BALBOA ISLAND VILLAGE INN, INC v. LEMEN

Filed 4/26/07 (Reposted same date to reflect additional signatories to conc. opn. of Baxter, J., omitted by clerical error.)

IN THE SUPREME COURT OF CALIFORNIA

BALBOA ISLAND VILLAGE INN, INC., )

)

Plaintiff and Respondent, )

) S127904

v. )

) Ct.App. 4/3 G031636

ANNE LEMEN, )

) Orange County

Defendant and Appellant. ) Super. Ct. No. 01CC13243

__________________________________ )

Story Continued from Part II

The United States Supreme Courts decisions recognize that an injunction may not be used to prohibit speech that, because its precise content is not yet known, might be constitutionally protected. Thus, in Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, the high court upheld an injunction of written and printed matter found after due trial to be obscene (id. at p. 437) because the injunction studiously withholds restraint upon matters not already published and not yet found to be offensive (id. at p. 445, italics added).

When, as here, an injunction based on past oral statements found to be defamatory, and therefore unprotected by the First Amendment, restrains future speech that, because it has not yet occurred, has not been judicially determined to be unprotected, the high court has held the injunction to be an unconstitutional prior restraint. (Vance v. Universal Amusement Co., Inc. (1980) 445 U.S. 308, 311, 316; Near v. Minnesota, supra, 283 U.S. 697; see Alexander v. United States, supra, 509 U.S. at p. 550; Kingsley Books, Inc. v. Brown, supra, 354 U.S. at p. 445.) The threat of contempt of court proceedings, which may result in fines and incarceration, necessarily discourages or chills the exercise of free speech and may deter a person from speaking at all. The First Amendment does not permit banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 255.) A prior restraint does more than chill the exercise of free speech: If it can be said that a threat of criminal or civil sanctions after publication chills speech, prior restraint freezes it at least for the time. (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559.)

In response to plaintiffs argument that changed circumstances may in the future render true a statement that was in the past false, the majority requires Lemen to seek the trial courts permission before she speaks by moving to modify the injunction. (Maj. opn., ante, at p. 26.) Requiring a citizen to obtain government permission before speaking truthfully is the essence of censorship directly at odds with the chief purpose of the constitutional guarantee of free speech to prevent prior restraints. (Near v. Minnesota, supra, 283 U.S. at p. 713; Kingsley Books, Inc. v. Brown, supra, 354 U.S. at p. 445.)^[1]

Not only does the injunction against Lemens future speech offend the basic principles of the First Amendment, it also violates the First Amendment because it is unnecessary, as discussed below.

III

The injunction here is not necessary to protect any compelling state interest or any important public policy. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 165-166 (conc. opn. of Werdegar, J.) [compelling state interest in eradicating racial discrimination in workplace], id., at p. 180 (dis. opn. of Kennard, J.) [compelling state interest in eradicating invidious employment discrimination].) The injunction in this case serves no significant public interest, such as eliminating invidious racial discrimination in employment, preventing incitement of immediate violence, or protecting national security. Obviously, there is no compelling public or state interest in stopping Lemen from circulating a petition among her neighbors and making disparaging statements about the Village Inn. The injunction only protects plaintiffs purely private business interests.

Plaintiff has not shown that the injunction is necessary to serve even those private interests, because plaintiff has not demonstrated that monetary damages would be an inadequate remedy. Although plaintiff claimed it suffered a 20 percent loss in business revenue after Lemen circulated her petition among the residents of Balboa Island and orally disparaged the Village Inn, plaintiff did not seek any monetary damages from Lemen. The only relief plaintiff sought was a permanent injunction. Entitlement to such relief, however, requires a showing that the defendants wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.) Here, neither plaintiff nor the majority claims that such a showing has been made. The majority is wrong in asserting (maj. opn., ante, at p. 22) that an injunction may issue without a showing of irreparable injurythat is, that damages are inadequate. The  extraordinary remedy of injunction cannot be invoked without showing the likelihood of irreparable harm. (Intel Corp. v. Hamidi, supra, at p. 1352.)

The majority relieves plaintiff of its obligation to establish that damages are not an adequate remedy, by asserting that a defendant harmed by defamation could be required to bring a series of lawsuits or that damages would not deter a defendant who is too poor to pay damages or so wealthy as to be willing to pay any resulting judgments. (Maj. opn., ante, at p. 22.) I disagree.

