# Sindi v. El-Moslimany

> Court of Appeals for the First Circuit · July 11, 2018 · 896 F.3d 1

URL: https://www.frixlaw.com/law-library/cases/4293312

## Case

- **Full name:** Hayat SINDI, Plaintiff, Appellee, v. Samia EL-MOSLIMANY and Ann El-Moslimany, Defendants, Appellants.
- **Court:** Court of Appeals for the First Circuit
- **Decided:** July 11, 2018
- **Citations:** 896 F.3d 1
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Barron, Selya, Stahl
- **Cited by:** 96 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4293312

## How later opinions describe it (automated extraction)

- holding doctrine of consular nonreviewability is “precisely the 14 kind of limitation on judicial review . . . that forms an exception to the APA’s cause of 15 action and review provisions” (internal quotation, citation, and alteration omitted).
- holding that an injunction against republishing defamatory statements failed strict scrutiny because it was not narrowly tailored
- finding that an agency’s refusal to grant a request for 19 records in its control is a “withholding,” even if the agency knows the records 20 are otherwise available to or in the possession of the requester.
- applying Massachusetts law and holding that plaintiff failed to prove she had a reasonable expectation of an economic relationship when she failed to introduce evidence about “the content of her negotiations with [the] third parties, the details of any potential arrangement, o…
- observing that the district court’s case management order 18 permitting “limited discovery from an Internet Service Provider to establish a potential 19 infringer’s identity” was part of a “practical solution” to manage a large number of peer- 20 to-peer copyright infringement…

## Opinion text

United States Court of Appeals
For the First Circuit

No. 16-2347

HAYAT SINDI,

Plaintiff, Appellee,

v.

SAMIA EL-MOSLIMANY and ANN EL-MOSLIMANY,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Indira Talwani, U.S. District Judge]

Before

Barron, Selya and Stahl,
Circuit Judges.

John A. Kiernan, with whom Bonner Kiernan Trebach & Crociata,
LLP was on brief, for appellants.
Eugene Volokh, pro se, on brief for Eugene Volokh, amicus
curiae.
David H. Rich, with whom Suzanne Elovecky and Todd & Weld LLP
were on brief, for appellee.

July 11, 2018
SELYA, Circuit Judge. This 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.

After 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

- 2 -
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.

I.

We 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).

In 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

- 3 -
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 initiative.

Dr. 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.

The 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

- 4 -
attributed to Samia and/or Ann.1 Neither Samia nor Ann objected

to this portion of the instructions.

The 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

$3,500,000.2

The 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,

1
The chalk, prepared by Dr. Sindi's counsel, purported to
encapsulate evidence presented at trial. It had been referred to
by Dr. Sindi's counsel during closing argument, without objection.
A copy of the chalk is reprinted as Appendix A.

2
Specifically, the jury found Samia liable for damages in
the amount of $100,000 for intentional infliction of emotional
distress, $400,000 for defamation, $2,000,000 for tortious
interference with contract, and $400,000 for tortious interference
with advantageous relations. The jury found Ann liable for
$100,000 for defamation, $400,000 for tortious interference with
contract, and $100,000 for tortious interference with advantageous
relations.

- 5 -
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.

Some 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 injunction.3

This timely appeal ensued. Following oral argument, we

directed the parties to submit supplemental briefs designed to

3 A copy of the Amended Final Judgment is reprinted as Appendix
B.

- 6 -
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.

II.

We 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).

Our 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

- 7 -
a new trial or a remittitur for abuse of discretion. See id.;

Sanchez, 37 F.3d at 717.

Since 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).

III.

We 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)).

- 8 -
The 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.4 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

4Samia and Ann also invoke the protections of Article 16 of
the Massachusetts Declaration of Rights. They have not developed,
though, any separate analysis under this provision. And in any
event, "the criteria which have been established by the United
States Supreme Court for judging claims arising under the First
Amendment . . . are equally appropriate to claims brought under
cognate provisions of the Massachusetts Constitution." Doe v. Sex
Offender Registry Bd., 947 N.E.2d 9, 28 (Mass. 2011) (quoting Ops.
of Justices, 440 N.E.2d 1159, 1160 (Mass. 1982)).

- 9 -
public figures with respect to the "limited range of issues"

surrounding the claimed defamation. Id. at 351.

In 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).

Of 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)).

- 10 -
We 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.

The 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.

Withal, "[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

- 11 -
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.

A.

With 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.

Following 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.

- 12 -
Sindi show that one or more defamatory statements were made.5

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.6

1.

We 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.7

5 Absent plain error, we treat the relevant jury instructions
as the law of the case because neither Samia nor Ann interposed
any timely objection to them. See Moore v. Murphy, 47 F.3d 8, 11
(1st Cir. 1995); see also United States v. Hussein, 351 F.3d 9, 18
(1st Cir. 2003) (noting that unobjected-to jury instruction
becomes binding unless plainly erroneous).

6 Although the appellants make passing mention of their plaint
that the defamation verdicts are against the weight of the
evidence, they do not accompany that plaint with any developed
argumentation. Consequently, we deem any such challenge
abandoned. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).

7 Although Samia disclaimed responsibility for some of these
e-mails and posts, the jury supportably could have found that she
authored all of them.

- 13 -
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.

These 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.

- 14 -
The 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.

With 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

- 15 -
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.

Nor was 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).

Casting 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

- 16 -
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.

To be 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).

2.

The 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

- 17 -
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.

We have 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.

Dr. 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

- 18 -
were total fabrications and, thus, actionable. See St. Amant, 390

U.S. at 732.

3.

The 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.

DFA was 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.

After a 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.

- 19 -
At the 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 90.

Nevertheless, 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

- 20 -
continued to shout from the rooftops (figuratively speaking) that

Dr. Sindi had nothing to do with DFA's success.

Samia's 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.

4.

The 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).

This 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,

- 21 -
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.

B.

