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 defendant�s 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.
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 Lemen�s 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 don�t 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 �Satan�s wife,� and was �going to have Satan�s
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 owner�s wife, as �Madam Whore� and
said, in the presence of her tenant, Larry Wilson: �Everyone on the island knows you�re 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 Inn�s 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 Plaintiff�s business must be communicated to a member or members
of Plaintiff�s 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 Plaintiff�s
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 Defendant�s 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 Defendant�s attempt to gather evidence regarding the
mechanism and identity of any person who breaks the window of Defendant�s
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 defendant�s 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 defendant�s right to free speech.
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 one�s 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 king�s 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 Blackstone�s
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 Blackstone�s
Commentaries 151-152.)
It was this
former practice of the English government of licensing the press that inspired
the First Amendment�s prohibition against prior restraints: �When the first amendment was approved
by the First Congress, it was undoubtedly intended to prevent government�s
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 Appeal�s 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 defendant�s 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. Comm�n (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. Women�s 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 speaker�s or publisher�s 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.]� (O�Brien
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 Credit�s 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 speaker�s constitutional right.�].)
Lemen argues that
damages are the sole remedy available for defamation, stating: �The traditional rule of Anglo-American
law is that equity has no jurisdiction to enjoin defamation.�[6] But, as Lemen acknowledges, this
general rule �was established in eighteenth-century England.� At that time, the courts of law and the
courts of equity were separate.[7] This long-since-abandoned separation of
the courts of law and equity accounts for the general rule that equity will not
enjoin defamation. As one
commentator has explained: �By the end of the Fifteenth Century, complaints against
defamation were heard in two different courts, the Star Chamber and the
common-law courts. . . . [�] . . . [�] When the Star
Chamber was abolished in 1641, the common-law courts assumed its former
jurisdiction over defamation . . . . [�] The courts of equity, accordingly, were denied authority
to hear claims for defamation. As early as 1742, it was ruled in the St.
James�s Evening Post Case, that the courts
of equity had no jurisdiction over claims of libel and slander: �For whether it
is a libel against the publick or private persons, the only method is to
proceed at law.� Since
the common-law courts then had no power at all to grant injunctions, the
resultant ruling meant that, in England, defamation could not be enjoined; the
only permissible remedy was money damages at law. . . . [�] Thus, an
extraordinarily important rule was created more as an offshoot of a
jurisdictional dispute than as a calculated understanding of the needs of a
free press. In fact, the creation of the rule that equity will not enjoin a
libel parallels the almost anti-climatic ending of licensing of the press.
These were both �historical accidents� . . . .� (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, 309-311, fns. omitted.)[8]
Further, as some
of the authorities cited by Lemen acknowledge, the general rule that a
defamation may not be enjoined does not apply in a circumstance such as that in
the present case in which an injunction is issued to prevent a defendant from
repeating statements that have been judicially determined to be
defamatory. For example, after
stating that �[a]s a general rule, an injunction will not lie to restrain a
libel or slander� (43A C.J.S. (2004) Injunctions, � 255, p.
283), Corpus
Juris Secundum clarifies that this general rule does not apply in circumstances
like those in the present case:
�After an action at law in which there is a verdict finding the
statements published to be false, the plaintiff on a proper showing may have an
injunction restraining any further publication of the matter which the jury has
found to be acts of libel or slander . . . .� (Id. at � 255, p. 284.) To the same effect, the annotation
written by W. E. Shipley and cited by Lemen states as a general rule �that
equity will not grant an injunction against publication of a personal libel or
slander� (Annot., Injunction as Remedy Against Defamation of Person, supra, 47 A.L.R. 715,
716) but also acknowledges: �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.� (Id. at p. 728.)[9]
In determining
whether an injunction restraining defamation may be issued, therefore, it is crucial
to distinguish requests for preventive relief prior to trial and post-trial
remedies to prevent repetition of statements judicially determined to be
defamatory. As one commentator
aptly recognized: �There are two
stages at which it would be in the plaintiff�s interest to enjoin publication
of a defamation – firstly to preclude the initial public distribution,
and secondly to bar continued distributions after a matter has been adjudged
defamatory. [�] The attempt to enjoin the initial distribution of a defamatory
matter meets several barriers, the most impervious being the constitutional
prohibitions against prior restraints on free speech and press. . . .
[�] In addition, such an injunction may be denied on the ground that equitable
jurisdiction extends only to property rights and not personalty . . . .