The majority points to nothing in this record that would support the conclusion that, if damages had been awarded, Lemen would again have defamed plaintiff, requiring plaintiff to bring another lawsuit. In the absence of substantial evidence, or any evidence, relevant to this issue, it cannot be assumed that an award of actual damages would not deter Lemen. To the contrary, compensatory damages awards, when added to the high costs of defending lawsuits and the risk of future punitive damage awards, are powerful deterrents.

Nor is there any basis for concluding that Lemen is either too poor to pay damages or so rich that a damage award would not serve as a deterrent. From her ownership of Balboa Island property we may infer that Lemen is not too poor to pay a damage award, and nothing in the appellate record suggests she is so wealthy that a compensatory damage award would not deter her from making defamatory statements about the Village Inn. In addition, so far as I am aware neither this nor any other court has ever held that a defendants wealth can justify a prior restraint on the constitutional right to free speech. (See Willing v. Mazzocone (Pa. 1978) 393 A.2d 1155, 1158 [In Pennsylvania the insolvency of a defendant does not create a situation where there is no adequate remedy at law].)

Thus, the injunction here violates the First Amendment to the United States Constitutions guarantee of free speech for a second reasonbecause it is unnecessary. Its invalidity is even clearer under the free speech provisions of the California Constitution, provisions that are more stringent than even those of the federal Constitution.

IV

The California Constitutions guarantee of the right to free speech and press is more protective and inclusive than that contained in the First Amendment to the federal Constitution. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 490-493; Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.) Our constitutional guarantee states: Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press. (Cal. Const., art. I,  2, subd. (a).)

This court has long recognized that under our state Constitutions free speech guarantee (Cal. Const., art. I,  2, subd. (a)) a person may be held responsible in damages for what the person says, writes, or publishes but cannot be censored by a prior restraint. The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held accountable to the law for what he speaks, what he writes, and what he publishes. It is patent that this right to speak, write, and publish, cannot be abused until it is exercised, and before it is exercised there can be no responsibility. The purpose of this provision of the constitution was the abolishment of censorship, and for courts to act as censors is directly violative of that purpose. (Dailey v. Superior Court (1896) 112 Cal. 94, 97.)

The majority errs in claiming that this courts interpretation of the state constitutional free speech guarantee in Dailey v. Superior Court, supra, 112 Cal. 94, is no longer controlling. (Maj. opn., ante, at p. 24.) Misplaced is the majoritys reliance on this courts decision in People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42 (Busch) and on the plurality opinion in Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121 (plur. opn. of George, C.J.). Busch concerned an injunction to prohibit the exhibition of particular obscene magazines and films (Busch, supra, at pp. 48-49), not an injunction prohibiting future speech that might or might not be defamatory. Moreover, the majority in Busch did not consider, apply, or even cite our state constitutional provision. With respect to the Aguilar plurality opinion, it made the same fundamental mistakes the majority repeats here. Because it was only a plurality opinion, it lacks authority as precedent.

The injunction at issue here (both as entered by the trial court and as it will be after the majoritys required modifications are made) violates our state Constitutions free speech guarantee as authoritatively construed in Dailey v. Superior Court, supra, 112 Cal. 94. As I have explained, the injunction is a prior restraint on future speech; it is overbroad in prohibiting nondefamatory future speech; and it is unnecessary in the absence of proof that compensatory damages would not be an adequate remedy. Moreover, the majority does not cure, but only exacerbates, the injunctions unconstitutional features by requiring the trial court to act as a censor of Lemens future speech. Because our state Constitution prohibits prior restraints and government censorship, the injunction also violates the California Constitution.

I would affirm the judgment of the Court of Appeal.

KENNARD, J.

CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

For reasons that will appear, I concur in the disposition. However, finding the majoritys analysis flawed, I otherwise dissent.

