California Supreme Court Screws The Pooch On Permanent Speech Injunctions For Libel
[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.
On reading the links, it seems as if the plaintiff is (1) a kook and (2) probably pretty close to judgment proof in terms of monetary damages. Assuming that the claims she made against the restaurant are false (poisons customers, rat-infested, front for a brothel, etc.), wouldn’t they have fallen under criminal libel/slander statutes if we still had them? Maybe finding a way to jail or civilly commit the plaintiff would be better than chipping away at free speech.
Andrew J. Lazarus (7d46f9) — 4/26/2007 @ 1:27 pmJustin,
Did you read the crap the woman was saying? According to the question presented, “pecuniary compensation would not afford adequate relief [to the plaintiff] in the event” the woman repeated her statements in the future.
So what would you have the plaintiff do? Just suck it up?
Paul (8cbb16) — 4/26/2007 @ 1:31 pmPaul — yep. Not every injury has an adequate remedy in the law. You take what the law can offer, but there are boundaries beyond which even a court should not venture.
That’s simply part of the cost of not living in a totalitarian state.
WLS (077d0d) — 4/26/2007 @ 2:39 pmSo, Justine, if a judgment-proof defendant trailed you around town with a sign that said that you were a racist, child-molesting, serial axe-murderer, you could sue them for redress of past speech (amounting to nothing), but could not prevent them from showing up with their sign tomorrow? (Note that an injunction making them keep their distance would be an effective suppression of their speech, so would be, of course, refused.)
And all of this just because at some time in the future their claim that you were a racist, child-molesting, serial axe-murderer MIGHT become true?
Kevin Murphy (805c5b) — 4/26/2007 @ 3:04 pmsorry. Justin. Justine is someone else.
Kevin Murphy (805c5b) — 4/26/2007 @ 3:05 pmFurther, as Baxter’s concurrence points out, if the enjoined statements prove true, California law allows a showing of truth as a complete defense against enforcement of the injunction. The enjoinee does not have to ask a court for prior permission.
Given that, there is no prior restraint to anything but a repetition of libelous falsehood.
Kevin Murphy (805c5b) — 4/26/2007 @ 3:14 pmI would have also joined a claim to abate a public and private nuisance seeking to have her house torn down since she was using it as a base for her activities.
nk (49aa3f) — 4/26/2007 @ 3:36 pmYou guys all suck big dick.
Sosumi.
Dan Collins (1e2e08) — 4/26/2007 @ 3:43 pmWLS at 3:
You present us with a false dichotomy. Did the California Supreme Court give rise today to a totalitarian state?
Paul (639638) — 4/26/2007 @ 4:03 pmJustin, I assume you object to all protective orders and restraining orders?
kishnevi (a117ab) — 4/26/2007 @ 4:18 pmThe only difference between a protective order in a domestic violence case and this injunction is that no one gets killed if it’s violated.
Paul at 9 —
My view would be similar to Patterico’s — once you’ve given a governmental entity the power to issue a permanent injunction on speech, you have moved the needle in the direction of a totalitarian state.
Does this fact alone signal the existence of a totalitarian state? Of course not.
Is the willingness of the Court to sanction this remedy — where the enforcement mechanism is a contempt citation enforced by jail time — suggestive of a libertarian or authoritarian approach to governing?
WLS (077d0d) — 4/26/2007 @ 4:31 pmWLS–Maybe it’s my imagination, but I seem to remember something about every right has its remedy.
kishnevi (db1823) — 4/26/2007 @ 6:48 pmAntiquated English nonsense, no doubt.
Paul –
Re: # 2. WLS pretty much sums up my own repsonse in # 3. The decision does not give rise to a totalitarian state. Just as upholding a libel claim against the President wouldn’t give rise to such a state – but it would be a severe body blow to the Constitution, which is what we have indeed witnessed here.
