Court May Enjoin Party From Repeating Defamation
A divided California Supreme Court found that a defendant can be enjoined from repeating certain statements after a trial court found the statements were defamatory.
The court concluded that the injunction was not prohibited by either the U.S. Constitution’s First Amendment or California’s state constitution. The majority opinion found that “an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment.”
The case involved a neighbor of a restaurant and bar in Newport Beach. Anne Lemen criticized the Village Inn and had contacted authorities numerous times to complain of excessive notice and the behavior of inebriated customers leaving the bar. At times, she made videotapes of the patrons and took their pictures. She called customers “drunks” and “whores” and told customers that the food was “shitty.” While collecting signatures for a petition opposing the Village Inn, she told neighbors there was child pornography and prostitution going on in the Inn and that it was selling drugs and alcohol to minors.
The restaurant sued Lemen seeking an injunction but not monetary damages. The trial court granted a permanent injunction barring her from contacting any of the Inn’s employees, making defamatory statements about the Inn and from videotaping within 25 feet of the premises. The appellate court struck down the injunction except for the provision on taping.
The California Supreme Court partially reversed the appellate court decision and ruled that the defendant could be enjoined from repeating the defamatory sttements. “Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful,” the majority wrote. In rejecting Lemen’s argument that the only remedy was monetary damages, the court said it “would mean that a defendant harmed by a continuing pattern of defamation would be required to bring a succession of lawsuits if an award of damages was insufficient to deter the defendant from continuing the tortious behavior.”
In a concurring opinion, one justice disagreed with the majority’s view that if the defamatory statements later became true, Lemen could seek a modification of the order. “[S]uch a defendant may not only move the court to modify or dissolve the injunction based on a change in circumstance or context, as the majority notes, but may also speak out, notwithstanding the injunction, and assert the present truth of those statements as a defense in any subsequent prosecution for violation of the injunction.”
Another justice wrote in a concurring and dissenting opinion that: “To forever gag the speaker-the remedy approved by the majority-goes beyond chilling speech; it freezes speech.” The justice debunked the majority’s finding that Lemen could seek a modification of the order if in the future her statements become true: “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.” For example, “the trial court enjoined Lemen from ever saying that plaintiff sells alcohol to minors at the Village Inn. If in the future the Village Inn were ever to serve alcohol to minors, and Lemen accurately reported that fact to a neighbor, Lemen could be charged with contempt of court for violating the trial court’s injunction, even though her statement was not defamatory (because true) and thus entitled to full constitutional protection,” the concurring and dissenting opinion stated.
Balboa Island Village Inn, Inc. v. Anne Lemen, Calif. S. Ct. S127904, issued April 26, 2007.