A little more than seven years ago, a bare majority of this court sail[ed] into uncharted First Amendment waters (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 148 (conc. opn. of Werdegar, J.) (Aguilar)) and held that despite the free speech guarantee in the First Amendment to the United States Constitution, an injunction prohibiting a person from uttering certain words or phrases in the future was permissible. In that case, the defendant had been found guilty of employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq.) for directing racially derogatory comments at his Latino employees at their workplace. A plurality of three justices found the injunction in Aguilar permissible under the First Amendment because the jury, having found a FEHA violation, necessarily found the defendants racial comments were unprotected speech. The plurality reasoned: [T]he injunction at issue is not an invalid prior restraint, because the order was issued only after the jury determined that defendant[] had engaged in employment discrimination, and the order simply precluded defendant[] from continuing [his] unlawful activity. (Aguilar, at p. 138; see also id. at p. 140 [once a court has found that a specific pattern of speech is unlawful, an injunctive order . . . is not a prohibited prior restraint of speech]; id. at p. 147 [because the speech had been judicially determined to violate the FEHA, the injunction does not constitute an invalid prior restraint of speech].)

Three justices of this court dissented, each writing separate opinions; all concluded that notwithstanding the jurys decision finding a FEHA violation, the trial courts injunction constituted an impermissible prior restraint on speech in violation of the defendants First Amendment rights. The late Justice Mosk concluded the injunction fail[ed] to overcome the heavy presumption against the constitutional validity of prior restraints on speech. (Aguilar, supra, 21 Cal.4th at p. 173 (dis. opn. of Mosk, J.).) Justice Kennard opined that the high courts decisions do not support the broad proposition that viewpoint-based remedial injunctions are exempt from strict First Amendment scrutiny simply because they are issued against a person who has once been found to have engaged in speech that produced or contributed to a hostile work environment. (Id. at p. 186 (dis. opn. of Kennard, J.).) Justice Brown likewise rejected the pluralitys rationale that an adjudication of a FEHA violation justified imposition of the injunction on future speech. (Id. at p. 193 (dis. opn. of Brown, J.).)

I, too, wrote separately in Aguilar, but a concurrence, not a dissent. Although I found the injunction to be constitutionally permissible in the particular circumstances, I did not join the pluralitys analysis elevating the jurys FEHA verdict into a constitutional license to enjoin the defendants future speech. Instead, recognizing that the case posed two constitutionally protected interests in tension with each otherthe defendants right to free speech versus the plaintiffs right to be free of racial discriminationI concluded that [g]iven the constellation of factors present in this case, no clear reason appears why [the defendants] free speech rights should predominate over the states and the individual plaintiffs similarly weighty antidiscrimination interests. [] Balancing [the defendants] First Amendment free speech rights with the equally weighty right of [the] plaintiffs to be let alone at their jobsite, free of racial discrimination, I find the several factors coalescing in this casespeech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speakersupport the conclusion that the injunction, if sufficiently narrowed on remand to apply to the workplace only, will pass constitutional muster. (Aguilar, supra, 21 Cal.4th at p. 166 (conc. opn. of Werdegar, J.).)

Because I did not join the plurality opinion in Aguilar, only three justices of this court agreed with the proposition that a jury determination a persons speech was unlawful (in that case, that the defendants speech created a hostile work environment in violation of FEHA), by itself, permitted a court to enjoin that person from engaging in similar speech in the future. Instead, a majority of this courtmyself, along with the three Aguilar dissentersexpressly rejected that reasoning. Accordingly, the Court of Appeal below, reading the plurality opinion and my concurring opinion together, accurately characterized Aguilar as support[ing] the principle that a content-based injunction restraining speech is constitutionally valid if the speech has been adjudicated to violate a specific statutory scheme expressing a compelling state interest justifying a prior restraint on speech, or when necessary to protect a right equal in stature to the right of free speech secured by the First Amendment to the United States Constitution.

Unlike in Aguilar, where we were called on to balance countervailing constitutional concerns with the demands of the First Amendment free speech guarantee, the present case involves a garden-variety defamation under state law. Defendant was shown in a court trial to have made false and defamatory statements to several people, including plaintiffs customers, regarding activities occurring in plaintiffs restaurant. She also made false and injurious comments about the cleanliness and wholesomeness of the food served therein. While our Legislature reasonably has determined such utterances are inimical to the social order and justify a civil remedy,^[2]that state interest is not one of federal constitutional dimension and must surrender to the greater constitutional interest as expressed in the First Amendment. Unlike in Aguilar, where the plaintiffs plausibly could argue the Constitution protected their interests as well as the defendants, plaintiff in this case cannot wield the Constitution as its sword.

