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., )
)
v. )
Defendant and Appellant. ) Super. Ct. No. 01CC13243
__________________________________ )
Following a court trial in which defendant Anne Lemen was found to have repeatedly defamed plaintiff Balboa Island Village Inn, Inc., the superior court issued a permanent injunction prohibiting defendant from, among other things, repeating certain defamatory statements about plaintiff. For the reasons that follow, we hold that the injunction is overly broad, but that defendants right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory.
Facts
Aric Toll owns and manages the Balboa Island Village Inn, a restaurant and bar located on Balboa Island in Newport Beach. He bought it on November 30, 2000, but the Village Inn has been operating at that location for more than half a century.
In 1989, defendant Anne Lemen purchased the Island Cottage, which lies across an alley from the Village Inn. She lives there part of the time and rents the cottage as a vacation home part of the time. Lemen is a vocal critic of the Village Inn and has contacted the authorities numerous times to complain of excessive noise and the behavior of inebriated customers leaving the bar. In an effort to document these abuses, Lemen videotaped the Inn approximately 50 times. According to Lemen, she made these videotapes while on her own property, although she acknowledged that, on one occasion, she parked her Volkswagen bus across from the Inn and videotaped from there.
The Village Inn introduced evidence that Lemens actions were far more intrusive. For more than two years, Lemen parked across from the Inn at least one day each weekend and made videotapes for hours at a time. Customers often asked Lemen not to videotape them as they entered or left the building. Numerous times, she followed customers to or from their cars while videotaping them. She took many flash photographs through the windows of the Inn a couple of days each week for a year, upsetting the customers. She called customers drunks and whores. She told customers entering the Inn, I dont know why you would be going in there. The food is shitty. She approached potential customers outside the Inn more than 100 times, causing many to turn away. One time, she stopped her vehicle in front of the Village Inn and sounded her horn for five seconds.
Lemen had several encounters with employees of the Village Inn. She told bartender Ewa Cook that Cook worked for Satan, was Satans wife, and was going to have Satans children. She asked musician Arturo Perez if he had a green card and asked whether he knew there were illegal aliens working at the Inn. Lemen referred to Theresa Toll, the owners wife, as Madam Whore and said, in the presence of her tenant, Larry Wilson: Everyone on the island knows youre a whore. Three times, Lemen took photographs of cook Felipe Anaya and other employees while they were changing clothes in the kitchen.
Lemen collected 100 signatures on a petition opposing the Village Inn. As she did so, she told neighbors that there was child pornography and prostitution going on in the Inn, and that the Village Inn was selling drugs and was selling alcohol to minors. She said that sex videos were being filmed inside the Village Inn, that it was involved with the Mafia, that it encouraged lesbian activity, and that the Inn stayed open until 6:00 a.m. When defendant began collecting signatures door to door and making these statements, the Village Inns sales dropped more than 20 percent.
On October 16, 2001, the Village Inn filed a civil complaint that, as amended, alleged causes of action for nuisance, defamation, and interference with business and sought injunctive relief against defendant. Following a court trial, the superior court entered judgment for plaintiff on October 11, 2002 granting a permanent injunction. Paragraph 4 of the injunction states:
[T]he court orders that Lemen, her agents, all persons acting on her behalf or purporting to act on her behalf and all other persons in active concert and participation with her, be and hereby are, permanently enjoined from engaging in or performing directly or indirectly, any of the following acts:
A. Defendant is prohibited from initiating contact with individuals known to Defendant to be employees of Plaintiff. Any complaints Defendant has regarding Plaintiff or Plaintiffs business must be communicated to a member or members of Plaintiffs management, who will be identified by Plaintiff for Defendant and for which Plaintiff will provide Defendant a phone number by which Defendant can timely and easily communicate any problems related to Plaintiffs operation.
B. Defendant is prohibited from making the following defamatory statements about Plaintiff to third persons: Plaintiff sells alcohol to minors; Plaintiff stays open until 6:00 a.m.; Plaintiff makes sex videos; Plaintiff is involved in child pornography; Plaintiff distributes illegal drugs; Plaintiff has Mafia connections; Plaintiff encourages lesbian activities; Plaintiff participates in prostitution and acts as a whorehouse; Plaintiff serves tainted food.