Represented 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

- 22 -
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 claim.

Here, 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.

Just as 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

- 23 -
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).

Samia 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.

Nothing 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),

- 24 -
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).

C.

The 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.

The 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.

To 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.

- 25 -
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).

Samia's 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 discretion.8

8
We need not linger long over the appellants' exhortation
that we should order a new trial because of allegedly inflammatory
statements made by Dr. Sindi's counsel during closing argument.
These statements drew no contemporaneous objection at trial; and

- 26 -
IV.

The 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.

Samia 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.

Under 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

since the claim of error is made for the first time in the
appellants' reply brief, we deem it too little too late. See
United States v. Eirby, 515 F.3d 31, 36 n.4 (1st Cir. 2008);
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).

- 27 -
quotation marks omitted). Samia contends that her conduct was not

sufficiently extreme or outrageous to come within this framework.

It is 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. 1980).

In the 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

- 28 -
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 daughter's misbehavior.

Given 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

- 29 -
as extreme and outrageous conduct. See Conway v. Smerling, 635

N.E.2d 268, 273 (Mass. App. Ct. 1994).

Samia 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

(Mass. 1988)).

Here, 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

- 30 -
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.9 On

this record, the jury reasonably could have concluded that Dr.

Sindi's emotional distress was sufficiently severe to justify

recovery.

Samia 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).

Battling 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

9 Samia points out that some evidence in the record suggests
that Dr. Sindi's functioning was not impaired. This evidence
includes Dr. Sindi's ambitious travel schedule, her service as a
Saudi government official, and her continued work as a scientist
and entrepreneur during the relevant time frame. In the end,
though, this suggestion boils down to an invitation that we should
weigh conflicting evidence differently than the jury — and that is
an invitation that we must decline. See Trainor, 699 F.3d at 26
(making clear that, on Rule 50 motion, reviewing court must draw
"all reasonable inferences" from the evidence favorably to
nonmovant). It is for the jury, in the first instance, to resolve
conflicts in the evidence and to decide factbound issues on which
reasonable minds may differ. See id.; Agis, 355 N.E.2d at 319.

- 31 -
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 at 100.

That is 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.

- 32 -
V.

The 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.

To 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.

Samia 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

- 33 -
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.

Mindful 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 legal expenses.

These 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,

- 34 -
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.10

Samia 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 legal bills.

This 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.

10While the appellants make passing mention that the verdicts
are against the weight of the evidence, they offer no developed
argumentation on point. Thus, we deem their motion for a new trial
on liability abandoned. See Zannino, 895 F.2d at 17.

- 35 -
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.

In 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.

VI.

Samia 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

- 36 -
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).

Mere 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).

Samia 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

- 37 -
which they knowingly interfered. We test this premise against the

record.

To be 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.

There 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

- 38 -
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).

Dr. 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.

In the 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.,

- 39 -
947 F.2d 506, 517 (1st Cir. 1991); Szalla v. Locke, 657 N.E.2d

1267, 1271 (Mass. 1995).

That 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.

That 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) (Gorsuch, J.).

We summarize succinctly. Dr. Sindi's proof on her claim

for tortious interference with advantageous relations is deficient

- 40 -
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.

VII.

This brings us to the pièce de résistance: the district

court's post-trial grant of a permanent injunction. We set the

stage.

Although 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.

Based 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

- 41 -
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 dissertation;
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.

On 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

- 42 -
the scope of our appellate review and thereafter turn to the

appellants' challenges.

A.

In 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).

While recognizing that this exception to the raise-or-

waive principle must be applied sparingly and with great

- 43 -
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.

In the 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

- 44 -
Gencarelli v. UPS Capital Bus. Credit, 501 F.3d 1, 8 (1st Cir.

2007).

Our 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.

The 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

- 45 -
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 argument").

Nor is 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).

The 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

- 46 -
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,"

- 47 -
notwithstanding petitioners' failure to raise argument in opening

submissions).

The 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).

The 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

- 48 -
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.

B.

As a 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.

- 49 -
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).

We need 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 vacated.11

11
Although the appellants have not adequately developed a
separate argument concerning the legality of the injunction under
the Massachusetts Declaration of Rights, see supra n.4, it is worth
noting that Massachusetts courts have harbored doubts regarding
the appropriateness of injunctions in defamation cases, see
Krebiozen Research Found. v. Beacon Press, Inc., 134 N.E.2d 1,6
(Mass. 1956) ("It is apparent that the constitutional protection

- 50 -
We 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).12 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

of free speech and public interest in the discussion of many issues
greatly limit . . . the power to give injunctive relief . . . in
defamation cases."); cf. Nyer v. Munoz-Mendoza, 430 N.E.2d 1214,
1217 (Mass. 1982) (suggesting, in dictum, that "even allegedly
false and defamatory statements are protected from prior
injunctive restraint by the First Amendment and art. 16" of the
Massachusetts Declaration of Rights).
12The amicus posits that Massachusetts law, not federal law,
should govern with respect to the motion for a permanent
injunction. This point of view raises a nuanced question
implicating the Erie doctrine, see Erie, 304 U.S. at 78, but it is
a question that we can safely bypass. For one thing, no party has
objected to the district court's decision to apply the federal
standard. For another thing (and relatedly), it is settled that
an amicus "cannot introduce a new argument into a case." United
States v. Sturm, Ruger & Co., 84 F.3d 1, 6 (1st Cir. 1996).
Finally, nothing appears to turn on this point: Massachusetts law
and federal law seem to place substantially similar burdens on a
party seeking a permanent injunction. See Kenyon v. City of
Chicopee, 70 N.E. 2d 241, 244 (Mass. 1946).

- 51 -
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).