Nor are any of the other considerations that rendered Aguilar an unusual case present here. Thus, although the speech in Aguilar occurred at the workplace where special considerations . . . sometimes permit greater restrictions on First Amendment rights (Aguilar, supra, 21 Cal.4th at p. 156 (conc. opn. of Werdegar, J.)), defendant Anne Lemens speech in this case occurred largely in and around the streets and sidewalks near the restaurant, places that are presumptively open to free speech. (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 679.) Nor do plaintiff or its customers comprise a captive audience, a circumstance that might justify greater restrictions on a speakers freedom of expression. (Aguilar, at p. 159 (conc. opn. of Werdegar, J.); Frisby v. Schultz (1988) 487 U.S. 474, 487 [The First Amendment permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech].) Plaintiff does not allege defendant uttered her defamatory statements while inside the restaurant, where diners could plausibly claim to be a captive audience. Finally, the injunction prohibiting Lemen from repeating her defamatory statements is not, as in Aguilar, akin to a time, place and manner restriction (Aguilar, at p. 162 (conc. opn. of Werdegar, J.); Madsen v. Womens Health Center, Inc. (1994) 512 U.S. 753), but is more like a gag order, judicially enforced.

An injunction such as the one imposed in this case, of course, constitutes a prior restraint on speech. (Alexander v. United States (1993) 509 U.S. 544, 550 [permanent injunctions . . . are classic examples of prior restraints].) In the absence of a compelling constitutional interest supporting plaintiffs interests as well as the unusual aggregation of other factors present in Aguilar, supra, 21 Cal.4th 121, the traditional First Amendment protection against prior restraints on speech should apply in full. Any system of prior restraint . . . comes to this Court bearing a heavy presumption against its constitutional validity. Bantam Books, Inc. v. Sullivan, 372 U. S. [58], at 70 [(1963)]; New York Times Co. v. United States, 403 U. S. [713], at 714 [(1971)]; [citations]. The presumption against prior restraints is heavierand the degree of protection broaderthan that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558-559.)

It has long been the rule that [a] court cannot enjoin the publication of a libel. (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 446.) As the high court explained more than a century ago: If the publications in the newspapers are false and injurious, he can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the litigation properly belonging to courts of law. (Francis v. Flinn (1886) 118 U.S. 385, 389; see also Metropolitan Opera Assn, Inc. v. Local 100 (2d Cir. 2001) 239 F.3d 172, 177 [courts have long held that equity will not enjoin a libel].) As the Court of Appeal below explained: This rule rests in large part on the principle that injunctions are limited to rights that are without an adequate remedy at law, and because ordinarily libels may be remedied by damages, equity will not enjoin a libel absent extraordinary circumstances.  This rule is set forth in this states statutory law; Code of Civil Procedure section 526, subdivision (a)(4) provides: An injunction may be granted in the following cases: [] . . . [] (4) When pecuniary compensation would not afford adequate relief.

The majority provides an interesting historical explanation for the long-standing rule that equity will not enjoin defamation. (Maj. opn., ante, at pp. 19-20.) But though law and equity courts presided over separate domains hundreds of years ago in England, and our states superior courts have more comprehensive jurisdiction today, I do not read the majority opinion as advocating, based on this historical analysis, the wholesale abandonment of the rule against enjoining defamation. More importantly, irrespective of whether modern courts have jurisdiction to enjoin a persons future statements, in exercising that jurisdiction they must factor in the persons First Amendment right to free speech, a concern not applicable in the 18th and 19th century English Court of Common Pleas or in our state courts before 1925. (See Gitlow v. New York (1925) 268 U.S. 652, 666 [applying the First Amendment to the states]; Aguilar, supra, 21 Cal.4th at p. 150 (conc. opn. of Werdegar, J.).)

The majority concedes the issue we decide today is of first impression, noting that [t]he United States Supreme Court has never addressed the precise question before uswhether an injunction prohibiting the repetition of statements found at trial to be defamatory violates the First Amendment. (Maj. opn., ante, at pp. 11-12.)^[3] In this legal vacuum, the majority resorts to reasoning by analogy, citing situations in which the United States Supreme Court in resolving related questions has approved injunctions on a persons future speech. (Maj. opn., ante, at p. 12.) As I explain, the analogies are flawed and the legal authority cited by the majority does not authorize a court to impose an injunction against future defamation.