C. Defendant is prohibited from filming (whether by video camera or still photography) within 25 feet of the premises of the Balboa Island Village Inn unless Defendant engages in such filming while on Defendants own property. An exception to this prohibition occurs when Defendant is documenting the circumstances surrounding an immediate disturbance or damage to her property. An example of this exception might involve Defendants attempt to gather evidence regarding the mechanism and identity of any person who breaks the window of Defendants house.
The Court of Appeal upheld paragraph 4C of the judgment, which granted an injunction prohibiting defendant from filming within 25 feet of the Village Inn, but invalidated paragraphs 4A and 4B of the judgment enjoining defendant from initiating contact with employees of the Village Inn and repeating the identified defamatory statements about the Village Inn, ruling that those portions of the judgment violated defendants right to free speech under the federal and California Constitutions. We granted review.
We agree with the result reached by the Court of Appeal, but disagree in part with its reasoning. Paragraph 4A, which prohibits defendant from initiating contact with employees of the Village Inn at any time or place, is impermissibly broad. Paragraph 4B, which prohibits defendant from repeating certain defamatory statements, also is overly broad, but a properly limited injunction prohibiting defendant from repeating to third persons statements about the Village Inn that were determined at trial to be defamatory would not violate defendants right to free speech.
Discussion
The First Amendment to the United States Constitution provides that Congress shall make no law . . . abridging the freedom of speech . . . . This fundamental right to free speech is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. (Lovell v. Griffin (1938) 303 U.S. 444, 450; Gitlow v. New York (1925) 268 U.S. 652, 666.) Numerous decisions have recognized our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270.)
But the right to free speech, [a]lthough stated in broad terms, . . . is not absolute. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134 (plur. opn. of George, C. J.).) Liberty of speech . . . is . . . not an absolute right, and the State may punish its abuse. (Near v. Minnesota (1931) 283 U.S. 697, 708.) The First Amendment presupposes that the freedom to speak ones mind is not only an aspect of individual liberty and thus a good unto itself but also is essential to the common quest for truth and the vitality of society as a whole. Under our Constitution, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. [Citation.] Nevertheless, there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend, because they are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. [Citation.] [] Libelous speech has been held to constitute one such category, [citation] . . . . (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503-504; Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 245-246 [The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation . . . .]; R.A.V. v. St. Paul (1992) 505 U.S. 377, 382-383; Beauharnais v. Illinois (1952) 343 U.S. 250, 255-257, 266 [Libelous utterances not being within the area of constitutionally protected speech . . . .] Chaplinsky v. New Hampshire (1942) 315 U.S. 568, 571-572.)[1]
Defendant in the present case objects to the imposition of an injunction prohibiting her from repeating statements the trial court determined were slanderous, asserting the injunction constitutes an impermissible prior restraint. We disagree. As explained below, 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 prohibition against prior restraints on freedom of expression is rooted in the English common law, but originally applied only to freedom of the press. In 1769, Blackstone explained in his Commentaries on the Laws of England that when printing first was invented in 1476, the press was entirely controlled by the government[2], at first through the granting of licenses and later by the decrees of the star chamber: The art of printing, soon after its introduction, was looked upon (as well in England as in other countries) as merely a matter of state, and subject to the coercion of the crown. It was therefore regulated with us by the kings proclamations, prohibitions, charters of privilege and of licence, and finally by the decrees of the court of starchamber; which limited the number of printers, and of presses which each should employ, and prohibited new publications unless previously approved by proper licensers. (4 Blackstones Commentaries 152, fn. a.) Blackstone observed that subjecting the press to the restrictive power of a licenser restricted freedom of expression. (Id. at p. 152.) It was only in 1694, Blackstone explained, after the end of the star chamber, that the press became properly free . . . and has ever since so continued. (Id. at p. 152, fn. a.)
But the freedom granted to the press to print what it pleased without first having to obtain permission did not mean that government could not punish the press if it abused that privilege. Blackstone observed that in imposing criminal penalties for libel, the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. (4 Blackstones Commentaries 151-152.)
