Begging The Question

Unlike Judge Kozinski, I do check Howard Bashman's site before I eat breakfast every day, and today Howard points me to this very interesting decision from the California Supreme Court (54-page pdf). A caveat: As I'm writing this post, I haven't read Prof. Volokh's take, but I'm sure his will be the definitive one.

The case is Balboa Island Village Inn v. Lemen. Lemen lives across the street from the Inn, and apparently something over there bugs her. She started videotaping the Inn and customers coming and going. She told customers the food was tainted, that the Inn owners were involved in various illegal or immoral activities (including "promoting lesbianism"), that employees were working for Satan (and the Mafia), etc. (there's a lot more). She even circulated a petition containing these statements against the Inn, causing the Inn to lose business.

The Inn sued, and after a trial Lemen's statements were found to be defamatory. The court entered a permanent injunction barring Lemen from repeating her defamatory statements to third parties. Today, the California Supreme Court held that the injunction here was too broad, but also said that "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" under the First Amendment.

This is a remarkable ruling if only because any judicial approval of prior restraints on speech is so rare. I won't re-hash the doctrine here, but the black-letter rule is that prior restraints are presumptively unconstitutional, and it's darn hard to overcome that presumption. Recall the Pentagon Papers case, the classic example of a court refusing to issue a prior restraint on publication. For decades, the accepted course was for aggrieved parties to sue after the fact, and not before. About the only place you're ever going to see a successful prior restraint is if the speech in question falls under the category of obscenity or "fighting words," and those types of speech don't really get full First Amendment protection anyway. In sum, it's hard to overstate the disfavor in which prior restraints are held, and traditionally, that's true even in cases of libel or defamation.

But the California Supreme Court seems willing to countenance a narrow prior restraint. The court relied on Supreme Court cases allowing restraints when the speech at issue had already been found illegal -- obscenity in two cases and gender-discriminatory employment ads in another. (The California court also relied on several other state and federal cases involving libelous or defamatory speech.) So, the court reasoned, Lemen could be barred from repeating statements that had already been found defamatory in a trial.

The court's strongest argument is that it's an impractical burden for plaintiffs, having been repeatedly defamed, to bring a succession of lawsuits every time someone like Lemen repeats defamatory statements. That's especially true if the defendant is so poor she can't pay any money damages or so rich she wouldn't be pained to pay them. Obviously, they're not going to be able to duct-tape her mouth shut -- and thus, as a practical matter, may not be able to prevent repetition of the statements -- but an injunction brings her within the court's contempt power, and if she violates it, she can go to jail. For the court, this interest on the part of plaintiffs outweighs any First Amendment rights the defendant might have to repeat defamatory statements.

I predict that the U.S. Supreme Court will agree to hear this case if Lemen petitions for cert. Aside from just being a very interesting First Amendment issue, there are some solid reasons within the Court's usual practice for granting cert. As the California case mentioned, there had been a handful of cases addressing this issue, but it hadn't been litigated much yet. But now, this decision brings a large chunk of the population under the rule. Plus, it covers major media outlets and so much of the entertainment industry, and therefore has some potential impact on all Americans. There doesn't appear to be a true split of authority on the issue, but in a way, there is, both because it goes against the general presumption against any prior restraints, and the specific common law rule against injunctions against libels. I think the Court will eventually want to weigh in if that's where the doctrine is going.

I have a pretty good feeling that Lemen will get at least one vote, at least at the cert stage. A lot of liberals might be reluctant to admit it (or, sadly, unaware), but Justice Clarence Thomas is arguably the most protective of free speech rights among the current Court. And he feels pretty strongly about prior restraints. In 2000, he dissented from the denial of cert in another California prior restraint case, Avis Rent A Car System, Inc. v. Aguilar, 529 U.S. 1138. There, an Avis employee was found liable for harassing Latino employees. The court enjoined the defendant and Avis from saying (or, in the company's case, allowing anyone to say) harassing things about Latinos. The California Supreme Court narrowed the injunction but upheld it. The U.S. Supreme Court declined to hear Avis's appeal.

Justice Thomas dissented. First, he said that the speech was protected by the First Amendment, and wouldn't import workplace harassment law as an exception to the constitutional doctrine (absent something extreme like "fighting words"). Note that the Lemen case wouldn't involve the workplace speech issue, and thus would make a "cleaner" vehicle for dealing with prior restraints on defamatory speech. Second, Justice Thomas said that the injunction in Aguilar was too broad. The injunction in Lemen, as modified by the California Supreme Court, is much narrower, and likewise would present the issue in a much starker posture.

I'm not saying Justice Thomas would necessarily be on Lemen's side. In discussing why the Aguilar injunction was too broad, he said that "there has been no showing that the prospect of a money damages judgment for future violations would fall short of deterring petitioners." That may well be true in the case of a corporate defendant with assets, like Avis. But the California court said in Lemen that a "judgment proof" defendant wouldn't be deterred by a damages verdict, and an injunction might be the only recourse. And, Lemen's statements, having been found defamatory, lack the First Amendment protection that Justice Thomas saw in the Avis employee's speech.

I may have missed it in Lemen, but I don't think there's any specific finding that money damages are an insufficient remedy for the Inn. If Lemen isn't "judgment proof," then some of the Justices may feel that it's too soon for an injunction, and Justice Thomas's Aguilar dissent suggests that this finding is critical before imposing a prior restraint. The Court may decide to leave that for remand or consider it a factual uncertainty that would weigh against granting cert. And, while I think this case is plenty interesting on its own, it doesn't involve the workplace speech/harassment law issue, and might not be as compelling as Aguilar. On the other hand, Lemen could be an incremental step, and however it came out would be a strong indicator of how the Court might address the harassment prior restraint issue if it ever takes it up.

It's not an open-and-shut case, either on the merits or in terms of getting the cert grant. The California Supreme Court decision seems to make a lot of sense, although I'll point out that there were dissents. But it's an important and unsettled issue of First Amendment law, the case appears to be a good vehicle for raising the issue, and it appears there's at least one Justice who is interested in this general area of the law. That's why I think we'll see Lemen v. Balboa Village Inn on the U.S Supreme Court's docket next term. Dare we dream for another "Lemen" test?

Milbarge @ 7:19 PM | |