The majority first analogizes to cases involving speech found to be obscene. (Maj. opn., ante, at pp. 12-13.) Those familiar with this area of the law know the high court has traveled a twisting, rocky road during the last 50 years in its attempt to enunciate both a coherent explanation for, and the proper limits on, government suppression of obscene and sexually explicit speech. (See, e.g., Roth v. United States (1957) 354 U.S. 476 [obscenity unprotected by First Amendment if utterly without redeeming social importance]; Jacobellis v. State of Ohio (1964) 378 U.S. 184, 197 (conc. opn. of Stewart, J.) [conceding he perhaps . . . could never succeed in intelligibly defining obscenity, but opining that I know it when I see it]; Miller v. California (1973) 413 U.S. 15 [partially overruling Roth and establishing the modern test for obscenity]; Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [invalidating portions of the Communications Decency Act of 1996, which attempted to regulate obscenity on the Internet].)

The majority accurately observes the United States Supreme Court has permitted the issuance of injunctions prohibiting defendants from selling books, magazines and films adjudged obscene. (Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49; Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436.) The majority reads these precedents for all they could mean, reasoning that, as with obscenity, once a trier of fact has decided that some particular speech falls within a category unprotected by the First Amendment (here, defendants defamatory comments), an injunction is permissible to prohibit future utterances. But Paris Adult Theatre I and Kingsley Books have never been read to authorize such broad limits on speech outside the category of obscene speech. For example, in Snepp v. United States (1980) 444 U.S. 507, the high court considered an authors breach of an agreement with the Central Intelligence Agency to submit his book to the agency for prepublication clearance. In approving equitable relief as a remedy for the breach (in that case a constructive trust on book sale profits rather than an injunction), the high court did not cite any obscenity case in support. The majority today cites no United States Supreme Court case in which Paris Adult Theatre I or Kingsley Books is cited as authority justifying an injunction on future speech outside the area of obscenity.

Moreover, the high courts approval of injunctive relief for obscenity must be viewed in the larger context, in which it has permitted other forms of government regulation of obscene and sexually explicit speech that would likely be found unconstitutional if applied to other forms of speech. For example, the high court has held it permissible for a state to require all films, subject to certain limitations, be submitted to a censor board before exhibition. (Freedman v. Maryland (1965) 380 U.S. 51; see also Alexander v. United States, supra, 509 U.S. 544 [authorizing seizure and destruction of business assets, including nonobscene material, following conviction for selling obscene material]; Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 [upholding government zoning to regulate secondary effects of sexually explicit, though not necessarily obscene, speech]; Heller v. New York (1973) 413 U.S. 483 [authorizing seizure of a copy of a film even before judicial determination the film is obscene].) We need not here decide whether the courts approval of these remedial measures aimed at curbing obscene speech is a function of the unique history of the regulation of obscene speech or the somewhat unique commercial and financial incentives^[4]connected to such speech. It is enough to conclude that cases addressing the problem of obscene speech are not broadly applicable to all other forms of unprotected speech and thus provide no direct analogy to the question of the permissible remedies for defamation. Accordingly, the mere fact a court may enjoin the sale of a book or film found obscene does not, without more, provide persuasive authority for concluding a court may also enjoin a person from speaking, in the future, words or phrases found in the past to have been defamatory.

The majority also cites Pittsburgh Press Co. v. Human Rel. Commn (1973) 413 U.S. 376 in support. (Maj. opn., ante, at p. 13.) But that case posed a plaintiff asserting a counterbalancing constitutional claim (sex discrimination) against a defendant claiming the right to free speech. As the Court of Appeal below recognized, my concurring opinion in Aguilar is consistent with Pittsburgh Press, which concluded the challenged advertising lost any First Amendment protection because it violated a municipal ordinance prohibiting sex-based discrimination. Because plaintiff here asserts no such constitutional claim in support, Pittsburgh Press is not at all analogous to the present case and provides no persuasive support for the requested injunction here.