It was this former practice of the English government of licensing the press that inspired the First Amendments prohibition against prior restraints: When the first amendment was approved by the First Congress, it was undoubtedly intended to prevent governments imposition of any system of prior restraints similar to the English licensing system under which nothing could be printed without the approval of the state or church authorities. (Tribe, American Constitutional Law (2d ed. 1988) 12-34, p. 1039.) As another noted commentator has explained: The First Amendment undoubtedly was a reaction against the suppression of speech and of the press that existed in English society. Until 1694, there was an elaborate system of licensing in England, and no publication was allowed without a government granted license. . . . It is widely accepted that the First Amendment was meant, at the very least, to abolish such prior restraints on publication. (Chemerinsky, Constitutional Law Principles and Policies (2d ed. 2002) 11.1.1, p. 892, fn. omitted.)
This prohibition against prior restraints of the press led to the rule that the publication of a writing could not be prevented on the grounds that it allegedly would be libelous. In 1839, the New York Court of Chancery refused to prevent the publication of a pamphlet that allegedly would have defamed the plaintiff, holding that the publication of a libel could not be enjoined without infringing upon the liberty of the press, and attempting to exercise a power of preventative justice which . . . cannot safely be entrusted to any tribunal consistently with the principles of a free government. (Brandreth v. Lance (1839) 8 Paige 23, 26, italics added.) The court noted that the court of star chamber in England[[3]] . . . was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court was abolished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. (Brandreth v. Lance, supra, at p. 26.) The court refused, therefore, to prevent the defendants from publishing the pamphlet, but left them with this warning: And if the defendants persist in their intention of giving this libelous production to the public, [the plaintiff] must have his remedy by a civil suit in a court of law; or by instituting a criminal prosecution, to the end that the libelers, upon conviction, may receive their appropriate punishment, in the penitentiary or otherwise. (Id. at p. 28.)
But preventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published is far different from issuing a posttrial injunction after a statement that already has been uttered has been found to constitute defamation. 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. This distinction is hardly novel.
In 1878, the English Court of Common Pleas upheld a posttrial injunction prohibiting the repetition of a libel. The plaintiffs in Saxby v. Easterbrook (1878) 3 C.P.D. 339 were a firm of engineers that had applied for a patent for a railway device. The defendants printed a statement claiming they had invented the device and the plaintiffs had stolen it from them. The plaintiffs sued and were awarded damages and an injunction restraining the defendants from repetitions of acts of the like nature. (Id. at p. 341.) The English Court of Common Pleas affirmed the judgment. Lord Coleridge wrote: I can well understand a court of Equity declining to interfere to restrain the publication of that which has not been found by a jury to be libelous. Here, however, the jury have found the matter complained of to be libelous . . . . (Id. at p. 342.) Judge Lindley agreed, stating that when a jury have found the matter complained of to be libelous . . . , I see no principle by which the court ought to be precluded from saying that the repetition of the libel shall be restrained. (Id. at p. 343.)
An early case in Missouri reached the same conclusion, stating: After verdict in favor of the plaintiffs, they can have an injunction to restrain any further publication of that which the jury has found to be an actionable libel or slander. (Flint v. Smoke Burner Co. (Mo. 1892) 19 S.W. 804, 806.)And in 1916, Roscoe Pound noted in an article in the Harvard Law Review that English courts would allow an injunction in case the libel was repeated or publication was continued after a jury had found the matter libelous. (Pound, Equitable Relief Against Defamation and Injuries to Personality (1916) 29 Harv. L.Rev. 640, 665, fn. omitted.)
The Court of Appeal in the present case based its contrary conclusion that the injunction was an invalid prior restraint of speech on language in Near v. Minnesota, supra, 283 U.S. 697. Only when taken out of context, however, does the language in Near support the Court of Appeals conclusion.
In Near v. Minnesota, supra, 283 U.S. 697, 702, the high court considered a statute that permitted a court to enjoin as a nuisance the publication of a malicious, scandalous and defamatory newspaper or other periodical. The district court had found that several editions of a newspaper, The Saturday Press, were chiefly devoted to malicious, scandalous and defamatory articles concerning the Mayor and the Chief of Police of Minneapolis, as well as the county attorney and other officials. (Id. at p. 706.) The court abated The Saturday Press as a public nuisance and defendant was perpetually enjoined from publishing any publication whatsoever which is a malicious, scandalous or defamatory newspaper. (Ibid.)
