selfish, coniving [sic] Munafika [an Arabic word for
hypocrite] of a daughter" as well as a series of text
messages referring to Dr. Sindi as "Hoota [an Arabic
word for little whale] the Sinful Liar," predicting that
Dr. Sindi would "get cancer" because of "the
number of people praying against [her]," declaring that
Dr. Sindi would be "exposed" as a "hypocrite
& fraud," and denigrating Dr. Sindi's
appearance. After Dr. Sindi blocked Samia from her telephone
in late 2011, Samia began to travel from her Seattle home to
conferences around the globe where Dr. Sindi was scheduled to
speak, handing out leaflets containing a demeaning image of
Dr. Sindi and urging conference-goers to visit a blog
dedicated to besmirching Dr. Sindi's reputation. Samia
even called upon Dr. Sindi's disabled mother in Saudi
Arabia for the purpose of confronting her about her
these and other incidents, and the more than four-year long
war of vituperation waged by Samia against Dr. Sindi, we
think that the jury supportably could have concluded that
Samia's course of conduct amounted to far more than mere
insults, indignities, and petty oppression. So, too, the jury
could supportably have concluded that Samia, over a long
period of time, displayed a strain of deliberate malevolence
that easily qualified as extreme and outrageous conduct.
See Conway v. Smerling, 635 N.E.2d 268, 273 (Mass.
App. Ct. 1994).
next contends that Dr. Sindi failed to prove that her
emotional distress was severe. In evaluating this contention,
we recognize that Massachusetts law sets a high bar for proof
of severity. See Kennedy v. Town of Billerica, 617
F.3d 520, 530 (1st Cir. 2010) (noting that "mere
'emotional responses including anger, sadness, anxiety,
and distress' . . . are 'often not legally
compensable'" (quoting Quinn v. Walsh, 732
N.E.2d 330, 338 (Mass. App. Ct. 2000))). But the length of
time that a plaintiff is forced to endure emotional distress
is a highly relevant datum in determining whether that
distress is sufficiently severe to be compensable. See
Homesavers Council of Greenfield Gardens, Inc. v.
Sanchez, 874 N.E.2d 497, 504 (Mass. App. Ct. 2007);
Brown v. Nutter, McClennen & Fish, 696 N.E.2d
953, 957-58 (Mass. App. Ct. 1998). One more wrinkle is worth
noting: emotional distress may be deemed severe even if it
does not produce any physical manifestations. See Cady v.
Marcella, 729 N.E.2d 1125, 1131 (Mass. App. Ct. 2000)
(citing Nancy P. v. D'Amato, 517 N.E.2d 824, 827
the relentless nature of Samia's pernicious attacks and
the duration of her onslaught weigh heavily in favor of a
finding of severity. Dr. Sindi testified that - beginning in
late 2011 and continuing up to the time of trial - she
suffered great anguish as a result of Samia's harassment.
That anguish manifested itself in divers ways including lost
sleep, blinding headaches, heart palpitations, and fears for
her safety. This constellation of symptoms limited her
ability to function. On this record, the jury reasonably could
have concluded that Dr. Sindi's emotional distress was
sufficiently severe to justify recovery.
counters that the verdict must nonetheless be overturned
because Dr. Sindi failed to introduce any medical testimony
in support of her claim. She is wrong: Massachusetts law
allows recovery in emotional distress cases based exclusively
on lay testimony. See, e.g., Poy v.
Boutselis, 352 F.3d 479, 485-86 (1st Cir. 2003)
(applying Massachusetts law).
on, Samia asserts that the evidence was insufficient to
establish causation. In this regard, she emphasizes evidence
indicating that Dr. Sindi had been treated for stress-related
conditions prior to 2011. This assertion is fruitless:
"[c]ausation is a factbound issue and, as such, is
normally left to the trier." Limone v. United
States, 579 F.3d 79, 99 (1st Cir. 2009) (applying
Massachusetts law). This case falls within the general rule,
not within the long-odds exception to it. For one thing,
there was proof of causation-in-fact: given the duration and
persistence of Samia's attacks, the jury had ample reason
to infer that her conduct caused Dr. Sindi's emotional
distress. See Cady, 729 N.E.2d at 1132. For another
thing, the record supports the jury's determination that
Dr. Sindi's emotional distress was the foreseeable result
of Samia's years-long pattern of vilification, thus
establishing proximate cause. See Limone, 579 F.3d
game, set, and match. Beyond her allegations that Dr.