In the absence of any of the unusual factors present in Aguilar, supra, 21 Cal.4th 121, or any compelling United States Supreme Court authority, it is inescapable that the injunction here is an impermissible prior restraint on defendants speech. Although prior restraints on speech are not categorically prohibited in all cases (see, e.g., DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 890 (conc. opn. of Werdegar, J.) [First Amendment does not necessarily preclude injunctive relief in trade secret cases]), the party moving for such relief bears a heavy burden. (See New York Times Co. v. United States, supra, 403 U.S. 713 [the Pentagon Papers case].) Plaintiff does not carry this burden here.

Although plaintiff, a business operating a restaurant, claims it lost money as a result of defendants defamatory comments, it has not shown why it cannot be made whole by damages. (Code Civ. Proc.,  526, subd. (a)(4).) If plaintiff lost money, customers or goodwill due to defendants defamatory comments, she can be made to pay damages. If, after paying damages, defendant continues to utter defamatory statements and it is proved she did so intentionally and maliciously, the law provides for punitive damages. Defendant has not been shown to be either so rich or so poor that the threat of monetary damages would be an insufficient incentive for her to stop repeating her illegal conduct. Under these circumstances, I am unpersuaded plaintiff has carried its heavy burden of demonstrating the courts may constitutionally enjoin defendants future speech.

The Court of Appeal below found the injunction on defendants future speech was an unconstitutional prior restraint, largely applying my concurring opinion in Aguilar, supra, 21 Cal.4th 121, 147. The majority today finds the injunction permissible in theory but overbroad as written, and therefore affirms the Court of Appeals judgment reversing the injunction in part.^[5] Because, like the Court of Appeal, I find the injunction to be an impermissible prior restraint, I concur in the majoritys disposition. But because, for the reasons stated, I disagree with the majoritys reasoning, I dissent.

WERDEGAR, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Balboa Island Village Inn., Inc. v. Lemen

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 121 Cal.App.4th 583

Rehearing Granted

__________________________________________________________________________________

Opinion No. S127904

Date Filed: April 26, 2007

__________________________________________________________________________________

Court: Superior

County: Orange

Judge: Gerald G. Johnston

__________________________________________________________________________________

Attorneys for Appellant:

D. Michael Bush; Erwin Chemerinsky; Sheppard Mullin Richter & Hampton, Gary L. Bostwick and Jean-Paul Jassy for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Dubia, Erickson, Tenerelli & Russo, Law Offices of J. Scott Russo and J. Scott Russo for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Erwin Chemerinsky

Duke University Law School

Science Drive and Towerview Road

Durham, NC 27708

(919) 613-7173

J. Scott Russo

Law Offices of J. Scott Russo

2 Park Plaza, Suite 300

Irvine, CA 92614-8513

(949) 752-7106

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

^[1] The concurring opinion asserts that, because California permits collateral attacks on the constitutionality of injunctions, the majoritys decision does not require Lemen to obtain government permission before speaking truthfully. (Conc. opn. of Baxter, J., ante, at p. 1.) This assertion implicitly recognizes that the injunction is unconstitutionally overbroad because it enjoins speech whether or not it is truthful. What it fails to recognize, however, is the powerfully chilling effect of an injunction restricting speech. To speak truthfully in violation of the injunction, Lemen must be willing to be cited for contempt, hauled into court, and face possible incarceration and fines. How many will be bold enough to run those risks? Realistically, the majoritys decision does require persons like Lemen to obtain government permission before speaking truthfully.

^[2] Thus, Civil Code sections 44 to 46 set forth the civil torts of defamation and libel under state law.

^[3] The high court recently granted certiorari in a case to decide [w]hether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment. (Tory v. Cochran (2005) 544 U.S. 734, 736.) The court vacated and remanded the case without resolving the First Amendment issue because the plaintiff passed away during the pendency of the appeal. (Id. at pp. 738-739.)

^[4] See, e.g., New York v. Ferber (1982) 458 U.S. 747, 756, 761 (States are entitled to greater leeway in the regulation of pornographic depictions of children in part because the advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation (italics added)). (Cf. Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 574 [One of the important differences between trade libel on the one hand and defamation on the other, is said to be that because of the economic interest involved, the disparagement of quality may in a proper case be enjoined, whereas personal defamation can not [sic].  (Italics added.)].)

^[5] The portion of the injunction restraining defendant from videotaping plaintiffs business is not addressed by the majority. I therefore also express no opinion on it.