Patterico's Pontifications


Erwin Chemerinsky Manges To Fight The Good Fight On Libel Law (For A Change)

Filed under: Civil Liberties,Constitutional Law,General,Law — Justin Levine @ 10:43 am

[posted by Justin Levine]

Maybe its the “broken clock” theory, but law professor Eriwn Chemerinsky manages to be right on the money about the First Amendment when it comes to judicial remedies in defamation cases.

Need I remind you that he isn’t always right when it comes to this area of the law?

Nice to have you on the right side Professor! The notion of permanent gag orders as a remedy for libel claims is a dangerous notion that needs to be firmly struck down. If you give courts that power, they will surely abuse it and hand down orders that are ridiculously overbroad. Money damages and (in limited cases) physical restraining orders should be enough in these cases.

So says I! [Fun factoid: Balboa Island, where the current case stems from seems to have the highest per-capita-ratio of chocolate covered frozen banana stands than any other place I have visited. Has anyone else who has been there ever noticed that?]

[Update: The Appeals Court decision at issue can be found here. Interesting reading.]

[Update II: Oral arguments have been completed.

Justice Carlos R. Moreno asked if the order would prohibit Lemen from making the statements “to anyone, anywhere in the world.”

Russo, the restaurant’s owner, conceded that it would.

“Why, isn’t it overly broad?” asked Justice Ming W. Chin.

You go Mingy!

Justice Joyce L. Kennard noted that homes on Balboa Island cost millions of dollars, and she doubted that the Village Inn would have trouble collecting monetary damages if it could show that Lemen affected business.

“When we are dealing with a restraint on one of the most cherished constitutional provisions — protection of speech — we should only in extremely narrow circumstances allow permanent injunctions,” she said.

Sweet! It’s never a done deal until the decision is written, but I’m hopeful.

[posted by Justin Levine]

28 Responses to “Erwin Chemerinsky Manges To Fight The Good Fight On Libel Law (For A Change)”

  1. Chocolate covered frozen bananas? Is that a California thing?

    rightwingprof (5649f5)

  2. We need tort reform its time to put a end to these rediclous lawsuits its time for all those vultrures and sharks to get put on diets

    krazy kagu (8b6422)

  3. Assuming that the LA Times article today is accurate, I happen to agree with the “gag order.” I see no reason why a person, having been found to have repeatedly libeled and slandered a person, may not be prevented from continuing the libel and slander. Sure the order could be over broad, but then again it might not be. Calling it “prior restraint” implies that nothing came before.

    The lady in question comes off in the article as a severe nutjob who is set upon harrassing a local business for no good reason other than God told her to. Every last thing she has charged the business with was found to be complete fabrication, or simply incoherent madness.

    I guess this won’t end until the bar owner sues her again for libel and slander, this time asking for her property and life’s savings as damages and forcing her to a distant poorhouse. Another victory for free speech, I guess, but like everything Chemerinsky has ever been involved in, a sick one.

    Kevin Murphy (805c5b)

  4. She is a nutter. Totally bat-feces crazy. Howevah. I think that makes her the perfect spokewoman for free speech and the elimination of prior restraint. It’s easy to support someone’s right to speak when they are, you know, sane.

    I think the Inn’s argument that “well, it’s just too tough, your Honor, to try to calculate damages” is a lame, lame argument. The bar for prior restraint of speech needs to be very, very, very high. Higher than this lady, higher than McCain-Feingold, damn high.

    Jinnmabe (cc24db)

  5. Kevin –

    Here is a test for you. Are you saying that you think it would be proper for the court to order any other third party from calling the restaurant a “whorehouse”? After all, the claim has already been adjudicated to be objectively “false”, so the court would theoretically be justified in barring anybody from uttering those words in the future, no? If not, then perhaps this would hopefully illustrate why I disagree with your reasoning here.

    Correctly labelling this a “prior restraint” does not imply that no defamation occured before. It simply recognzies that defamation is something that can be extermely contextual in terms of the specific time and manner of wording. I call my fellow co-workers “whores” all the time. I have also called my company “Satan” at times. Surely you recognize that it is not libel in that instance – even if some of the precise words are the same. That’s the whole point – you will never know if an utterance qualifies as actionable libel or not until after it is uttered. The trial court’s remedy in this instance threatens to short-circuit that crucial process to determine it one way or the other.