Sindi's harm was not severe and that no causal connection
was sufficiently proven, Samia makes no developed argument
that the damages awarded on this claim are excessive.
Consequently, we treat any such argument as waived. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990). We therefore conclude that Samia, in mounting her
challenge to the jury verdict on the intentional infliction
of emotional distress claim, is swinging an unstrung racquet.
jury found both Samia and Ann liable for tortious
interference with contract and awarded Dr. Sindi jackpot
verdicts: $2, 000, 000 against Samia and $400, 000 against
Ann. On post-trial motions, the district court reduced these
awards to $576, 000 against Samia and $144, 000 against Ann.
Dr. Sindi does not take issue with the reduction of the
awards. Samia and Ann, though, challenge the sufficiency of
the evidence supporting the liability findings and also claim
that even the reduced damages amounts are excessive.
prevail on a claim for tortious interference with contract, a
plaintiff must prove that she "had a contract with a
third party," which the defendant "knowingly
induced the third party to break." Abramian v.
President & Fellows of Harvard Coll., 731 N.E.2d
1075, 1088 (Mass. 2000). The plaintiff also must prove that
this interference "was improper in motive or means"
and caused her harm. Id. For this purpose,
"improper means" may include the commission of
certain common-law torts, such as defamation. Cavicchi v.
Koski, 855 N.E.2d 1137, 1142 (Mass. App. Ct. 2006).
Relatedly, proof of malice directed toward the plaintiff may
serve to establish an improper motive. See id.
and Ann do not seriously contest the majority of these
elements. They acknowledge that Dr. Sindi had an employment
contract with the i2 Institute, which entitled her to a $10,
000 monthly salary. Given what we already have said, the jury
had more than enough evidence to find that the
appellants' interference with this contract was
deliberate - for example, they e-mailed a stream of
defamatory statements about Dr. Sindi to board members and
investors of the i2 Institute - and that the appellants,
sparked by improper motives, employed improper means.
of these damning facts, Samia and Ann train their fire on the
issue of causation. They point out that Dr. Sindi had
difficulty in recruiting investors for the i2 Institute even
before they began their avalanche of vituperation in 2012,
and they suggest that the Institute would have struggled
quite apart from their meddling. They also suggest that Dr.
Sindi stripped the i2 Institute of financial resources by
mismanaging its affairs and insisting that it pay some of her
suggestions lack force. In the present posture of the case,
we are required to weigh the facts in favor of the verdicts,
and we have no authority to set those verdicts aside merely
because some evidence in the record cuts the other way.
See Sanchez, 37 F.3d at 716. Moreover, our deference
to jury verdicts, great in any event, is magnified where, as
here, the attack on the verdicts relates to causation (which
is a matter "peculiarly within the competence of the
factfinder"). Peckham v. Cont'l Cas. Ins.
Co., 895 F.2d 830, 837 (1st Cir. 1990) (applying
Massachusetts law and quoting Swift v. United
States, 866 F.2d 507, 510 (1st Cir. 1989)). In this
instance, there was more than enough evidence to ground a
reasonable inference that the appellants' defamatory
statements drove supporters away from the i2 Institute and
thus caused its financial woes.