[�] In a few states the requirement that criminal libels be tried by a jury has
been applied to civil cases as well, thus providing a third objection to the
granting of an injunction against the initial distribution of defamatory
matter. [�] In contrast, an injunction against continued distribution of a
publication which a jury has determined to be defamatory may be more readily
granted. The simplest
procedure is to add a prayer for injunctive relief to the action for damages. . . .
Since the constitutional problems of a prior restraint are not present in this
situation, and the defendant has not been deprived of a jury determination,
injunctions should be available as ancillary relief for . . . personal
and political defamations.� (1
Hanson, Libel and Related Torts (1969) � 170, pp. 139-140, italics added.)
Accepting
Lemen�s argument that the only remedy for defamation is an action for damages
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 tortuous behavior. This could occur if the defendant
either was so impecunious as to be �judgment proof,� or so wealthy as to be
willing to pay any resulting judgments.
Thus, a judgment for money damages will not always give the defendant
effective relief from a continuing pattern of defamation. The present case provides an apt
example. The Village Inn did not
seek money damages in its amended complaint. The Inn did not want money from Lemen; it just wanted her to
stop.[10]
We recognize, of course, that a court must tread lightly and carefully when issuing an
order that prohibits speech. In Carroll
v. Princess Anne (1968) 393 U.S. 175, the
high court invalidated a restraining order prohibiting the continuation of a
public rally conducted by a �white supremacist� organization that had been
issued ex parte without notice to the enjoined parties. In explaining the importance of giving the enjoined
parties an opportunity to be heard, the high court in Princess Anne stressed the importance of
limiting any order restraining speech:
�An order issued in the area of First Amendment rights
must be couched in the narrowest terms that will accomplish the pin‑pointed
objective permitted by constitutional mandate and the essential needs of the
public order. In this sensitive
field, the State may not employ �means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved.� [Citation.] In other words, the order must be tailored as precisely as
possible to the exact needs of the case.� (Carroll
v. Princess Anne, supra, 393 U.S. at pp. 183-184; Pittsburgh Press Co. v. Human
Rel. Comm�n, supra, 413 U.S. 376, 390 [upholding an order that is �clear and sweeps no more
broadly than necessary�]; Aguilar v. Avis Rent A Car System,
Inc., supra, 21 Cal.4th 121, 140-141 (plur. opn. of George, C. J.).)
The court in Madsen v. Women�s Health Center, Inc., supra, 512 U.S. at
page 765, held that review of an injunction, as opposed to an ordinance, that
restricted the time, place, and manner of protected expression �require[s] a
somewhat more stringent application of general First Amendment principles.� The high court explained: �In past cases evaluating injunctions
restricting speech, [citations], we have relied upon such general principles
while also seeking to ensure that the injunction was no broader than necessary
to achieve its desired goals.
[Citations.] Our close attention to the fit between the objectives of an
injunction and the restrictions it imposes on speech is consistent with the
general rule, quite apart from First Amendment considerations, �that injunctive
relief should be no more burdensome to the defendant than necessary to provide
complete relief to the plaintiffs.�
[Citations.]� (Ibid.)
The same result
obtains under the California Constitution. Article I, section 2, subdivision (a) of the California
Constitution states: �Every person
may freely speak, write and publish his or her sentiments on all subjects,
being responsible for the abuse of this right.� In Dailey v. Superior Court (1896) 112 Cal.
94, this court overturned an order issued prior to a play�s opening performance
that prohibited the performance or advertising of the play because it was based
upon the facts of a pending criminal trial. Concluding that the order constituted a prohibited prior
restraint of expression, this court observed that the wording of the above-quoted
constitution provision �is terse and vigorous, and its meaning so plain that
construction is not needed. . . . 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.� (Id. at p. 97.) In Wilson v. Superior Court (1975) 13
Cal.3d 652, 658, we held that a preliminary injunction issued prior to trial
that prohibited the distribution of a political campaign leaflet was
unconstitutional because it �constituted a prior restraint on publication.�
Despite the
broad language in the California Constitution protecting speech, we have
recognized that a court may enjoin further distribution of a publication that
was found at trial to be unlawful, stating: �[I]f the trial court finds the subject matter obscene under
prevailing law an injunctive order may be fashioned . . . . It
is entirely permissible from a constitutional standpoint to enjoin further
exhibition of specific magazines or films which have been finally adjudged to
be obscene following a full adversary hearing. [Citations.]� (People
ex rel. Busch v. Projection Room Theater (1976) 17
Cal.3d 42, 57; see Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th
121, 144-145 (plur. opn. of George, C. J.) [�Under the California
Constitution, as under its federal counterpart, the injunction in the present
case thus does not constitute a prohibited prior restraint of speech, because
defendants simply were enjoined from continuing a course of repetitive speech that
had been judicially determined to constitute unlawful harassment in violation
of the FEHA.�].)