Justin Levine (d1f32a) — 4/27/2007 @ 12:43 amKevin Murphy –
Re # 4. You must be joking, right? Of course I (and the restaurant in question) should be able to get an injunction that forces the woman to keep her distance. A remedy that prevents the woman from picketing in front of the restaurant door is entirely valid in light of the past offense. That has nothing to do with a prior restraint of pure speech (which you seemingly endorse along with the majority of the court).
The time/place/manner question in entirely seperate from the core speech question. I can only conclude from your comment that you fail to understand my point completely. Let’s say that evidence exists that the woman repeated the comment to a single close friend in Africa while visiting her there. Upon her return to California, I take it that you believe that she should be hauled into court again and punished without the need for another trial proving damages since this has already been litigated?? That strikes me as insane. Yet that is what you must believe if you adhere to the majority view in this case.
Justin Levine (d1f32a) — 4/27/2007 @ 12:52 amKevin Murphy –
Re: # 6. I am again flummoxed by your comment. Please re-read the quote that I provided from the dissent. If a person has to go to court at all in order to prove the truth of what they assert – the very act of having to go to court is an act of having to “ask permission” from it. It merely confirms that the permission will only be “granted” once the turth is proven to the court. So once again, to quote the judge, “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.” Simply because a court will grant permission to speak upon determining the truth of a statement does not therefore mean that (in your words) “the enjoinee does not have to ask a court for prior permission.” Of course she does! That’s what going to court in the first place IS – asking permission.
As you say, “there is no prior restraint to anything but a repetition of libelous falsehood.” True. But you refuse to acknowledge the vey essence of my argument. If indeed “there is no prior restraint to anything but a repetition of libelous falsehood”, then wouldn’t the court be justified in restraining you and me from saying the exact same phrase even though we were not part of the original litigation? After all, you and I repeating the same statement is just as libelous and false as when the original defendant stated it. Do you argue that we shouldn’t be afforded a seperate trial after we say such things? Should the court be able to punish us automatically for saying such statements since they are part of the defendant’s injunction? If you feel that we should deserve a seperate trial for making such statements, then you have alreday conceded the critical part of my argument (even if you can’t bring yourself to admit it).
Justin Levine (d1f32a) — 4/27/2007 @ 1:03 amKishnevi:
Justice White, Lindsey v. Normet, 405 U.S. 56 (1972)
Steven Den Beste (99cfa1) — 4/27/2007 @ 4:48 amI have the right to bear arms but if I’ve demonstrated in the past that I use them in dangerous and destructive ways I can lose that right.
Which means that I may not have them available to legitimately defend myself at some time in the future. That’s my fault for being an ass in the first place.
That doesn’t mean we’re slipping towards Stalinist Russia.
arnold (f53dc2) — 4/27/2007 @ 6:29 amIf she lives on Balboa Island, she’s not judgement proof. I’d favor collecting what she has, which would force her to move into a different neighborhood.
Arnold Williams (d97d24) — 4/27/2007 @ 7:56 amArnold–
If true (that she has assets), this makes me wonder what her lawyer thinks he’s doing. Is he really saying to the court: feel free to cast my client out on the street, but defend her right to scream nonsense from the gutter? Considering that his client is arguably insane, I just have to question his representation of her interests.
But as I remember the back story, she no longer lives on the Island, and may no longer have assets in her name.
Kevin Murphy (0b2493) — 4/27/2007 @ 8:03 amAnother angle similar to arnold (#14):
Each citizen has the right to file a case in court, unless they have been declared a vexatious litigant. Then they no longer have the same right as others, and cannot file cases in court (unless given permission by the court). This is a reasonable remedy against further abuse of the courts and victims of false suits, not a slip towards Stalinist Russia.
This woman has abused her right of free speech to falsely harm others, so now her right of free speech has been adjusted as a legitimate remedy against further abuse.
If such a prohibition were placed against someone who had not previously abused their free speech rights, I would completely agree with the dissent.
If her improper claims had been at least somewhat arguable, the injunction probably would not have been granted. But according to the comments here, her claims were not at all arguably correct, therefore the injunction is appropriate.
Ken (245846) — 4/29/2007 @ 2:04 pm