and Ann also argue that the damages awards, even as reduced
by the district court, are excessive. Their principal point
is that the awards should be further reduced to reflect the
i2 Institute's payment of certain of Dr. Sindi's
argument will not wash. While the appellants introduced
evidence that, in 2014, the i2 Institute paid 73, 125 Saudi
Riyals (approximately $20, 000 at the time) to cover certain
of Dr. Sindi's legal expenses, the appellants cited this
evidence to the district court in support of their requests
for remittiturs. We have no reason to believe that the
district court did not take this payment into account when it
granted those remittiturs. When (as in this case) the
district court has granted a remittitur, the scope of
judicial review - narrow in any event - becomes even
narrower. See Wagenmann v. Adams, 829 F.2d 196, 215
(1st Cir. 1987). After all, a challenge for excessiveness to
an already trimmed jury award requires an appellate court
"not merely to grade the essay, but to grade the
teacher's grading of the essay." Id. The
evidence showed that Dr. Sindi was not paid her $10, 000
monthly salary for at least three years and was never
reimbursed for certain i2 Institute expenses that she paid
out of her own pocket. And as the district court observed,
the evidence supported a reasonable inference that Dr.
Sindi's "contract with i2 would have continued for a
number of years," thus entitling her to future lost
earnings. Sindi, 2016 WL 5867403, at *6.
setting the remittitur amounts, the district court found that
the evidence warranted recovery for Dr. Sindi's past lost
earnings from her employment with the i2 Institute (totaling
$360, 000), payment of certain out-of-pocket expenses
associated with that employment (totaling roughly $70, 000),
and her future lost earnings from the Institute (totaling
roughly $290, 000). The court then apportioned the damages to
reflect the jury's finding that Samia was responsible for
approximately 80% of Dr. Sindi's losses. Giving this
reasoning due weight, the awards as remitted are nowhere near
"so extravagant as to shock the appellate
conscience." Sanchez, 37 F.3d at 724.
and Ann next challenge the adverse jury verdicts on Dr.
Sindi's claim for tortious interference with advantageous
relations. To prevail on such a claim, a plaintiff must show
that she had "a present or prospective contract or
employment relationship," that "the defendant
knowingly induced a breaking of the relationship," and
that such interference "was improper in motive or
means" and caused her harm. Blackstone v.
Cashman, 860 N.E.2d 7, 12-13 (Mass. 2007). Although the
plaintiff need not prove the loss or diminution of a fully
formed contract, she must, at a bare minimum, prove harm to a
"probable future business relationship from which there
is a reasonable expectancy of financial benefit . . . ."
Owen v. Williams, 77 N.E.2d 318, 322 (Mass. 1948);
see Singh v. Blue Cross/Blue Shield of Mass., Inc.,
308 F.3d 25, 48 (1st Cir. 2002) (applying Massachusetts law).
speculation regarding potential future business opportunities
is insufficient to prove this element. See Singh,
308 F.3d at 48. Rather, there must be competent evidence of a
specific business relationship, the consummation of which was
reasonably likely. See id.; see also Am. Private
Line Servs., Inc. v. E. Microwave, Inc., 980 F.2d 33, 36
(1st Cir. 1992) (applying Massachusetts law and holding that
plaintiff may prevail by showing that she was engaged in
promising contract negotiations that were knowingly disrupted
by defendant's tortious interference).
and Ann maintain that the evidence on this claim was so
sparse that the district court was obliged to grant their
motions for judgment as a matter of law. In their view, Dr.
Sindi failed to offer probative evidence of a reasonably
likely relationship between herself and any identified third
party with which they knowingly interfered. We test this
premise against the record.
sure, Dr. Sindi testified that certain potential business
partners ceased communicating with her after Samia and Ann
began disseminating their libelous statements. Dr. Sindi
failed, however, to introduce any competent evidence
concerning the content of her negotiations with these third
parties, the details of any potential arrangement, or the
likelihood that (absent tortious interference) such a
relationship would come to pass. When all is said and done,
her claim of tortious interference with advantageous
relations is woven entirely out of gossamer strands of
speculation and surmise. It follows that Dr. Sindi's
professed expectancy of financial benefits from these wholly
conjectural relationships was little more than wishful
thinking. Certainly, any such expectancy was not objectively
reasonable. See Singh, 308 F.3d at 48.
is a further flaw in Dr. Sindi's argument. A plaintiff
who sues for tortious interference with an advantageous
relationship must prove not only that the defendant
interfered with that relationship but also that the defendant
did so knowing of the existence of the relationship. See
Bennett v. Saint-Gobain Corp., 507 F.3d 23, 33 (1st Cir.