The 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.13 See Tory,

544 U.S. at 738 (treating post-trial injunction against

13 The district court, relying on precedent from the
California Supreme Court, see Lemen, 156 P.3d at 343, concluded
that the challenged injunction was not a prior restraint because
it followed a finding of defamation liability at trial and,
therefore, was not presumptively unconstitutional, see Sindi v.
El-Moslimany, No. 13-cv-10798, 2016 U.S. Dist. LEXIS 110021, at
*1-2 (D. Mass. Aug. 18, 2016). We do not agree. The California
Supreme Court's approach impermissibly conflates "the question of
whether the injunction is a prior restraint with the issue of
whether the injunction should be allowed." Chemerinsky, supra, at
165; accord Kinney, 443 S.W.3d at 93. Consistent with this view,
Dr. Sindi (in her supplemental briefing) concedes that the
challenged injunction is a prior restraint. She also concedes
that the appropriate level of scrutiny is strict scrutiny.

- 52 -
republication of previously defamatory statements as prior

restraint).

There 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

- 53 -
demanded by our First Amendment jurisprudence. See Stuart, 427

U.S. at 559.

Such 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.

The 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 in the nature of

a prior restraint issues, the harm is "immediate and irreversible."

Stuart, 427 U.S. at 559.

- 54 -
In this case, Dr. Sindi argues that the challenged

injunction comports with the First Amendment because the six

statements were previously employed to defame her and, thus, no

longer constitute protected speech. This argument has some

superficial appeal: an injunction against speech sometimes may

pass constitutional testing if it follows an adjudication that the

expression is unprotected, and the injunction itself is narrowly

tailored to avoid censoring protected speech. See Pittsburgh Press

Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 390

(1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55 (1973).

For instance, the Supreme Court has approved a permanent injunction

against the distribution of specific booklets "found after due

trial to be obscene," where the injunction did not extend to

"matters not already published and not yet found to be offensive."

Kingsley Books, Inc. v. Brown, 354 U.S. 436, 437, 445 (1957); cf.

Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993)

(setting forth similar proposition in dictum). The analogy that

Dr. Sindi draws to Kingsley Books is tempting because (in the idiom

of the First Amendment) obscenity — like defamation — is a category

of unprotected speech. See Free Speech Coal., 535 U.S. at 245-

46.

In the end, though, Dr. Sindi's proffered analogy

glosses over significant distinctions between obscenity and

defamation that make injunctions of obscene communications less

- 55 -
problematic in constitutional terms. The obscenity doctrine

proscribes specific expressive works (such as books or movies)

that appeal to prurient interests, depict sexual behaviors in

patently offensive ways, and lack "serious literary, artistic,

political, or scientific value." Miller v. California, 413 U.S.

15, 24 (1973). Works adjudged obscene — such as the booklets in

Kingsley Books — are immutable forms of expression. Hence, the

permanent injunction there could be carefully crafted to ensure

that it applied only to the specific publications found obscene

without exposing the bookseller to contempt sanctions for

distributing other publications that might be protected under the

First Amendment. See Kingsley Books, 354 U.S. at 445.

An injunction that prevents in perpetuity the utterance

of particular words and phrases after a defamation trial is quite

a different matter. By its very nature, defamation is an

inherently contextual tort. See Greenbelt Coop. Publ'g Ass'n v.

Bresler, 398 U.S. 6, 13-14 (1970); Piccone v. Bartels, 785 F.3d

766, 772 (1st Cir. 2015); cf. United States v. Alvarez, 567 U.S.

709, 719 (2012) (plurality opinion) (noting that defamation

entails not merely a "false statement," but a "legally cognizable

harm associated with a false statement"). Words that were false

and spoken with actual malice on one occasion might be true on a

different occasion or might be spoken without actual malice. What

is more, language that may subject a person to scorn, hatred,

- 56 -
ridicule, or contempt in one setting may have a materially

different effect in some other setting.14 Cf. Pittsburgh Press,

413 U.S. at 390 (sustaining injunction where court was not required

"to speculate as to the effect of publication").

The cardinal vice of the injunction entered by the

district court is its failure to make any allowance for contextual

variation. Refined to bare essence, it enjoins Samia and Ann from

repeating certain words, regardless of their purpose in employing

them. Consequently, the injunction "sweeps . . . more broadly

than necessary" by prohibiting the appellants from engaging in

speech about a public figure "before an adequate determination

that it is unprotected by the First Amendment." Id.

For instance, the injunction precludes the appellants

from restating that Dr. Sindi "is an academic and scientific

14
For example, a criminal suspect once sued a newspaper for
defamation over its report that he had been arrested "after
assaulting a police officer . . . ." Foley v. Lowell Sun Publ'g
Co., 533 N.E.2d 196, 196 (Mass. 1989). Though the plaintiff
insisted that this amounted to a false accusation that he had
committed assault, the Massachusetts Supreme Judicial Court
disagreed after reviewing the allegedly defamatory sentence in the
context of the entire article. See id. at 197. Among other
things, the headline made clear that the plaintiff had only been
"charged with assaulting [the] officer," and the story repeatedly
employed cautionary language. Id. (emphasis in original); see id.
at 199 (reporting that the plaintiff committed the assault,
"according to police"). Once the statement was "read in the
context of the article as a whole, its clear meaning [was] to
report" the plaintiff's arrest, not to accuse him of committing
assault. Id. at 197. Since it was undisputed that the plaintiff
had been arrested, the statement was not actionable.

- 57 -
fraud." Although the appellants have in the past used those words

with actual malice (or so the district court supportably found),

there are a number of future contexts in which their repetition of

this statement might be protected speech. We offer three examples:

 If, say, Samia or Ann learns in the future of fraud

actually perpetrated by Dr. Sindi and accurately reports

it, the speaker would face contempt sanctions under the

injunction even though the right to disseminate truthful

information about public figures lies at the core of the

First Amendment. See N.Y. Times Co., 376 U.S. at 270.

