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California
Supreme Court Holds that Defamatory Speech May Be Enjoined After
Trial
By
Robyn
Aronson
[April 2007]
On April 26, 2007, a fractured California Supreme Court determined
that a defendant may be permanently enjoined from repeating statements
that have been adjudicated at trial to be defamatory.
The case, Balboa Island Village Inn, Inc. v. Lemen, S127904,
involved a protracted dispute between a local tavern and a neighbor
unhappy with the noise and behavior of the tavern’s patrons.
The neighbor harassed the tavern’s customers and employees,
and made defamatory statements to third parties’ about the
tavern, in a campaign to disrupt the tavern’s business. The
tavern responded by filing claims of nuisance, defamation, and interference
with business relations against the neighbor. The complaint did
not seek any damages; instead, it sought to enjoin the neighbor
from repeating her defamatory statements.
Following a court trial in which the defendant was found to have
repeatedly defamed the tavern, the trial court issued an injunction
that, in relevant part, barred the defendant from making certain
categories of defamatory statements, i.e., statements to the effect
that the tavern sold alcohol to minors and served tainted food.
The Court of Appeals overturned this aspect of the injunction, stating
that it was an unconstitutional prior restraint on speech.
In a decision authored by Justice Carlos R. Moreno, the Supreme
Court affirmed that the trial court injunction was unconstitutional
as written, but only insofar as it was slightly overbroad. Recognizing
that the United States Supreme Court “has never addressed
the precise question” of “whether an injunction prohibiting
the repetition of statements found at trial to be defamatory violates
the First Amendment,” the Court found that such an injunction
did not violate any constitutional rights. The Court observed, “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 Court distinguished its conclusion from Near v. Minnesota,
283 U.S. 697 (1931), and similar decisions by stating that “preventing
a person from speaking or publishing something that, allegedly,
would constitute a libel if spoken or published is far different
from issuing a post-trial injunction after a statement
that already has been uttered has been found to constitute defamation.”
Consequently, following trial, “the court may issue an injunction
prohibiting the defendant from repeating the statements determined
to be defamatory.” The Court’s majority opinion analyzed
the history of prior restraints rooted in English common law and
observed that its conclusion was supported by decisions of the Supreme
Courts of Ohio, Georgia, Minnesota, and Nebraska.
One concurring opinion and two opinions concurring in part and
dissenting in part were filed. All of the opinions recognized that
the permanent injunction may end up prohibiting protected speech.
For example, even if it were presently defamatory to state that
the tavern sells alcohol to minors, if the tavern were to sell alcohol
to minors in the future, the defendant would be barred from stating
this true, non-defamatory fact unless she first petitioned the court
for a modification of the injunction. As Justice Joyce L. Kennard
observed, “[t]o require a judge’s permission before
defendant may speak truthfully is the essence of government censorship
of speech.” Kennard also pointed out that the injunction was
impermissibly vague – for example, if the defendant told someone
that she did not like the food at the tavern because it was “bad,”
would that violate the injunction against describing the food as
“tainted?”
The majority opinion in Balboa Island means that under
California law, speech that has been finally adjudicated to be defamatory
may be enjoined. Counsel for the defendant are considering a petition
to the U.S. Supreme Court.
For
more information, please contact:
This advisory
is a publication of the media group of Davis Wright Tremaine LLP.
Our purpose in publishing this advisory is to inform our clients
and friends of recent legal developments. It is not intended, nor
should it be used, as a substitute for specific legal advice as
legal counsel may only be given in response to inquiries regarding
particular situations.
Copyright
© 2007, Davis Wright Tremaine LLP.
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