2007) (applying Massachusetts law). Dr. Sindi has not pointed
to a shred of evidence showing that either Samia or Ann was
aware of her discussions with any of the third parties
alluded to in her testimony. Because any such prospective
business relationships were unknown to the appellants, they
cannot form the basis for a finding of tortious-interference
liability. See id.; Comey v. Hill, 438
N.E.2d 811, 816 (Mass. 1982).
Sindi has a fallback position. She posits that the verdicts
on this count can be sustained on the basis that Samia and
Ann knowingly interfered with her relationship with the i2
Institute and, thus, with her expectancy of future financial
benefits from that relationship. The district court seized
upon this rationale: in upholding the jury verdicts on this
count ($400, 000 against Samia and $100, 000 against Ann),
the court theorized that Dr. Sindi had proven an expectancy
of future lost earnings from the i2 Institute. See
Sindi, 2016 WL 5867403, at *6 & n.4.
circumstances of this case, the district court's
rationale is untenable. It is black-letter law that a
plaintiff's recovery under one tort theory precludes her
from "duplicative recovery for the same damages under
some other tort theory." Borden v. Paul Revere Life
Ins. Co., 935 F.2d 370, 383 (1st Cir. 1991); accord
Calimlin v. Foreign Car Ctr., Inc., 467 N.E.2d 443, 448
(Mass. 1984). This salutary principle ensures that a
plaintiff injured as a result of the defendant's tortious
conduct is made whole, but is not made more than whole.
See Dopp v. HTP Corp., 947 F.2d 506, 517 (1st Cir.
1991); Szalla v. Locke, 657 N.E.2d 1267, 1271 (Mass.
principle is pertinent here. Dr. Sindi prevailed against
Samia and Ann on her claim for tortious interference with
contract. See supra Part V. The damage
awards on that count, post-remittitur, encompassed all of the
damages flowing from the appellants' interference with
Dr. Sindi's relationship with the i2 Institute (past,
present, and prospective). Indeed, in ordering remittiturs
for tortious interference with contract and capping the
recoverable amounts at a total of $720, 000, the district
court made pellucid that these awards included Dr.
Sindi's lost earnings from the i2 Institute both for the
period between 2013 and 2015 and for future years (in which
her contract ostensibly would have continued but for the
appellants' interference). See Sindi, 2016 WL
5867403, at *6.
ends this aspect of the matter. Massachusetts law, as we
understand it, will not countenance allowing a plaintiff to
salvage a tort claim by double-counting. Damages already
recovered on one theory cannot be recovered again on another
theory. See Fox v. F & J Gattozzi Corp., 672
N.E.2d 547, 552 (Mass. App. Ct. 1996); see also United
States v. Poole, 545 F.3d 916, 920 (10th Cir. 2008)
summarize succinctly. Dr. Sindi's proof on her claim for
tortious interference with advantageous relations is
deficient in major respects. Most notably, she has failed to
prove that she had a reasonable expectancy of financial
benefit from a potential third-party relationship (other than
her relationship with the i2 Institute), with which Samia
and/or Ann knowingly interfered. We therefore reverse the
judgments on this count.
brings us to the pièce de résistance: the
district court's post-trial grant of a permanent
injunction. We set the stage.
the jury found Samia and Ann liable for defamation, see
supra Part III, it returned only general verdicts on
those claims and did not identify any specific statements as
defamatory. During the post-trial proceedings, Dr. Sindi
moved for the entry of a permanent injunction barring Samia
and Ann from republishing, in any medium and in any context,
a compendium of statements.
on the evidence adduced at trial, the district court made
some further findings of fact. First, the court found that
six specific statements were false, defamatory, and made with
actual malice and that, absent an injunction, the appellants
were likely to repeat them. The court further stated (albeit
without making any meaningful findings) that Dr. Sindi had
shown that she faced the prospect of irreparable harm.
