[posted by Justin Levine]
For those who know me, it should come as no surprise that I strongly disagree with today’s decision by the California Supreme Court that sustains a permanent injunction against a defendant’s speech after she was found liable for defamation.
In the words of the dissent:
“The majority acknowledges that the statements the trial court has prohibited defendant from uttering may in the future become true. In that event, the majority concludes, defendant has an adequate remedy because she may apply to the trial court for modification of the injunction. I disagree. To require a judge’s permission before defendant may speak truthfully is the essence of government censorship of speech and in my view is constitutionally impermissible.”
I look at it this way – Let’s say that a court determines that statement X is defamatory, and that the defendant is therefore liable for uttering it. Let’s also say that the court issues an injunction that prevents the defendant from uttering X in the future (without first getting permission from the court).
Now here comes the crucial test – Let’s say that I go on to say statement X (word for word). Would I need to get permission from the court ahead of time in order to say it? Presumably not, since I am not under the jurisdiction of the injunction. But this very fact reveals the fatal flaw in the court’s reasoning. If the court has already determined as a matter of law that statement X is libelous, why should it then be the case that the defendant must now get the court’s permission to utter it ahead of time, while I do not? If I am not similarly bound by the injunction, then what exactly is the purpose of it? Certainly not to protect the plaintiff, otherwise it should logically extend to me.
If a court “officially” declares a statement to be libelous (and thus not protected by the Constitution), then why should it not have the power to prevent any citizen within its jurisdiction from uttering it in the future (regardless of if they have been previously sued over it or not)?
I don’t know about you, but the thought of a court issuing an official list of defamatory statements that could then be used to prevent anyone from uttering without court permission strikes me as insane. Perhaps that is why the courts don’t apply such injunctions to the general public – only to the specific defendant who managed to get sued over it. But once you recognize that fact, I hope you will then understand the flaw in reasoning behind the notion of a permanent injunction against the defendant’s future speech.
Let’s take a look at how this differs from obscenity in the law (which the Court attempts to analogize in justifying its own decision). If smut mag X is determined to be obscene and unprotected speech, then it makes sense for the court to enjoin the material regardless of who possesses or distributes it. It makes no logical sense to declare that Mr. A can possess smut mag X, but Mr. B cannot simply because he was previously brought before the court for possessing mag X. The injunction in this case is ultimately directed towards the material itself (mag X), not the possessor of the material. So then the question remains: Do you think a similar injunction dynamic should apply to defamatory utterances? If you would be uncomfortable with this notion (and hopefully you are, as I am), then I hope that you will begin to understand why I feel the Court is on shaky ground here.
The Supreme Court at least recognized that aspects of the original injunction were overly broad, but it still misses the mark in understanding the core philosophy behind the First Amendment. Hopefully the U.S. Supreme Court will take up this issue one day and make the right choice.
So says I. Here endeth the rant.