    I think most rational people would agree that a restraining order against this person is in order (preventing her from coming near the establishment to speak to people as the come in and out of the place, etc.). But that is very different from a permanent injunction gag order, which would mean that this woman could be hauled into court for uttering similar statements to a friend while standing 1,000 miles away in Florida. You don’t see the problem here? Why choose a permanent injunction gag order when a less noxious remedy is available?

    I’m also curious as to what you think of the gag order in the David Schwimmer case that I linked to in the post. Do you think its proper for a court to prevent somebody from every criticizing David Schwimmer under any circumstances for the rest of his life (even if he admittedly libeled Schwimmer in the past)? Do you think its overbroad? If so, how should we protect ourselves against such court orders?

    I honestly don’t want to unfairly bog you down in this debate by peppering you with questions from a dozen different directions – but I’d also be curious to know what your reaction would be if (theoretically) the restaurant was seen distributing pot out its back door in the future. Should this lady still be prevented from claiming that the place “distributes illegal drugs”? After all, the injunction would still be in place. The future actions of the plaintiff would not affect the requirements of the court order. Again, each individual instance of alleged defamantion is exteremely contextual – thus the problem I have with permanent injunctions.

    I’ve included the link to the Appeals Court decision which also casts doubt on permanent injunctions as a libel remedy. I’d be curious to know your thoughts on the decision.

    Of course the woman is nut job. We can at least agree on that. But that does not justify permanent injunctions on speech when other remedies are available that would be perfectly adequate and less threatening to broader concerns of speech freedoms.

    Justin Levine (20f2b5)

  6. Why does the public hate lawyers?
    It is because of these “how many angels on the head-of-a-pin” arguements that go on without end.
    The system has no problem in declaring a litigant vexatious, and barring them from the court. Why not this gas-bag? Personally, without knowing all of the loops and hooks of this case, I think this woman has exceeded the bounds of civility, and deserves everything she gets – and probably a lot more.

    Another Drew (8018ee)

  7. Justin–

    Bar anyone? Well no, but only one person has probably called it that in the last year, and if other have, this moonbat has done it 10,000 times more often. The judgment is against her, the injunction is against her repeating those things that were found, when uttered by her, to be defamatory.

    I really don’t see your point at all.

    By the way, should one of those co-workers object to your calling them certain (presumably untrue) things, I rather suspect that they could get a court order preventing you from repeating such utterances. I’m pretty sure that, in California, they could get a court order preventing you from using certain words at all, even at home. Don’t agree with the last bit, of course, but there is CA Supreme precedent regarding racial slurs in the workplace.

    And yes, you can have over broad injunctions on any topic. Could the Browns get an injunction preventing OJ from getting within 1000 miles of them? Perhaps. Would it be overturned? One would hope. Would this mean that a more reasonable restriction of 100 feet would be unreasonable or unconstitutional? Hardly.

    Kevin Murphy (0b2493)

  8. Justin–

    As for the what-ifs, I’m not going to play. You are pointedly ignoring the IS-SO injustice, so why should I care about what happens if Martians land and only this lady is around to tell anyone?

    Kevin Murphy (0b2493)

  9. Why does the public hate lawyers?

    Maybe because they’re too lazy to learn what’s actually going on and therefore think lawyers are only making “how many angels on the head-of-a-pin” arguements[sic]”.

    Kevin: You seem pretty cavalier about the damage caused by over-broad injunctions. Also about this woman’s rights. Yeah, she’s crazy. She is a remarkably unattractive rallying point. So? There’s a thing called precedent, that should make everyone be a little more empathetic with this lady. You think it’s ok to judge the merit of someone’s speech, before they make it?

    Jinnmabe (517b2c)

  10. Justin,

    I agree that a permanent injunction is overbroad but is there any point where this woman’s speech becomes the equivalent of yelling “Fire” in a crowded theatre? It appears the restaurant owner was able to show he has suffered damages in lost revenues. If she put him completely out-of-business, do you still think the most he could seek would be a monetary remedy? In other words, is there ever a situation where harm to property requires more than money damages as a remedy (other than specific performance)? My offhand guess is that plaintiff’s best arguments would be:

    (1). There are legal justifications to curtail speech and plaintiff should try to fit this case into one of those areas; or

    (2). Defendant’s speech was apparently proven to be libelous/slanderous and furthermore was repetitive and cumulative in nature. Thus, perhaps plaintiff should focus on the cumulative, repetitive conduct – rather than the speech itself – by bringing a nuisance claim and requesting a tailored remedy based on nuisance law.