 If, say, Samia or Ann were interviewed by a reporter and

asked what speech the challenged injunction prevented

them from repeating, a reply to the effect that, "I am

not allowed to state that Dr. Sindi is an academic and

scientific fraud" would subject the speaker to contempt

sanctions notwithstanding the truth of the reply.

 Perhaps most remarkably, the appellants would face

contempt sanctions for disseminating a letter describing

their accusations and apologizing for them.

The list of contextual permutations is virtually endless. The

situations that we have described are but a few of the possible

examples that show, beyond hope of peradventure, that the

- 58 -
challenged injunction is neither narrowly tailored nor precisely

fitted to the circumstances of the case.

As framed, the injunction is so wide-ranging and devoid

of safeguards that it plainly contravenes the First Amendment's

limitation of liability for speech about public figures to false

assertions of fact made with actual malice. See Hustler Magazine,

Inc. v. Falwell, 485 U.S. 46, 56 (1988). We conclude, therefore,

that the injunction punishes future conduct that may be

constitutionally protected, see Conrad, 420 U.S. at 559, and thus

fails the First Amendment requirement that it be "tailored as

precisely as possible to the exact needs of the case," Carroll,

393 U.S. at 184.

In an effort to blunt the force of this reasoning, our

dissenting brother defends the injunction on the ground that,

should the appellants choose to republish any of the six statements

for a non-defamatory purpose, they may move to modify the

injunction in light of changed circumstances. See post at 89-90.

To support this defense, he relies on the California Supreme

Court's dictum surmising that a defamation defendant's ability to

move to modify an injunction alleviates any concern that the

injunction may penalize or chill constitutionally protected

speech. See Lemen, 156 P.3d at 353. But this is little more than

a hopeful improvisation: neither our dissenting brother nor the

- 59 -
California Supreme Court identifies any other First Amendment

precedent supporting this extraordinary proposition. In light of

a court's power to levy contempt sanctions (up to and including

imprisonment) for disobedience under the collateral bar rule, see

Walker, 388 U.S. at 314-21, "the right to free speech should not

lightly be placed within the control of a single man or woman,"

Madsen, 512 U.S. at 793 (Scalia, J., concurring in part and

dissenting in part). A decree that requires a judicial permission

slip to engage in truthful speech is the epitome of censorship.

See Near, 283 U.S. at 713; Kinney, 443 S.W.3d at 98; see also

Chemerinsky, supra, at 172. To make a bad situation worse, the

appellants would bear the burden of pointing to changed

circumstances in any proceeding to modify the injunction. See

Horne v. Flores, 557 U.S. 433, 447 (2009). Such a circumstance

would be repugnant to the First Amendment, which requires a public-

figure plaintiff, not the defendant, to prove actual malice and

falsity. See Gertz, 418 U.S. at 342.

The dissent attempts to analogize this case to Madsen

and Schenck v. Pro-Choice Network of Western New York, 519 U.S.

357 (1997). See post at 84-89. With respect, this attempted

analogy does not work. In those cases, the Supreme Court partially

sustained injunctions against protest activities near abortion

clinics. The Court concluded that neither injunction was a prior

restraint and, therefore, neither was presumptively

- 60 -
unconstitutional. See Schenck, 519 U.S. at 374 n.6; Madsen, 512

U.S. at 763 n.2, 766. The Court's rationale is instructive. It

emphasized that the injunctions were content-neutral and left

"alternative channels of communication" available to the anti-

abortion protesters. Schenck, 519 U.S. at 374 n.6. The protesters

"remain[ed] free to espouse their message," so long as they were

outside the buffer zone delineated by the injunctions. Id. at

385; see Madsen, 512 U.S. at 763 n.2.

The injunction here is quite different. As Dr. Sindi

acknowledges, it is not content-neutral. This is significant

because the Supreme Court has found Madsen inapposite when — as in

this case — the defendant was exposed to liability based on "what

[it] said." Snyder v. Phelps, 562 U.S. 443, 457 (2011). What is

more, the challenged injunction forbids the appellants from ever

republishing the six statements about Dr. Sindi, regardless of the

forum or the purpose. As such, it does not leave open alternative

channels of communication. Seen in this light, the injunction

must withstand strict scrutiny (as Dr. Sindi concedes) and, thus,

is presumptively unconstitutional.

When all is said and done, we need not answer the vexing

question of whether a federal court may ever permanently enjoin

republication of ad hoc oral or written statements on the ground

that those statements will be defamatory if made anew. Similarly,

- 61 -
we take no view of the legality of an injunction ordering "the

removal or deletion of speech that has been adjudicated

defamatory," such as a decree requiring the erasure of a statement

from a website after an adjudication that the statement was

"unprotected in the context in which it was made." Kinney, 443

S.W.3d at 89, 93, 99 (upholding such an injunction and explicating

the "legally cogent division between mandatory injunctions calling

for the removal of speech that has been adjudicated defamatory and

prohibitive injunctions disallowing its repetition").

To say more would be to paint the lily. The First

Amendment requires that less intrusive remedies be unavailable

before injunctive relief can be considered and that any injunction

be as narrowly tailored as possible to avoid censoring protected

speech. See Carroll, 393 U.S. at 183-84. Because the challenged

injunction cannot conceivably survive this strict scrutiny, it

must be vacated.15

15For the sake of completeness, we note that the injunction
appears to suffer from other defects, including the absence of any
detailed findings regarding the adequacy of remedies at law (a
sine qua non for injunctive relief). See eBay, 547 U.S. at 391.
This omission is especially troublesome in light of the strong
presumption that damages are an adequate remedy for a defamation
plaintiff. See Metro. Opera Ass'n, 239 F.3d at 177; Organovo
Holdings, Inc. v. Dimitrov, 162 A.3d 102, 117 & n.67, 119 (Del.
Ch. 2017).
We also note that our holding eliminates any necessity for us
to pass upon the appellants' other challenges to the injunction,
including their contention, clearly articulated for the first time

- 62 -
VIII.