Finally, the court concluded that the balance of harms
favored the issuance of an injunction and that the public
interest would not be threatened by a grant of injunctive
relief. Based on those determinations, the court entered an
order broadly enjoining Samia and Ann from republishing the
six statements in any medium or for any purpose.
Specifically, the injunction (reprinted as part of Appendix
B) enjoined the appellants from "repeating - orally, in
writing, through direct electronic communications, or by
directing others to websites or blogs reprinting" - any
of six particular statements, namely:
1. That Hayat Sindi is an academic and scientific fraud;
2. That Sindi received awards meant for young scholars or
other youth by lying about her age;
3. That Sindi was fraudulently awarded her PhD;
4. That Sindi did not conduct the research and writing of her
5. That Sindi's dissertation was "ghost
researched" and "ghost written";
6. That Sindi's role in the founding of Diagnostics For
All was non-existent, and that Sindi did not head the team of
six people that won the MIT Entrepreneurship Competition.
appeal, Samia and Ann question the district court's
authority to issue such an injunction, the breadth of the
injunction, the court's supplemental factfinding, and a
miscellany of other matters incidental to the grant of
injunctive relief. Dr. Sindi submits that the appellants have
waived or forfeited certain arguments pertaining to the
injunction's validity and enforceability. In addition,
she defends the injunction in all its particulars. To sort
out these competing claims, we delineate the scope of our
appellate review and thereafter turn to the appellants'
mounting their attack on the injunction, the appellants rely
on conclusory argumentation and, in many respects, fail to
develop relevant points. When a party's contentions
"lack both coherence and development," we
ordinarily deem them procedurally defaulted. Marek v.
Rhode Island, 702 F.3d 650, 655 (1st Cir. 2012) (citing
Zannino, 895 F.2d at 17). This principle, sometimes
inexactly called the "raise-or-waive rule," is
"founded upon important considerations of fairness,
judicial economy, and practical wisdom." Nat'l
Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627
(1st Cir. 1995). It is not to be taken lightly. In the end,
though, "[r]ules of practice and procedure are devised
to promote the ends of justice, not to defeat them."
Hormel v. Helvering, 312 U.S. 552, 557 (1941). Since
the application of the so-called raise-or-waive principle is
discretionary and non-jurisdictional, an appellate court may,
under exceptional circumstances, elect to reach unpreserved
issues in order to forestall a miscarriage of justice.
See Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st
Cir. 2002) (en banc) (per curiam); United States v. La
Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990).
recognizing that this exception to the raise-or-waive
principle must be applied sparingly and with great
circumspection, we have not hesitated to invoke it where the
equities of a particular case counsel strongly in favor of
such a step. See Nat'l Ass'n of Soc.
Workers, 69 F.3d at 627. In assaying those equities, we
have given substantial weight to considerations such as
whether the inadequately preserved arguments are purely
legal, are amenable to resolution without additional
factfinding, are susceptible to resolution without causing
undue prejudice, are highly convincing, are capable of
repetition, and implicate matters of significant public
concern. See id. at 627-28. So, too, we have taken
into account whether the failure to advance an argument was
deliberate or inadvertent. See id.
case at hand, the propriety of the challenged injunction
turns on purely legal questions. Those questions can be
answered without further factfinding and without causing
unfair prejudice to any party. Moreover, the critical issues
are virtually certain to arise in future defamation cases.
See, e.g., McCarthy v. Fuller, 810
F.3d 456 (7th Cir. 2015); Kinney v. Barnes, 443
S.W.3d 87 (Tex. 2014); Balboa Island Vill. Inn, Inc. v.