The injunction in the present case is broader than
necessary to provide relief to plaintiff while minimizing the restriction of
expression. (Madsen v. Women�s
Health Center, Inc., supra, 512 U.S. 753, 765.)
The injunction applies not just to Lemen but to �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.� There is no evidence in the record, however, to support a
finding that anyone other than Lemen herself defamed defendant, or that it is
likely that Lemen will induce others to do so in the future. Therefore, the injunction, to be valid,
must be limited to prohibiting Lemen personally from repeating her defamatory
statements.[11]
Further, the injunction must not prevent Lemen from
presenting her grievances to government officials. The right to petition the government for redress of
grievances is �among the most precious of the liberties safeguarded by the Bill
of Rights.� (Mine Workers v.
Illinois Bar Assn. (1967) 389 U.S. 217,
222.) Accordingly, paragraph 4B,
which prohibits Lemen �from making the following defamatory statements
about Plaintiff to third persons� must be modified to
prohibit Lemen �from making the following defamatory statements about
Plaintiff to third persons other than governmental officials with relevant
enforcement responsibilities.�
The injunction prohibits Lemen from �initiating contact with
individuals known to Defendant to be employees of Plaintiff.� We agree with the Court of Appeal that
this restriction �sweeps more broadly than necessary� because it �includes no
time, place, and manner restrictions but prohibits Lemen from initiating any
type of contact with a known Village Inn employee anywhere, at any time,
regarding any subject.�[12]
Lemen argues that she cannot be enjoined from repeating the
same statements found to be defamatory, because a change in circumstances might
render permissible a statement that was defamatory, stating: �A statement that
was once false may become true later in time.� If such a change in circumstances occurs, defendant may move
the court to modify or dissolve the injunction. Civil Code section 3424, subdivision (a) states: �Upon notice and motion, the court may
modify or dissolve a final injunction upon a showing that there has been a
material change in the facts upon which the injunction was granted
. . . .� �This
statute codifies a long-settled judicial recognition of the inherent power of
the court to amend an injunction in the interest of justice when
�. . . there has been a change in the controlling facts upon which
the injunction rested . . . .� [Citations.]� (Swan Magnetics, Inc. v. Superior
Court (1997) 56 Cal.App.4th 1504, 1509.) By the same token, the Village Inn
could move to modify the injunction if Lemen repeated her defamatory statements
in a manner not expressly covered by the injunction.[13]
If it chose to, the trial court could retain jurisdiction
to monitor the enforcement of the injunction. �The
jurisdiction of a court of equity to enforce its decrees is coextensive with
its jurisdiction to determine the rights of the parties, and it has power to
enforce its decrees as a necessary incident to its jurisdiction. Except where
the decree is self-executing, jurisdiction of the cause continues for this
purpose, or leave may be expressly reserved to reinstate the cause for the
purpose of enforcing the decree, or to make such further orders as may be
necessary. [Citations.]� (Klinker v. Klinker (1955)
132 Cal.App.2d
687, 694.)
Accordingly, we
agree with the Court of Appeal that the injunction issued by the trial court
must be reversed in part, but we reach that conclusion based on different
reasoning than that relied upon by the Court of Appeal. As explained above, the injunction must
be reversed in part because it is overly broad, but a properly limited
injunction prohibiting defendant from repeating statements about
plaintiff that were determined at trial to be defamatory would not violate
defendant�s right to free speech.
The judgment of
the Court of Appeal is affirmed, and the matter remanded for proceedings
consistent with the views expressed in this opinion.
MORENO,
J.
WE CONCUR: George, C. J.
Baxter,
J.
Chin,
J.
CORRIGAN,
J.
CONCURRING OPINION BY BAXTER,
J.
I join fully in the majority opinion. I write separately only to point out that if a defendant were to be enjoined from repeating statements already determined to be defamatory, such a defendant may not only move the court to modify or dissolve the injunction based on a change in circumstances 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. (People v. Gonzalez (1996) 12 Cal.4th 804, 818 [�this court has firmly established that a person subject to a court�s injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court�]; In re Berry (1968) 68 Cal.2d 137, 149-150.)