We summarize succinctly. The evidence in this case tells

a tawdry tale of two women who let their antipathy for a third

woman lead them into inexcusable behavior. The jury supportably

found that this course of conduct was tortious in several respects,

and its assessment of damages on those counts, as refined by the

able district judge, passes muster. The post-trial injunction,

though, is a bridge too far: it cannot survive the strict scrutiny

that the First Amendment demands of prior restraints on speech.

Even the bad behavior exhibited by the appellants cannot justify

crossing well-established constitutional lines.

We need go no further. For the reasons elucidated above,

we affirm the judgment of the district court with respect to the

claims of defamation, intentional infliction of emotional

distress, and tortious interference with contract. We reverse the

judgment with respect to the claim for tortious interference with

advantageous relations. Finally, we vacate the post-trial

injunction improvidently issued by the district court. All parties

shall bear their own costs.

So ordered.

— Separate Opinion Follows —

at oral argument in this court, that the Seventh Amendment bars
the injunction because the jury returned only a general verdict.

- 63 -
BARRON, Circuit Judge, concurring in part and dissenting

in part. There is no more basic First Amendment principle than

that the government may not restrain speech in advance of its

expression simply because it may cause offense. We must be

cautious, therefore, before we uphold an injunction, like the one

before us, that bars the expression of certain specific statements

due to the harm that they may cause. At the same time, there are

few more basic principles of adjudication than that "if it is not

necessary to decide more, it is necessary not to decide more."

PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts,

J., concurring). In my view, the majority, by seeking to vindicate

the first principle, gives insufficient attention to the second.

The result is that the majority strikes down this

injunction by unnecessarily announcing a broad constitutional

rule. Under that rule, it would appear that a lower court may not

enjoin a recidivist defamer from using particular words, even when

he has been properly found to have repeatedly used those same words

in the past to defame the party that seeks the injunction and even

when he has been found to be likely to do so again absent the

injunction.

This result follows from the majority's decision to

subject such an injunction to strict First Amendment scrutiny.

The majority applies that demanding form of review because it

treats such an injunction as a presumptively unconstitutional

- 64 -
prior restraint. And the majority then strikes down this

injunction under such scrutiny because it fails to require proof

of actual defamation in order to show its violation. See Maj. Op.

at 50-62.16

In adopting this constitutional rule, the majority makes

the following equation. It treats a specific, tailored means of

stopping the recurrence of speech that the First Amendment does

not protect as if it were a regulation designed to stop the initial

expression of protected speech due to the offense that it may

cause.

The decision to make this equation fits uncomfortably

with our own circuit's precedent. It also conflicts with the only

precedents that have decided the issue under the First Amendment.

And, finally, it creates tension with Supreme Court rulings that

afford lower courts significant discretion to enjoin parties from

resuming their unprotected and unlawful expressive conduct.

16
The majority at times relies on precedents that apply
something less than strict scrutiny, which requires that a
regulation of speech be "the least restrictive means of achieving
a compelling state interest." McCullen v. Coakley, 134 S. Ct.
2518, 2530 (2014). For example, the majority relies on the
constitutional test described in Carroll v. President &
Commissioners of Princess Anne, 393 U.S. 175 (1968). See Maj. Op.
at 59, 62. But, in Madsen v. Women's Health Center, Inc., 512
U.S. 753 (1994), the Supreme Court described the Carroll test as
no different from the one applied in Madsen, id. at 767, which the
Supreme Court distinguished from strict scrutiny, id. at 762-64,
and which the majority here distinguishes from the form of "strict
scrutiny" that it asserts applies. Maj. Op. at 61.

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The majority's rule also gives rise to significant

practical concerns. We live in a world in which defamation

campaigns may reach millions in an instant and essentially for

free. Injunctions crafted in general terms to conform to the

majority's rule risk inviting obstinate and proven defamers to

resume their defamatory campaigns by wagering that their victims

will lack the energy to enforce an injunction that requires them

to prove actual defamation all over again.

In light of these concerns, I cannot sign on to the

majority's rule, whatever its ultimate merits. And that is

because, in my view, there is no need to announce it. The enjoined

parties never timely made the debatable federal constitutional

arguments on which the majority relies.

Nor can I sign on to the decision to vacate this

injunction. The only other argument that the majority suggests

could be a ground for vacating it, which challenges the District

Court's finding that Sindi would suffer irreparable harm absent

this injunction, see id. at 62 n.15, also was not properly raised

by the defendants either below or on appeal. And the arguments

that the defendants did properly present to us in challenging the

injunction lack merit.

For these reasons, although I fully join the majority's

thorough and persuasive analysis in Parts I through VI of its

opinion, I dissent from Part VII.

- 66 -
I.

To explain my concerns, I first review how this

injunction came to be. I then describe the limited reach of the

grounds for striking it down that the defendants timely made.

Finally, I explain that this is not a case in which we should make

an exception to our usual "raise-or-waive" requirement. Nat'l

Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995).

A.

The plaintiff, Hayat Sindi, came to federal court to

seek relief from the defendants' five-year defamatory campaign.

She successfully made her defamation case to a jury, which awarded

her a multi-million dollar verdict.

Nevertheless, Sindi was concerned that the defendants

would not be deterred. She therefore sought a permanent injunction

to prohibit them from making the statements that she alleged they

had been making to defame her in the five years preceding her suit.

Absent such an injunction, Sindi argued, she would suffer

irreparable harm to her "reputation, business dealings, and

emotional well-being" because the defendants would pick up where

they had left off.

After hearing from the parties, the District Court

issued a narrowed injunction that encompassed only six of the

twenty-six statements that Sindi initially had sought to enjoin.