Lemen, 156 P.3d 339 (Cal. 2007). To cinch matters, the
arguments against allowing the injunction to stand are quite
persuasive; those arguments touch upon matters of significant
public concern; and the appellants' failure to develop
them was apparently careless rather than deliberate. These
factors counsel strongly against a mechanical application of
the raise-or-waive principle. See Gencarelli v. UPS
Capital Bus. Credit, 501 F.3d 1, 8 (1st Cir. 2007).
dissenting brother questions this conclusion, noting that the
Supreme Court has never directly addressed the
constitutionality of a post-trial injunction involving a
previously defamed public figure. See post at 79-80.
He seems to suggest that the absence of a Supreme Court
opinion directly on point somehow militates against
considering the appellants' defaulted arguments. This
suggestion overlooks that the answer to a legal question may
be clear even without a precedent on all fours. Cf.
United States v. Morales, 801 F.3d 1, 10 (1st Cir. 2015)
(stating that a court may plainly err, even in the
"absence of a decision directly on point"). And in
any event, the constitutional question that we confront is
virtually certain to be litigated in future cases - a factor
that weighs in favor of reaching the merits. See La
Guardia, 902 F.2d at 1013.
dissent also suggests that the appellants' failure to
develop certain arguments against the legality of the
permanent injunction was deliberate rather than inadvertent.
See post at 76-77. We do not agree. Although the
appellants were admittedly careless in framing their
objections, they never expressly abandoned arguments such as
the patent failure of the injunction to satisfy strict
scrutiny; they simply overlooked these objections while
challenging the injunction on other grounds. This was not
good lawyering - but a lawyer's failure to articulate an
argument does not amount to a deliberate abandonment of that
argument. See United States v. Ortiz, 741 F.3d 288,
293 (1st Cir. 2014) (finding forfeiture, not waiver, when
appellant failed "to articulate his best argument"
and left the trial court "in the dark as to that
there any real risk of unfair surprise. Both in her initial
brief and in her oral presentation to this court, Dr. Sindi
anticipated virtually all of the arguments against the
injunction and attempted to explain why those arguments
lacked merit. In addition, she has had the opportunity in her
supplemental briefing to address our concerns about the
injunction. Since Dr. Sindi has fully availed herself of the
chance to expound upon whatever legal arguments she may wish
to pursue, no cognizable prejudice would flow from excusing
the appellants' procedural default. See Singleton v.
Wulff, 428 U.S. 106, 120 (1976).
fact that the appellants are challenging an injunction is
itself a factor that cuts in favor of relaxing strict rules
of preclusion and considering inadequately preserved
arguments. After all, it is well-settled that, upon due
notice, a court may dissolve an injunction sua sponte (even
in the absence of objections from the party enjoined) when
the injunction is no longer equitable or consistent with the
public interest. See Moore v. Tangipahoa Par. Sch.
Bd., 864 F.3d 401, 407 (5th Cir. 2017); Armstrong v.
Brown, 768 F.3d 975, 980 (9th Cir. 2014). Because an
injunction is "an extraordinary remedy never awarded as
of right," Winter v. Nat. Res. Def. Council,
555 U.S. 7, 24 (2008); see Weinberger v.
Romero-Borcelo, 456 U.S. 329, 311-12 (1982), no one can
expect that the terms of an injunction will persist in
perpetuity. Indeed, any such expectation would be
inconsistent with the verity that courts have the
"continuing duty and responsibility to assess" an
injunction's "efficacy and consequences."
Brown v. Plata, 563 U.S. 493, 542 (2011). Consistent
with this imperative, courts have excused procedural defaults
and grappled with arguments against injunctions that
implicate issues of "constitutional magnitude,"
even when those arguments were unpreserved. Real Estate
Bar Ass'n for Mass., Inc. v. Nat'l Real Estate Info
Servs., 608 F.3d 110, 125-26 (1st Cir. 2010); see
Schlesinger v. Councilman, 420 U.S. 738, 740, 743 (1975)
(considering unpreserved arguments against injunction that
touched upon "proper relationship between the military
justice system" and Article III courts); Younger v.