Our decision thus does not require a citizen to obtain government permission before speaking truthfully. In this respect, California law �is �considerably more consistent with the exercise of First Amendment freedoms� than that of other jurisdictions that have adopted the so-called collateral bar rule barring collateral attack on injunctive orders.� (People v. Gonzalez, supra, 12 Cal.4th at p. 819, quoting In re Berry, supra, 68 Cal.2d at p. 150.)
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
CONCURRING AND DISSENTING OPINION BY
KENNARD, J.
In this defamatory speech action, the Court of Appeal invalidated the trial court�s permanent injunction against defendant. The majority here affirms the Court of Appeal�s judgment. So would I.
Unlike the majority, however, I would not remand the matter for issuance of a narrower injunction. Rather, I agree with the Court of Appeal that an injunction permanently prohibiting defendant�s future speech is an unconstitutional prior restraint. And, unlike the majority, I would hold that the remedy for defamation is to award monetary damages. To forever gag the speaker—the remedy approved by the majority—goes beyond chilling speech; it freezes speech.
The majority acknowledges that the statements the trial court has prohibited defendant from uttering may in the future become true. In that event, the majority concludes, defendant has an adequate remedy because she may apply to the trial court for modification of the injunction. I disagree. 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.
Plaintiff Balboa Island Village Inn, Inc., owns the Balboa Island Village Inn (Village Inn), a bar and restaurant on Balboa Island in Newport Beach, Southern California. The Village Inn has live music, and on weekends it stays open until 2:00 a.m. Defendant Anne Lemen (Lemen) has since 1989 owned a cottage across an alley from the Village Inn. Lemen lives in the cottage part of the time and rents it out as a vacation home part of the time.
Like the previous owners of her home, Lemen became embroiled in a dispute with plaintiff about noise at the Village Inn. She also complained about the inebriation and boisterousness of departing customers. Lemen circulated a petition on Balboa Island, which has about 1100 residents, and obtained, as plaintiff�s counsel acknowledged at oral argument, 400 signatures. While circulating the petition, and at other times, Lemen orally accused plaintiff of, among other things, having child pornography and prostitution at the Village Inn, selling drugs and alcohol to minors there, and being involved with the Mafia.
Plaintiff sued Lemen, alleging causes of action for nuisance, interference with business, and defamation. Although plaintiff claimed that the Village Inn experienced a 20 percent drop in business after Lemen circulated her petition and made her oral accusations (maj. opn., ante, at p. 3), it sought no monetary damages whatsoever. The sole remedy it sought, and obtained, was a permanent injunction ordering Lemen to stop making disparaging statements about the Village Inn. (Maj. opn., ante, at p. 22.)
The trial court prohibited Lemen from contacting Village Inn employees, an order that the Court of Appeal invalidated as an overbroad restriction. The trial court also permanently enjoined Lemen from making the following 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.� The Court of Appeal held that these restrictions on Lemen�s future speech are a constitutionally impermissible prior restraint of speech.
The majority agrees with the Court of Appeal that the trial court�s permanent injunction is unconstitutional. But it does so based only on the overbreadth of the injunction in applying to persons other than Lemen herself; in restricting Lemen�s contacts with plaintiff�s employees regardless of time, place, or manner; and in prohibiting Lemen from making the specified statements even to government officials. (Maj. opn., ante, at pp. 24-25.) The majority, however, rejects the Court of Appeal�s holding that the injunction is an unconstitutional prior restraint. (Id. at p. 18.) It holds: (1) After a trial court has once found a defendant�s statement to be defamatory, it may order the defendant never to repeat that statement (ibid.); (2) future speech may be enjoined irrespective of whether monetary damages would have been an adequate remedy (id. at p. 22); and (3) a defendant�s truthful future speech may be subjected to judicial censorship (id. at pp. 25-26).
I do not and cannot join those majority holdings, which I view as restraints on the right of free speech that are impermissible under both the federal and the California Constitutions. The majority orders the matter remanded so that the trial court may prepare and file a new permanent injunction against Lemen that avoids the overbreadth problems that the majority has identified. I do not agree with the remand. Even as so limited, the injunction operates as an impermissible prior restraint of Lemen�s future speech.
To speak openly and freely, one of our most cherished freedoms, is a right guaranteed by the First Amendment to the United States Constitution. (U.S. Const., 1st Amend. [�Congress shall make no law . . . abridging the freedom of speech . . . .�].) This fundamental right operates as a restriction on both state and federal governments (Near v. Minnesota (1931) 283 U.S. 697, 732) including the judicial, legislative, and executive branches of those governments (Madsen v. Women�s Health Center, Inc. (1994) 512 U.S. 753, 764).