    It’s a slippery slope and I’m not sure I would want my arguments to be successful, but it’s interesting to think about. Thanks for the post.

    DRJ (e69ca7)

  11. Well, considering Aguilar v. Avis Rent A Car, 21 Cal.4th 121, it really shouldn’t be all that hard to win this one.

    Kevin Murphy (0b2493)

  12. “… a judge ordered Lemen to stop videotaping Toll’s customers and barred her from telling anyone that the bar makes sex videos, dabbles in child pornography, distributes illegal drugs, encourages lesbian activities, has mafia links, is a whorehouse or sells tainted food …”

    Beauharnais v. Illinois is still good law. If you take the view that criminal statutes are permanent injunctions against certain behaviors …. In any case, California has always been a “pioneer” in tort law (sarcasm).

    nk (956ea1)

  13. Call me an opponent of the 1st Amendment if you like, but this woman needs to be shut up. She is ruining the guy’s business. The professor might be legally right but, once again, he finds himself defending a scoundrel.

    Lou P. (87df48)

  14. Why are money damages not an adequate remedy here? If she is costing the guy money, shouldn’t she just be made to reimburse him? I don’t have a problem with defamation laws, but prior restraint should be a really high standard, not just “well, this lady’s crazy, let’s shut her up.”

    Jinnmabe (517b2c)

  15. NK,

    I’m displaying my ignorance and age (it’s been almost 30 years since I took the MultiState) but how many states still have criminal libel laws?

    DRJ (e69ca7)

  16. Aguilar vs. Avis Rent-a-Car (cited by Kevin Murphy in comment #11) is an interesting case. Prof. Chemerinsky may find himself in the unlikely position of agreeing with Justice Thomas’ dissent in that case.

    DRJ (e69ca7)

  17. DRJ,

    I don’t know. But Beauharnais has still not been overuled and six months for contempt of court is less of a restraint on the First Amendment than 364 days in jail.

    nk (956ea1)

  18. That’s a good point.

    DRJ (e69ca7)

  19. Having had a drink or two or a hundred at the VI, my personal bias is to favor the preemptive STFU for this nutter. Unfortunately, I’m liberal and, therefore, besieged with the need to act with principles.

    Justin’s right. Prior restraints suck and I’m not buying that the VI does not have a sufficient remedy through a damages claim. Jeebus, knowing the VI and the area, my gut tells me this is a moneymaker for the VI.

    And just to show my goodwill toward our SoCal hosts, I recommend you travel a lil further South and knock down a couple of Lapu Lapus at the Royal Hawaiian in Laguna Beach if you really want to get effed up in a funky setting.

    Macswain (5b310d)

  20. Kevin –

    With all do respect, I think you are misinterpreting the Aguilar case. It was only a plurality decision that had been narrowly construed (which is why the Appeals Court felt free to ignore it in this case). So suggesting that “it shouldn’t be hard to win” this case based on Aguilar is being a bit simplistic. Aguilar was a narrow plurality to prevent racial slurs in the workplace only after other unlawful non-speech related activity had been found (i.e., workplace discrimination). Even under these narrow circumstances, the ruling has come under serious criticism (see Justice Thomas’s comments that DRJ links to in comment # 16).

    The notion that you think that “I’m pretty sure that, in California, they could get a court order preventing you from using certain words at all, even at home” based on Aguilar demonstrates both a misunderstanding of Aguilar specifically, and a seemingly undue reverence for court power in general. A court could never do such a thing of course regarding my speech at home (thank goodness).

    I only asked you some hypotheticals in order to try and ascertain just how far you would support permanent injunctions against speech as a judicial remedy in libel cases. If you choose not to reveal that to me – that is your perogative of course. All of us have time constraints in life, and I know that I don’t have time to respond to every question put to me on the Internet, so I certainly won’t hold that against you. I’d still be curious to know what your reaction is to the David Schwimmer case (linked above), which is not a hypothetical, but a real case. Again, if you have time. I’d be genuinely curious to know in the interest of furthing this debate.