Harris, 401 U.S. 37, 40-41, 46 (1971) (vacating
injunction that violated "fundamental policy against
federal interference with state criminal prosecutions,"
notwithstanding petitioners' failure to raise argument in
challenged injunction falls squarely into this category of
cases. The omitted arguments implicate a court's limited
authority, consistent with its equitable jurisdiction and the
First Amendment, to enjoin speech. This is an area of
considerable constitutional concern, and one that has major
institutional implications for the federal judiciary.
Moreover, our ongoing duty to review the efficacy and
consequences of an injunction takes on special importance in
the First Amendment context: because such an injunction
carries significant "risks of censorship and
discriminatory application," the Supreme Court has
directed judges to scrutinize injunctions restricting speech
carefully and ensure that they are "no broader than
necessary to achieve [their] desired goals." Madsen
v. Women's Health Ctr., 512 U.S. 753, 764-65 (1994).
bottom line is that this case calls for an exception to the
usual rule: it arrives on our doorstep in a posture that
allows us, in the exercise of our discretion, to consider
inadequately preserved arguments against the challenged
injunction. Given the special importance of the issues
surrounding the injunction and the other factors that we have
mentioned, we conclude that a mechanical application of the
raise-or-waive principle would work a miscarriage of justice.
Under these exceptional circumstances, we look past the
infirmities in the appellants' briefing and proceed to
consider all the available arguments affecting the validity
and enforceability of the injunction, regardless of whether
some of those arguments may have been forfeited.
general matter, the First Amendment forbids the government,
including the Judicial Branch, "from dictating what we
see or read or speak or hear." Ashcroft v. Free
Speech Coal., 535 U.S. 234, 245 (2002). The question
that remains in this case is whether the district court
offended the First Amendment by enjoining the appellants from
republishing, orally or in writing, any of six statements
that they previously had employed to defame Dr. Sindi. Some
courts have adopted the view that an injunction against
future speech following a defamation trial may be consistent
with the First Amendment. See, e.g.,
Lothschuetz v. Carpenter, 898 F.2d 1200, 1208-09
(6th Cir. 1990) (Wellford, J., for the court in part);
Lemen, 156 P.3d at 349. Others, though, have
expressed deep skepticism, suggesting that such a remedy is
per se unconstitutional. See, e.g.,
Fuller, 810 F.3d at 464-66 (Sykes, J., concurring);
Kinney, 443 S.W.3d at 89, 94; see also
Erwin Chemerinsky, Injunctions in Defamation Cases,
57 Syracuse L. Rev. 157, 158 (2007). Although the Supreme
Court once granted certiorari to resolve this conundrum, it
disposed of the case on less controversial grounds, leaving
the constitutional question open. See Tory v.
Cochran, 544 U.S. 734, 737-38 (2005).
not decide today the broader question of whether the First
Amendment will ever tolerate an injunction as a remedy for
defamation. In all events, "courts should not rush to
decide unsettled issues when the exigencies of a particular
case do not require such definitive measures,"
Privitera v. Curran (In re Curran), 855
F.3d 19, 22 (1st Cir. 2017) - and this is such a case.
Consistent with our prudential practice of forgoing broad
constitutional holdings unless such holdings are unavoidable,
see Hudson Sav. Bank v. Austin 479 F.3d 102, 106
(1st Cir. 2007); El Dia, Inc. v. Hernandez Colon,
963 F.2d 488, 494 (1st Cir. 1992), we decide the issues
concerning the validity and enforceability of the challenged
injunction on narrower grounds. The injunction cannot survive
the strict scrutiny required to legitimize a prior restraint,
principally because of its failure to account for contextual
variation. Therefore, the injunction must be
start this phase of our analysis by rehearsing abecedarian
principles of equity. A court may not issue a permanent
injunction unless, among other things, "remedies
available at law, such as monetary damages, are inadequate to
compensate for" an "irreparable injury."
eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388,
391 (2006). Moreover, such an injunction must be
"no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs."