The high court in Near recognized that prohibiting the future publication of a newspaper or other periodical is of the essence of censorship. (Near v. Minnesota, supra, 283 U.S. 697, 713.) The court stated that the chief purpose of the guarantee of liberty of the press is to prevent previous restraints upon publication. (Id. at p. 713.) The high court was careful to point out, however, that the statute being considered was not aimed at the redress of individual or private wrongs. Remedies for libel remain available and unaffected. (Id. at p. 709.) The court also observed that the common law rules that subject the libeler to responsibility . . . are not abolished by the protection extended in our constitutions. (Id. at p. 715.) But most significant is that the court, after noting that the protection even as to previous restraint is not absolutely unlimited, clarified that it was not addressing questions as to the extent of authority to prevent publications in order to protect private rights according to the principles governing the exercise of the jurisdiction of courts of equity. (Id. at p. 716, fn. omitted.) In a footnote, the court cited the above-quoted article by Roscoe Pound that observed that English courts permit an injunction in case the libel was repeated or publication was continued after a jury had found the matter libelous. (Pound, Equitable Relief Against Defamation and Injuries to Personality, supra, 29 Harv. L.Rev. at p. 665.)Therefore, Near expressly did not address the issue posed in the present case.[4]
The United States Supreme Court has never addressed the precise question before us whether an injunction prohibiting the repetition of statements found at trial to be defamatory violates the First Amendment. But several high court decisions have addressed related questions, and each is consistent with our holding that a court may enjoin the repetition of a statement that was determined at trial to be defamatory.
The decision in Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, 437, upheld a state law authorizing a limited injunctive remedy prohibiting the sale and distribution of written and printed matter found after due trial to be obscene. The high court rejected the defendants argument that issuance of an injunction amounts to a prior censorship in violation of the First Amendment (id. at p. 440), quoting Near v. Minnesota, supra, 283 U.S. 697, 716 for the proposition that the protection even as to previous restraint is not absolutely unlimited. (Kingsley Books, supra, 354 U.S. at p. 441.) The high court recognized that the term prior restraint cannot be applied unthinkingly: The phrase prior restraint is not a self-wielding sword. Nor can it serve as a talismanic test. (Ibid.) The court pointed out that the defendants in Kingsley Books were enjoined from displaying for sale or distributing only the particular booklets theretofore published and adjudged to be obscene. (Id. at p. 444.) This fact distinguished Kingsley Books from the decision in Near v. Minnesota, supra, 283 U.S. 697, which had ruled that the abatement as a public nuisance of a newspaper was an invalid prior restraint, noting that the abatement in Near enjoin[ed] the dissemination of future issues of a publication because its past issues had been found offensive, which is the essence of censorship. (Kingsley Books, supra, 354 U.S. at p. 445.) The high court in Kingsley Books observed that the injunction was glaringly different from the prior restraint in Near, because it studiously withholds restraint upon matters not already published and not yet found to be offensive. (354 U.S. at p. 445.)
Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 55 upheld a Georgia statute authorizing an injunction prohibiting the exhibition of obscene materials because the statute imposed no restraint on the exhibition of the films involved in this case until after a full adversary proceeding and a final judicial determination by the Georgia Supreme Court that the materials were constitutionally unprotected.
Pittsburgh Press Co. v. Human Rel. Commn (1973) 413 U.S. 376 held that an order forbidding a newspaper from publishing help wanted advertisements in gender-designated columns was not a prohibited prior restraint on expression. A city ordinance had been interpreted to forbid such segregation of advertisements as unlawful sexual discrimination in employment. The high court held that the First Amendment did not protect such illegal conduct, stating: We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes. (413 U.S. at p. 388.) The court held that the order was not a prohibited prior restraint on expression, noting that it never had held that all injunctions against newspapers were impermissible: The special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment. [] The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the Court is asked to speculate as to the effect of publication. [Citation.] (413 U.S. at p. 390; see also Madsen v. Womens Health Center, Inc. (1994) 512 U.S. 753, 764, fn. 2 [Not all injunctions that may incidentally affect expression, however, are prior restraints in the sense that the term was used in New York Times Co. [v. United States (1971) 403 U.S. 713] or Vance [v. Universal Amusement Co. (1980) 445 U.S. 308]].)
