When Defamation Law Works and When It Doesn’t
June 19, 2025
Privacy Plus+
Privacy, Technology and Perspective
This week, let’s look at the First Amendment's prohibition on "prior restraint," which traditionally focuses on government censorship before speech occurs. But recent high-profile defamation cases reveal a more nuanced challenge: distinguishing between legitimate protection of reputation and the illegitimate silencing of important public discourse by deep-pocketed, private interests. Some recent cases show defamation law working as intended, while others suggest a troubling evolution toward informal censorship.
Three Cases, Different Concerns
Recent legal developments illustrate the spectrum of how defamation law intersects with public discourse—from appropriate accountability to potential overreach:
Coomer v. Lindell ($2.3 Million Award): A jury found that MyPillow founder Mike Lindell defamed a Dominion Voting Systems employee, Eric Coomer, by falsely calling him a "traitor" in connection with baseless 2020 election conspiracy theories, resulting in a well-deserved $2.3 million damage award against Lindell for his reckless and harmful lies. In our view, this case represents defamation law functioning as intended: holding speakers accountable for false statements that damage innocent individuals.
Energy Transfer Pipeline v. Greenpeace ($660 Million Award): After years of litigation over protests against the Dakota Access Pipeline that turned violent, a North Dakota jury awarded Energy Transfer an unprecedented $660 million in damages for defamation, conspiracy, and related claims. Greenpeace has indicated this award could force it out of business entirely — raising questions about whether the punishment fits the harm.
The Astroturf Litigation Strategy: Artificial grass manufacturers recently sued four scientific experts immediately before they were scheduled to speak at a seminar about PFAS "forever chemicals" in recycled tire materials used in synthetic turf. The speakers planned to present research suggesting these chemicals could harm athletes. The seminar was cancelled —achieving through litigation timing what “prior judicial restraint” prohibits.
You can read more about these by clicking on the following links:
https://apnews.com/article/mike-lindell-dominion-voting-defamation-2020-election-af473792a6e395d86ea6ca0f97742c3f (Coomer v. Lindell)
https://www.nytimes.com/2025/03/19/climate/greenpeace-energy-transfer-dakota-access-verdict.html (Energy Transfer v. Greenpeace)
Understanding “No Prior Restraint” Doctrine
The “No Prior Restraint” doctrine limits government’s ability to limit speech before it is published. (Afterwards, damages can be awarded if the speech is adjudged to have been defamatory, obscene, and so on.) The U.S. courts and most states follow this doctrine with respect to government actions and matters of high public importance, as shown in the Pentagon Papers case when the Washington Post was allowed to publish sensitive records about the Vietnam war. Some states do make exceptions for especially clear matters such as child pornography, or clear, bargained-for non-disparagement clauses in contracts, but others are wary of exceptions.
Most states, including Texas, favor the “no prior restraint” doctrine and won’t normally enjoin speech before it occurs, even where non-disparagement clauses are present (though statutory and judicial exceptions are rapidly emerging where defendants insist on non-disparagement clauses before settling harassment, assault, and other cases of atrocious behavior). The Texas Citizens Participation Act (“TCPA”) also encourages raw and robust speech, by requiring plaintiffs who are offended by a speaker’s first amendment-related speech to show the validity of their claims immediately, at the start of a suit and before discovery if the speaker so demands, and awarding the speaker her attorneys’ fees if the plaintiff fails to make that high showing.
The Emerging Chilling Effect
While in our view the Lindell case shows defamation law working properly—protecting a party from malicious lies—the other cases seem to raise concerns about chilling effects:
· For Advocacy Organizations: Groups like Greenpeace must now weigh not just litigation costs, but existential threats to their organizations when engaging in public advocacy on controversial issues – especially if they cannot keep their passionate members under disciplined control.
· For Public Commentators: Individuals making public statements on contentious topics must calculate whether their comments are worth potentially catastrophic financial liability.
· For Researchers and Experts: Scientists and other experts may self-censor rather than risk litigation for sharing research findings that could threaten commercial interests.
Our Thoughts
We support vigorous public debate on important issues and believe defamation law serves a vital purpose in protecting individuals from harmful lies. But we are troubled when these same protections are used to muzzle legitimate scientific research and policy advocacy.
The distinction matters: defamation law should protect people like Eric Coomer from malicious conspiracy theorists, and targets of violence should have civil redress; but defamation law shouldn't be used to bankrupt advocacy organizations or prevent scientists from sharing research that serves the public interest. When litigation costs and damage awards become existential threats to advocacy organizations, when litigation timing can effectively silence researchers before they speak, and when the financial stakes of public commentary become catastrophic, we allow to deep-pocketed, private interests a power over speech we would not allow even a publicly accountable government.
As we approach the nation's 250th anniversary, Judge Learned Hand's wartime words seem particularly apt: "The spirit of liberty is the spirit which is not too sure that it is right." The challenge for courts, legislators, and practitioners is maintaining defamation law's legitimate purpose—protecting reputation—while preventing its transformation into a tool that chills the good-faith discussions of disagreement which are essential to democratic society.
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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.