Injunctions pose a greater threat to freedom of speech than do statutes, as injunctions carry a greater risk of censorship and discriminatory application than do general laws. (Madsen v. Women�s Health Center, Inc., supra, 512 U.S. at pp. 764-765.) An injunction is issued not by the collective action of a legislature but by an individual judge—a single man or woman controlling someone�s future utterances of speech. Because the power to enjoin speech resides in an individual judge, injunctions deserve greater scrutiny than statutes. (See id. at p. 793 (conc. & dis. opn. of Scalia, J.).) An injunction restricting future speech is a prior restraint (id. at p. 797 (conc. & dis. opn. of Scalia, J.)) and thus, presumptively unconstitutional (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558).
The majority�s insistence to the contrary notwithstanding (maj. opn., ante, at p. 6), the injunction here is a prior restraint because it prohibits Lemen from making specified statements (ante at p. 2) anywhere and at any time in the future. A prohibition targeting speech that has not yet occurred is a prior restraint. (Alexander v. United States (1993) 509 U.S. 544, 550 [court orders that actually forbid speech activities are classic examples of prior restraints]; see Tory v. Cochran (2005) 544 U.S. 734, 736 [125 S.Ct. 2108, 2110] [injunction against �orally uttering statements� is a prior restraint].)
The pertinent inquiry is whether the presumptively unconstitutional prior restraint (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at p. 558; Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 70) on Lemen�s future speech is legally proper. A heavy burden of justification rests on anyone seeking a prior restraint on the right of free speech. (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419.) Here, plaintiff has not carried that burden. Plaintiff�s argument, adopted by the majority, consists in essence of this syllogism: (1) Defamation is not constitutionally protected speech; (2) it has been judicially determined that Lemen defamed plaintiff by making certain statements; therefore (3) defendant may be enjoined from ever again making those statements. (Maj. opn., ante, at p. 18.) Like many a syllogism, the argument has superficial appeal. Like many a syllogism, it is flawed.
Its flaw is the failure to appreciate that whether a statement is defamatory cannot be determined by viewing the statement in isolation from the context in which it is made, the facts to which it refers, and the precise wording used. A statement previously adjudged to be defamatory, and thus not protected by the First Amendment, may, when spoken in the future at a particular time and in a particular context, not be defamatory for a number of reasons, and thus be entitled to constitutional protection.
The underlying facts to which the statement refers may change. Here, 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.
And, the context
in which the words are spoken may be different. For an audience member to falsely yell �fire� in a crowded
theater is quite different than for an actor to yell the same word in the same
crowded theater while reciting the lines of a dramatic production. Similarly, if a newspaper reporter were
to ask Lemen what sorts of things the trial court�s injunction prohibited her
from saying, and if Lemen were to reply, �Plaintiff sells alcohol to minors,�
the statement would not be defamatory because a reasonable person hearing the
conversation would understand that Lemen was describing the contents of the
injunction and not the activities at the Village Inn. (See Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1501 [whether an oral
statement is defamatory depends on how a reasonable hearer would understand it
in the context in which it was spoken].)
In other words, whether the First Amendment protects speech depends on
the setting in which the speech occurs.
(Young v. American Mini Theatres, Inc. (1976) 427 U.S. 50, 66; Baker v. Los
Angeles Herald Examiner (1986) 42 Cal.3d
254, 260 [statement must be examined in light of the �totality of the
circumstances�].) Because the
injunction here makes no allowance for context, it muzzles nondefamatory speech
entitled to full constitutional protection.
Also, the words in which a statement is formulated may vary. Subtle differences in wording can make it exceptionally difficult to determine whether a particular utterance falls within an injunction�s prohibition. As the United States Supreme Court has aptly observed: �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, supra, 420 U.S. at p. 559; accord, Young v. American Mini Theatres, Inc., supra, 427 U.S. at p. 66.) For example, should in this case Lemen express in the future her opinion that bars such as the Village Inn contribute to the social problems arising from alcoholic consumption by minors, has Lemen violated the injunction? Does that assertion imply that the Village Inn sells alcohol to minors or only that the general availability of alcohol in all bars, including the Village Inn, contributes to the social problems caused by alcohol? If Lemen were to tell a friend that the food at the Village Inn is �bad,� would that statement imply that the food is �tainted� (a statement that the injunction forbids) or only that it is unappetizing or ill-flavored (statements that the injunction does not forbid)?
The United States Supreme Court�s 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.