In each of these cases, the high court held an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech. (See Kramer v. Thompson (3d Cir. 1991) 947 F.2d 666, 675 [The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.]; see DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 891-892 (conc. opn. of Moreno, J.) [a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speakers or publishers First Amendment claims].)
Decisions of two federal courts echo this conclusion. Auburn Police Union v. Carpenter (1st Cir. 1993) 8 F.3d 886, upheld an injunction under a Maine statute that prohibited solicitations for the benefit of a law enforcement officer, agency, or association, rejecting the argument that an injunction against such solicitation necessarily would constitute an invalid prior restraint on expression: The Supreme Court . . . has never held that all injunctions are impermissible. [Citation.] The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment. [Citation.] An injunction that is narrowly tailored, based upon a continuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint. (Id. at p. 903; Haseotes v. Cumberland Farms, Inc. (Bankr. D.Mass. 1997) 216 B.R. 690, 695.)
In Lothschuetz v. Carpenter (6th Cir. 1990) 898 F.2d 1200, the district court awarded nominal damages after finding that the defendant had repeatedly libeled the plaintiffs but denied the plaintiffs request for an injunction, ruling that it would constitute an unwarranted prior restraint on freedom of speech. (Id. at p. 1206.) The Court of Appeals reversed, stating that in view of [the defendant]s frequent and continuing defamatory statements, an injunction is necessary to prevent future injury to [the plaintiff]s personal reputation and business relations. [Citations.] (Id. at pp. 1208-1209 (conc. & dis. opn. of Wellford, J.).)[5] The Court of Appeals majority made clear that it would limit the application of such injunction to the statements which have been found in this and prior proceedings to be false and libelous. (Ibid.)
The highest courts of several of our sister states have reached the same conclusion. The Ohio Supreme Court upheld a complaint that sought injunctive relief to prohibit the defendant from repeating statements after those statements were proven at trial to be defamatory. The court held: Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper. The judicial determination that specific speech is defamatory must be made prior to any restraint. [Citation.] (OBrien v. University Community Tenants Union, Inc. (1975) 42 Ohio St. 2d 242, 245 [327 N.E.2d 753, 755].)
The Georgia Supreme Court upheld an injunction issued following a jury trial in a libel case that prohibited the repetition of the statements found to be defamatory. The plaintiff in Retail Credit Company v. Russell (1975) 234 Ga. 765 [218 S.E.2d 54] discovered that the defendant credit reporting company had published a report erroneously stating the plaintiff had been fired from a previous job for stealing from his former employer. The plaintiff provided to the defendant a letter from his former employer completely refuting this libel. The jury found that the defendant promised to retract the statement, but failed to do so and, in fact, distributed further reports that repeated the libel. The jury awarded $15,000 in damages to the plaintiff, and the trial court entered a narrowly-drawn order enjoining Retail Credit from the further publication of the adjudicated libel. (Id., 218 S.E.2d at p. 56.) The Georgia Supreme Court rejected Retail Credits claim that the injunction constituted an unconstitutional prior restraint on expression, stating: The jury verdict necessarily found the statements of Retail Credit to have been false and defamatory, and the evidence authorized a conclusion that the libel had been repetitive. . . . Thus, prior to the issuance of the injunction an adequate determination [was made] that it is unprotected by the First Amendment; the order is based on a continuing course of repetitive conduct; and the order is clear and sweeps no more broadly than necessary. [Citation.] The protections recognized in Pittsburgh Press have been accorded Retail Credit and this injunction is not subject to the complaints made of it. (Id. at pp. 62-63.) The court added: The present order does not endanger arguably protected speech. Because the order is based on a continuing course of repetitive conduct, this is not a case in which the court is asked to speculate as to the effect of publication. (Id. at p. 62.)
The Supreme Court of Minnesota upheld an injunction issued following a jury trial that prohibited further publication of a book and a document that had been determined at trial to contain defamatory statements. [C]ourts have . . . upheld the suppression of libel, so long as the suppression is limited to the precise statements found libelous after a full and fair adversary proceeding. [Citations.] We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconstitutional and may stand. (Advanced Training Systems, Inc. v. Caswell Equipment Co., Inc. (Minn. 1984) 352 N.W.2d 1, 28-29.)