    Justin Levine (20f2b5)

  21. Justine–

    I don’t think that the prohibition on this lady is overbroad, and surely not arbitrary or capricious. Perhaps it could be narrowed to include only speaking to those currently within 200 feet of the establishment, but for all intents and purposes it is so limited. If it makes you happy it could say so.

    I do agree that there is a good possibility of monetary damages. However, the bar owner apparently did not want to leave this woman destitute, relying on an injunction as an adequate remedy. This remains a remedy. Which brings me to a new point…

    I really don’t think much of ANY lawyer who would use this case to overturn the injunction since the likely resulting outcome is the financial ruin of his incompetent client. Doesn’t seem very ethical to use a helpless client to further one’s separate ideology (which is DEMONSTRABLY not the client’s ideology). Nor is it in any way in her interest.

    Question: is this a violation of canon? Would this qualify as malpractice?

    Separately: Where do I draw the line? Well, I don’t much are for the protest exclusions around certain controversial business establishments, which are certainly far broader than this one, excluding all persons from specified (and arguably true) speech whether or not they have any history of abusive conduct.

    Does that help?

    Kevin Murphy (805c5b)

  22. Here’s a link to a 2003 University of Minnesota Journalism article that reviews the history of criminal libel laws. It catalogs the world’s history with criminal libel and suggests its primary use has been to suppress the expression of public opinion. IMO the concerns expressed in this article also apply to prior restraint issues.

    DRJ (e69ca7)

  23. Erwin may be right here, but he’s at Duke U. Is he one of the 88 professors who rushed to judgement “executing” the Lacrosse team? Did Prof. Chemerinsky condemn the flunking of students just because they were Lacrosse players? Has Erwin signed a apology to the Lacrosse team and coach for their shoddy if not unlawful treatment at the hands of the Duke Faculty and Administration?

    PCD (38f765)

  24. Erwin

    JMT (5ad760)

  25. Macswain et al – I want to preface my comments by saying that I am not an attorney nor am I attending law school. I apologize in advance for my naivety of the law and the passion that follows the right to free speech. However, it is short-sighted to think that this is a moneymaker for the VI. Do you know the burden of the legal costs for the VI to date? Legal fees have not been awarded to the VI. The VI is defending its right to peacefully run a business and serve customers without the employees, patrons and his family being taunted and harassed by Ann. This ‘historic case’ has cost this family time, money and a lot of sleepless nights.

    Assign monetary damages to Ann, there is an easy out, gee, you don’t need to be a lawyer to figure that one out. Let’s assign a monetary damage calculation of the percentage of business revenues OR let’s give her all the free speech she wants for a fee, say 10% of her gross paycheck OR every time she has yelled (and will continue to yell if she wins) “whorehouse, child pornographers, brothel, whorehouse madam, rats!, the meat is bought of a dirty car trunk! Mafia killers, hit men” she can be slapped with a $1,000 fine? I guess the VI (Victim) could videotape Ann’s right to ‘freedom of speech’ and continue to go back to court and get an award for monetary damages. If she is allowed to say whatever she wants, the emotional, physical and financial stress is continual, the damages will never end until Ann ends her religious ranting. All the money in the world is not going to cover the damage of someone’s reputation. Award money to the VI, Ann will never pay. Lien her house? Okay, when she passes on to her God ole mighty in 25 years, then the VI can collect. Garnish her wages?

    The questions are: how does the court provide protection from Ann’s destructive free speech rights? How does the court provide the right to operate a business free from verbal harassment? How can the courts make a ruling that will take the burden away from the Victim from continually suing Ann for false statements against the VI?

    The VI was never after the money, the VI wanted to run a historic restaurant in peace. Can the CA Supreme court provide that freedom to the VI?

    JMT (5ad760)

  26. I agree with JMT. Plaintiff may end up with a hollow victory even if he gets everything he requests. On a related note, I read that so far the Duke lacrosse players have incurred $3M in costs and attorneys’ fees. I don’t know if that’s true but I wouldn’t doubt it.

    DRJ (8b9d41)

  27. What a whacko!!!!!

    Bob Sacamano (9ea5f8)

  28. […] not know that Chemerinsky was a very public and out-spoken (and well-respected as fair even by the right) legal scholar?, and 2) What is a conservative billionaire doing funding a left-wing law […]

    Right Angles » Blog Archive » The Chemerinsky cluster, er, mistake (6463e8)

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