California Supreme Court Holds that Defamatory Speech May Be Enjoined After Trial
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.