In Sid Dillon Chevrolet v. Sullivan (1997) 251 Neb. 722 [559 N.W.2d 740], the Nebraska Supreme Court overturned an injunction issued prior to trial that prohibited speech, quoting the general rule that equity will not enjoin a libel or slander. (Id., 559 N.W.2d at p. 746.) Among the reasons for this general rule, is that the defendant would be deprived of the right to a jury trial concerning the truth of his or her allegedly defamatory publication. (Ibid.) The court recognized, however, that this general rule does not necessarily apply to an injunction prohibiting speech that is issued following a trial at which the statements have been found to be unlawful: Some jurisdictions have concluded that an order enjoining further publication of libelous or slanderous material does not constitute a prior restraint on speech where there has been a full and fair adversarial proceeding in which the complained of publications were found to be false or misleading representations of fact prior to the issuance of injunctive relief. [Citations.] (Ibid.) Accordingly, the court carefully limited its holding to injunctions issued prior to trial: We adopt the view of those jurisdictions that have considered the issue and hold that absent a prior adversarial determination that the complained of publication is false or a misleading representation of fact, equity will not issue to enjoin a libel or slander . . . . (Id. at p. 747, italics added; Nolan v. Campbell (2004) 13 Neb.App. 212, 226 [690 N.W.2d 638, 652] [Here, the restraint via the injunction is permissible because the speech had been adjudicated to be libelous and therefore not to be protected under the First Amendment. Therefore, the trial court did not err in issuing an injunction.]; see also Annot., Injunction as Remedy Against Defamation of Person (1956) 47 A.L.R.2d 715, 728 [It may be argued that the constitutionally guaranteed rights of free speech and trial by jury are not infringed by equitable interference with the right of publication where the defamatory nature of the publications complained of has once been established by a trial at law, and the plaintiff seeks to restrain further similar statements.]; 42 AmJur.2d (2000) Injunctions 96, p. 691 [Once speech has judicially been found libelous, if all the requirements for injunctive relief are met, an injunction for restraint of continued publication of that same speech may be proper.].)
Accordingly, we hold that, following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121, 140 (plur. opn. of George, C. J.) [[O]nce a court has found that a specific pattern of speech is unlawful, an injunctive order prohibiting the repetition, perpetuation, or continuation of that practice is not a prohibited prior restraint of speech. [Citation.]].) Such an injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression. Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution. (Tribe, American Constitutional Law, supra, 12-37, pp. 1054-1055; Redish, The Proper Role of the Prior Restraint Doctrine in First Amendment Theory (1984) 70 Va. L.Rev. 53, 55 [in certain instances prior restraints are appropriately disfavored . . . because of the coincidental harm to fully protected expression that results from the preliminary restraint imposed prior to a decision on the merits of a final restraint. . . . Such interim restraints present a threat to first amendment rights . . . that expression will be abridged . . . prior to a full and fair hearing before an independent judicial forum to determine the scope of the speakers constitutional right.].)
Story Continues as Part II
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[1] The limitations upon actions for defamation brought by public figures do not apply here. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 344-346.)
[2] Meyerson, The Neglected History of the Prior Restraint Doctrine: Rediscovering the Link Between the First Amendment and Separation of Powers (2001) 34 Ind. L. Rev. 295, 298-305 (providing a history of prior restraints on the press in England).
[3] Which, the court noted in colorful language, once exercised the power of cutting off the ears, branding the foreheads, and slitting the noses of libellers of important personages. (Brandreth v. Lance, supra, 8 Paige 23, 26.)
[4] A law review article from half a century ago recognized that the injunction in Near was directed against the total silencing of the newspaper. An entirely different problem is presented when, for example, a plaintiff asks merely that a defendant be enjoined from distributing particular defamatory statements already in print. An injunction of the latter type would be no more objectionable as a restriction of free speech than punishment of defamation by punitive damage awards and criminal libel prosecutions. In neither case is the inhibition one upon speech in general, but only upon a specific group of words which have been adjudged to be beyond the range of constitutional protection. (Note, Developments in the Law of Defamation (1956) 69 Harv. L.Rev. 874, 944 fns. omitted.)
[5] Judge Wellfords concurring and dissenting opinion was joined by Judge Hull and, thus, is the opinion of the court on this issue. (Lothschuetz v. Carpenter, supra, 898 F.2d 1200, 1206.)