In doing so, the District Court found that the defendants clearly

- 67 -
had used the six statements to defame Sindi, resulting in

irreparable harm to her, and that, absent the narrowed injunction,

the defendants would likely continue to do so.17

Significantly, the defendants never made a peep

-- either below or in their opening and reply briefs on appeal

-- that indicated that they wanted to use the six statements in

different contexts from those in which they had used them in the

past. The defendants also did not meaningfully dispute -- either

below or on appeal -- that they were likely to repeat the

statements in that same way.18

Nor did the defendants argue that Sindi had failed to

show that only an injunction, as opposed to a damages award, would

be a sufficient remedy for any harm that she would suffer from the

defendants' continuing to use the statements as they had. Rather,

below, the defendants initially argued that she would not suffer

17
To support this finding, the District Court pointed to
Sindi's evidence showing that the defendants "continued their
libelous campaign even up to the night before trial began" and
that at trial they then "both admitted under oath that they
intended to continue their defamatory campaign in the future." In
addition, the District Court reasoned that, "[e]ven following a
jury award of $3,500,000 in damages, [the defendants'] opposition
to the motion for [a] permanent injunction speaks only to their
purported right to make the statements and the court's purported
lack of authority to enjoin the conduct, but offers no assurances
that they will voluntarily stop their tortious conduct."
18
The defendants' counsel did represent, in response to a
question from the District Court at the hearing on the proposed
injunction, that "it is not their intention to continue making
these statements." But, he offered no evidence, and he conceded
that the testimony at trial was to the contrary.

- 68 -
such irreparable harm because their past communication of the

statements had not actually harmed Sindi. And, on appeal, the

defendants then abandoned even that limited challenge to the

finding of irreparable harm that the District Court had ended up

making.

The defendants did contend throughout this litigation

that the proposed injunction violated the First Amendment. But,

they did so by contending only that an injunction that barred the

future expression of the six statements could not possibly be a

valid prophylactic means of stopping their defamatory conduct

going forward because: (1) the jury had returned a general verdict

and thus did not expressly find that each of the statements

encompassed by the injunction had been made in a defamatory manner

in the past and (2) the evidence presented to the jury was, in any

event, too weak to have permitted a jury to have so found.

The defendants thus never suggested at any point that

strict scrutiny (or even heightened review) applied to the

injunction insofar as it was properly predicated on findings that

the defendants had engaged in prior defamation through their use

of those statements.19 Nor did the defendants argue that such a

19In the District Court, the defendants did appear to attack
the enjoining of a libel under Massachusetts law. But, whether
this injunction may issue under Massachusetts common law and the
Massachusetts Constitution is among the issues that the defendants
have failed to preserve, as the majority recognizes. See Maj. Op.
at 50 n.11. In any event, any such state-law-based argument is

- 69 -
properly predicated injunction would be an impermissible prior

restraint under the First Amendment.

At oral argument on appeal, the defendants' counsel (who

was not trial counsel) did attempt to argue for the first time,

and despite the defendants' previous assertions to the contrary,

the following: The injunction was a prior restraint that violated

the First Amendment because it enjoined the defendants from

repeating the six statements regardless of the context in which

they might be communicated in the future. But, even then the

defendants' counsel did not directly contend that strict scrutiny

applied. And, when asked if the defendants had made that argument

in their briefs on appeal, he conceded: "No, not the contextual

argument."

Thus, based on the only two arguments that the defendants

properly presented to us -- namely, that the injunction encompassed

statements that no jury had found to be defamatory and that, on

the record established at trial, no adjudicator could so find -- we

have no reason to vacate this injunction. As Sindi persuasively

shows, and the majority does not dispute, neither argument has

merit.

not clearly supported by the state precedent brought to our
attention by the amicus, which precedent the majority observes
merely raises "doubts" about the propriety under Massachusetts law
of an injunction of the kind before us but does not categorically
preclude its issuance. See id.

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The defendants do not adequately explain why the First

Amendment bars the District Court from issuing this injunction

simply due to the absence of a special verdict by the jury, given

that the District Court supportably found that the defendants

defamed Sindi in the past with each of the six enjoined statements

and that the defendants would likely continue to do so.20 The

defendants also fail to show that the record cannot support the

District Court's finding that the defendants had used each enjoined

statement to defame Sindi.

B.

Nonetheless, the majority does vacate the injunction.

It does so by relying on a ground that the defendants did not

properly raise either below or on appeal: that this injunction is

a presumptively unconstitutional prior restraint that is subject

to strict scrutiny, which it flunks because it enjoins particular

statements regardless of the context in which they are used. See

Maj. Op. at 50-62.

The majority acknowledges that its decision to rely on

this defaulted argument is most unusual. See id. at 43. Under

our "raise-or-waive" rule, which we ordinarily apply with "a near-

religious fervor," the defendants would have to "forever . . .

20 As the majority notes, the defendants did not develop a
timely Seventh Amendment challenge to issuing the injunction
absent a special verdict by the jury. Maj. Op. at 62 n.15.

- 71 -
hold their peace" with respect to that argument. Nat'l Ass'n of

Soc. Workers, 69 F.3d at 627 (failure to raise below); accord

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (failure

to raise on appeal). And, the majority recognizes, see Maj. Op.

at 43, there is good reason to enforce that "raise-or-waive"

requirement strictly, as it serves important "systemic ends,"

Nat'l Ass'n of Soc. Workers, 69 F.3d at 627, by incentivizing

parties to make arguments in a timely way and by ensuring that

like cases are treated alike.

The majority nevertheless suggests that because this

case involves a regulation of speech crafted by a federal court,

there is reason to relax our usual "raise-or-waive" rule. See

Maj. Op. at 46-47. But, the majority does not rule that the

District Court lacks equitable jurisdiction to impose this remedy.