Madsen, 512 U.S. at 765 (quoting Califano v.
Yamasaki, 442 U.S. 682, 702 (1979)). Although we review
the issuance of a permanent injunction for abuse of
discretion, see eBay, 547 U.S. at 391, we perform
this task mindful of our unflagging "obligation to
'make an independent examination of the whole record'
in order to make sure that 'the judgment does not
constitute a forbidden intrusion on the field of free
expression, '" Bose Corp., 466 U.S. at 499
(quoting N.Y. Times Co., 376 U.S. at 284-86);
accord Metro. Opera Ass'n, v. Local 100,
Hotel Emps. & Rest. Emps. Int'l Union, 239 F.3d
172, 176 (2d Cir. 2001).
injunction issued in this case, which prohibits the
appellants from republishing six particular statements, is a
paradigmatic example of a prior restraint: it is a
"judicial order forbidding certain
communications . . . issued in advance of the time that such
communications are to occur." Alexander v. United
States, 509 U.S. 544, 550 (1993) (emphasis in original)
(citation omitted). As such, it is subject to even more
exacting requirements under settled First Amendment
doctrine. See Tory, 544 U.S. at 738
(treating post-trial injunction against republication of
previously defamatory statements as prior restraint).
is a strong presumption that prior restraints on speech are
unconstitutional. See N.Y. Times Co. v. United
States, 403 U.S. 713, 714 (1971) (per curiam). So
drastic a remedial device may only be imposed when it
furthers "the essential needs of the public order."
Carroll v. President & Comm'rs of Princess
Anne, 393 U.S. 175, 183 (1968). A prior restraint cannot
be imposed when those needs can be achieved through less
restrictive means. See id. at 183-84; see also
Tory, 544 U.S. at 738. And even when a prior restraint
may theoretically be permissible, the decree that embodies it
must be precisely tailored both to meet the exigencies of the
particular case and to avoid censoring protected speech.
See Carroll, 393 U.S. at 183-84. In the last
analysis, a party who seeks a remedy in the form of a prior
restraint must establish that the "evil that would
result from" the offending publication is "both
great and certain and cannot be mitigated by less intrusive
measures." CBS, Inc. v. Davis, 510 U.S. 1315,
1317 (1994) (Blackmun, J., in chambers) (citing Neb.
Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976));
see In re Goode, 821 F.3d 553, 559 (5th Cir. 2016);
Cty. Sec. Agency v. Ohio Dep't of Commerce, 296
F.3d 477, 485 (6th Cir. 2002); Levine v. U.S. Dist.
Ct., 764 F.2d 590, 595 (9th Cir. 1985). Consequently, a
prior restraint on speech must survive the most exacting
scrutiny demanded by our First Amendment jurisprudence.
See Stuart, 427 U.S. at 559.
intensive scrutiny is warranted because an animating purpose
of the First Amendment was to create a bulwark against
previous restraints upon speech. See Near v. Minnesota ex
rel. Olson, 283 U.S. 697, 713 (1931). Since "the
line between legitimate and illegitimate speech is often so
finely drawn," we "prefer to punish the few who
abuse rights of speech after they break the law than
to throttle them and all others beforehand." Se.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975)
(emphasis in original). Thus, prior restraints are regarded
as "the most serious and the least tolerable
infringement on First Amendment rights."
Stuart, 427 U.S. at 559.
operation of the collateral bar rule compounds the grave
perils posed by prior restraints. This rule requires that an
injunction be followed upon pain of contempt until modified
or vacated, and the unconstitutionality of the injunction
typically does not justify a refusal to obey it. See
Metro. Opera Ass'n, 239 F.3d at 176 (citing
Walker v. Birmingham, 388 U.S. 307, 314-21 (1967)).
It follows that once an injunction ...