See id. at 61. And I see no reason to encourage parties to assume

that, in general, they need not be as diligent in pressing their

personal constitutional rights in challenging court-crafted

injunctions as we routinely require criminal defendants to be in

challenging court-crafted sentences.21

21 The injunction cases on which the majority relies do not
suggest otherwise. See Maj. Op. at 47. In two of them, the
Supreme Court on its own raised arguments that the parties had not
pressed only because the equitable jurisdiction of the federal
courts was at issue. See Schlesinger v. Councilman, 420 U.S. 738,
743-44, 753-61 (1975); Younger v. Harris, 401 U.S. 37, 40, 43-54
(1971). But, here, the majority assumes (without deciding) that
the District Court did have equitable jurisdiction to issue the

- 72 -
Moreover, to the extent that the majority is inclined to

relax our "raise-or-waive" rule in this case, I certainly see no

reason to reach the prior restraint/strict scrutiny issue. The

majority itself suggests that the injunction could be

independently invalidated on the far narrower ground that the

record does not support the District Court's finding that the

injunction is necessary to protect Sindi from irreparable harm.

See id. at 62 n.15.

To be sure, that argument, too, was defaulted by the

defendants. But, by resting its vacatur solely on the irreparable

harm argument, the majority at least would be issuing a relatively

narrow, record-dependent ruling, with no broad federal

constitutional implications.22

injunction, see Maj. Op. at 61, and strikes it down based solely
on the defendants' personal rights under the First Amendment. The
only other injunction case that the majority cites reached an
arguably unpreserved argument that clearly had been raised on
appeal. See Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real
Estate Info. Servs., 608 F.3d 110, 125-26 (1st Cir. 2010).
22 There is yet another way to issue a narrower, non-
constitutional ruling in this case. It is by no means clear that
"whatever equitable remedy is available in a State court must be
available in a diversity suit in a federal court," given the
precedent that suggests that "[e]quitable relief in a federal court
is of course subject to restrictions" -- including that "the suit
must be within the traditional scope of equity as historically
evolved in the English Court of Chancery" -- and "[t]hat a State
may authorize its courts to give equitable relief unhampered by
any or all such restrictions cannot remove these fetters from the
federal courts." Guar. Tr. Co. v. York, 326 U.S. 99, 105-06
(1945). Thus, even if there were a reason to decide this case
based on defaulted arguments, I do not see why it is clear that
the right defaulted argument to rely on is one that restricts the

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Nor am I persuaded by the majority's conclusion that it

makes sense to decide this case on the basis of the forfeited

constitutional argument in light of our precedent recognizing that

"'an appellate court has discretion, in an exceptional case, to

reach virgin issues,' that is, to relieve a party of a prior

forfeiture." Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st

Cir. 2002) (en banc) (per curiam) (quoting United States v. La

Guardia, 902 F.2d 1010, 1013 (1st Cir. 1990)). Under this

exception to the "raise-or-waive" rule, we may exercise discretion

to decide a case based on a forfeited argument after considering

a variety of factors, such as whether the underlying issue is of

"constitutional magnitude" and "great public moment"; the party's

failure to address it was "entirely inadvertent rather than

deliberate"; its proper resolution is sufficiently clear that the

lower court can be said to have plainly erred; and deciding it

will not result in "special prejudice or inequity" to the non-

defaulting party or "deprive[] the court of appeals of useful

factfinding." Nat'l Ass'n of Soc. Workers, 69 F.3d at 627-28;

accord Chestnut, 305 F.3d at 21.

authority of not only federal courts but also state courts. And
that is especially so given the care with which state courts seem
to be grappling with the longstanding question concerning the scope
of their own equitable jurisdiction to remedy defamation. See
Roscoe Pound, Equitable Relief Against Defamation and Injuries to
Personality, 29 Harv. L. Rev. 640 (1916).

- 74 -
Here, of course, we are dealing with a failure to

properly raise an argument in appellate briefing as well as in the

district court. But, insofar as the exception to our "raise-or-

waive" rule on which the majority relies applies to such a

situation,23 I cannot see why it applies here. The prior

restraint/strict scrutiny issue is of "constitutional magnitude"

and, at least arguably, of "great public moment."24 But, the other

factors that we have held bear on deciding whether to excuse a

forfeiture weigh against doing so.

23 In every case that the majority cites concerning this
doctrine, see Maj. Op. at 43-45, the issue we reached had been,
unlike in this case, timely raised by the defaulting party on
appeal. See Gencarelli v. UPS Capital Bus. Credit, 501 F.3d 1, 8
(1st Cir. 2007); Chestnut, 305 F.3d at 19-21; Nat'l Ass'n of Soc.
Workers, 69 F.3d at 627-30; La Guardia, 902 F.2d at 1012-13. Nor
do the Supreme Court cases that the majority cites with respect to
excusing procedural defaults address the circumstances in which
appellate courts may reach issues never timely raised on appeal.
See Maj. Op. at 43, 46. In Hormel v. Helvering, 312 U.S. 552
(1941), the Supreme Court merely acknowledged a reviewing court's
authority to reach an unpreserved issue that had been argued before
it on appeal. Id. at 554-59. And, in Singleton v. Wulff, 428
U.S. 106 (1976), the issue was whether a reviewing court may pass
on a properly presented merits argument, as opposed to remanding,
after reversing a lower court's dismissal for non-justiciability;
the Court had no occasion to address a reviewing court's discretion
to address an argument that no party had properly presented to it.
Id. at 120-21.
24 We have explained that the "great public moment" factor
concerns whether the defaulted argument "touches upon policies as
basic as federalism, comity, and respect for the independence of
democratic institutions." Nat'l Ass'n of Soc. Workers, 69 F.3d at
628. It is at least not obvious to me that the defaulted strict
scrutiny/prior restraint argument implicates policies of that
sort, unlike the defaulted arguments about the immunities enjoyed
by state legislators and municipalities in National Association of
Social Workers, 69 F.3d at 627, and Chestnut, 305 F.3d at 19-20.

- 75 -
To begin with, it would be extremely generous to

characterize as "entirely inadvertent," Nat'l Ass'n of Soc.

Workers, 69 F.3d at 628 (emphasis added), the defendants' years-

long strategy of training their fire solely on the supposedly

inadequate predicate finding that the defendants used the six

enjoined statements to defame Sindi in the past. Indeed, at the

hearing on the proposed injunction, the District Court, quite

conscientiously, sought to make sure that the defendants' federal

constitutional challenge to Sindi's proposed injunction was as

limited as it appeared to be. And, in response, the defendants'

counsel made clear that it was: "I think there would not be a

prior restraint, your Honor, if there had been a final adjudication

as to certain statements" finding that they were defamatory. That

counsel also confirmed that same position repeatedly at that same

hearing. And he did so without ever suggesting that the

injunction, as drafted, might be unconstitutional under the First

Amendment if it were properly predicated.

Consistent with those representations, moreover, the

defendants also declined the District Court's express invitation

to suggest that "the language [of the injunction] should be tweaked

one way or another to not create a prior restraint." And that was

the case even though the District Court soon thereafter had,

prudently, circulated for comment a narrowed version of the

- 76 -
proposed injunction that targeted just six of the twenty-six

statements that Sindi initially had sought to enjoin.

It also seems to me that prejudice does result from our

willingness to revive this never-before-raised constitutional

argument. The parties were given a chance to provide supplemental

briefing to address it. But, we have never suggested that the

provision of that opportunity is a panacea. And here it is not.

If the defendants had given Sindi some indication below

that they actually wished to use the enjoined statements in new

contexts, she potentially could have further developed the record

regarding just how the defendants did intend to use those

statements and why the injunction -- in whatever form it would

then take in such circumstances -- was necessary to prevent the

defendants from nevertheless using the statements to defame her.

Had that happened, the District Court could have then evaluated

that more developed record and either scaled back the injunction

in some calibrated manner that might still protect Sindi or issued

this same injunction after making findings on the key disputed

points concerning the defendants' likely future conduct.

What the case then would have looked like we cannot know,

precisely because we are raising these constitutional issues on

our own and are thus deprived of that "useful factfinding." Id.

at 627. But, we are not the only ones who lose out by short-

circuiting this normal adjudicative process. Because we have

- 77 -
transformed what had been a concrete dispute into an abstract one,

Sindi finds herself stripped altogether of the protection that she

had secured. And she is stripped of it based on a speculative

expressive interest that we have assumed the defendants must have,

even though the defendants themselves never gave her (or the

enjoining court) any indication that they actually do.25

Perhaps the fact that we are deciding this case in this

artificial posture does not matter. Perhaps, under the majority's

rule, there is no showing that Sindi could make about her proven

defamers' likely future conduct that would entitle her to an

injunction of this kind. Perhaps, in fact, she would not be able

to make such a showing even if the defendants had been found to

have been in violation of an earlier injunction that did require

Sindi to prove defamation to enforce it.

But, if, as appears, that is what the majority means to

hold, then, in my view, it is especially clear that we have no

good reason to make an exception to our "raise-or-waive" rule here.

For, as I will next explain, such a broad federal constitutional

holding hardly rests on a legal conclusion that is so plainly right

25 Nor do the interests of third parties make the First
Amendment interests potentially at stake in this case any less
theoretical. This injunction expressly applies only to the two
defendants, and they have not challenged the District Court's
findings that they likely want to use the statements only as they
had used them before, which necessarily means that they are
unlikely to communicate the statements to any third parties for
any protected purpose.

- 78 -
that it is of the kind that "often inclines a court to entertain

a pivotal argument for the first time on appeal." Id. at 628

(quoting La Guardia, 902 F.2d at 1013).

C.

As the majority recognizes, there is no on-point

precedent -- from either our court or the Supreme Court -- that

dictates the federal constitutional rule that it announces. See

Maj. Op. at 49. Of course, the absence of such precedent is not

conclusive as to whether the rule that the majority adopts is so

plainly right that the party that would benefit from its

announcement may be excused for having failed to raise the issue

properly.

But, here, the problem with finding the law so clear

that no argument about it need be timely raised is more

fundamental. For, in this case, there is not merely a dearth of

controlling supportive precedent, but also substantial (though not

controlling) opposing precedent and not a single case of any court

that actually holds what the majority now does.

1.

To begin, as the majority acknowledges, there is no

controlling Supreme Court precedent that makes clear what the

majority holds: that an injunction that bars the expression of

certain statements is a presumptively unconstitutional prior

restraint under the First Amendment even when it rests on findings

- 79 -
that the enjoined party had engaged in prior unprotected, unlawful

uses of the enjoined statements and will likely use those

statements in that same unprotected and unlawful manner going

forward absent the injunction. And the fact that there is no such

precedent should give us pause.

This injunction -- like any that bars a party from making

any statement -- does preclude expression before it is expressed.

But, we have no reason to conclude that the absence of Supreme

Court precedent treating an injunction like this one as a

presumptively unconstitutional prior restraint should be chalked

up to the fact that the Court simply has not yet gotten around to

doing so, because, once it does, the result will be obvious. To

the contrary, the Supreme Court has expressly cautioned that "[t]he

phrase 'prior restraint' is not a self-wielding sword. Nor can it

serve as a talismanic test." Kingsley Books, Inc. v. Brown, 354

U.S. 436, 441 (1957); see also Madsen, 512 U.S. at 764 n.2

(explaining that "[n]ot all injunctions that may incidentally

affect expression . . . are 'prior restraints' in the sense that

that term was used in New York Times Co. [v. United States, 403

U.S. 713 (1971) (per curiam)]").26

26
The only precedents involving injunctions targeted at
unprotected speech that the defendants cite in their supporting
brief for the view that strict scrutiny applies here did not in
fact apply strict scrutiny. For example, the defendants cite
language from Tory v. Cochran, 544 U.S. 734 (2005), that "[a]n
'order' issued in 'the area of First Amendment rights' must be

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Our

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4293312. Public record. Not legal advice.