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SACRAMENTO � Individuals who unjustly defame others might soon find themselves muzzled by the courts. A majority of the state Supreme Court indicated during oral arguments Monday that injunctions aimed at blocking speech found defamatory by a judge wouldn’t violate the United States or California constitutions’ free speech guarantees � if narrowly drawn. If the court rules that way, it would give trial court judges for the first time the authority to issue permanent injunctions against defamatory speech, especially when damages might not be a sufficient remedy. Chief Justice Ronald George � joined by Justices Marvin Baxter, Carol Corrigan and Kathryn Mickle Werdegar � led the charge by challenging defense lawyers’ assertions that damages are the only legal remedy available for victims of unwarranted defamation. George and Corrigan, in particular, appeared bothered by the assertion that defamed people would have to keep going back to court seeking damages, rather than having a defamer hushed up permanently by the courts. “Does this have to go on forever?” George asked defense lawyer Erwin Chemerinsky, a constitutional law professor at Duke University School of Law. Added Corrigan: “We keep doing this ad infinitum?“ If George and Corrigan prevail, it would be a huge victory for the Balboa Island Village Inn, a Newport Beach restaurant and bar targeted by a neighbor, Anne Lemen, who has protested noise and other disturbances for years. She allegedly harasses employees and customers and makes false allegations about the business. According to court records, though, Lemen went too far by making nine public allegations that the restaurant’s owners, among other things, sold alcohol to minors, distributed illegal drugs, participated in prostitution and made child pornography. Orange County Superior Court Judge Gerald Johnston ruled that Lemen’s comments were defamatory and issued a permanent injunction prohibiting her from repeating the statements. Santa Ana’s Fourth District Court of Appeal reversed in part in 2004, finding that while Lemen’s speech was defamatory, a permanent injunction was overly broad and constituted a “content-based prior restraint on speech.” The U.S. Supreme Court has generally frowned on any prior restraints.
‘If you allow an injunction in this case, then in every defamation case the remedy would be an injunction.’

Erwin Chemerinsky, representing defendant Anne Lemen


On Monday, Joyce Kennard and possibly Carlos Moreno appeared to be the only Supreme Court justices who felt the Fourth District was correct. Kennard told J. Scott Russo � a partner in Irvine’s Dubia, Erickson, Tenerelli & Russo who represented the Balboa Island Village Inn � that “at first glance” it appeared the court of appeal reached the right decision. Noting that neither the U.S. nor California Supreme Courts has allowed permanent injunctions against defamatory speech, she said the court must move cautiously in regard to the country’s “most cherished constitutional provision � freedom of speech.” Several justices asked why Balboa Island Village Inn sought only injunctive relief, rather than damages. Russo explained that it would have been difficult to prove that Lemen’s actions alone posed financial problems for the restaurant because the entire city � and Balboa Island in particular � suffered an economic downturn at about the same time. George rushed to Russo’s defense by pointing out that seeking damages isn’t always easy anyway, particularly if someone doesn’t have the money to pay. Chemerinsky warned that the permanent injunction approved by the trial court in this case was so broad that it would have prevented Lemen from even approaching employees of the restaurant if she ran into them while on a trip abroad. He also warned the justices about opening a Pandora’s box. “If you allow an injunction in this case, then in every defamation case the remedy would be an injunction,” he said. “It has always been the law in this country that damages are the remedy in defamation cases.” Justice Baxter, however, asked Chemerinsky whether damages would still be the sole remedy if defamatory comments forced someone out of business. When the professor said yes, Baxter wondered how that could be if running a restaurant were an individual’s lifelong dream. “Is that a right that’s of less value than the right to free speech?” he asked. Justice Werdegar seemed to chart a middle road, asking Chemerinsky whether an injunction could be fashioned in a way that was narrow. As an example, she asked whether the injunction against Lemen would be constitutional if it said she wasn’t able to repeat nine specific statements judged defamatory and for which getting damages would be difficult. Chemerinsky said that would be possible, but still wouldn’t necessarily be constitutional. “So,” George asked skeptically, “there’s no way to write an injunction that will solve all the constitutional problems?” At one point during the arguments, Kennard pointed out that Lemen was able to secure 400 signatures from local residents complaining about the Balboa Island Village Inn. Russo responded by saying that residents signed the petition based on Lemen’s false allegations, making that support irrelevant. “It did not mean she was right,” he said. A ruling in Balboa Island Village Inn Inc. v. Lemen, S127904, is due within 90 days.

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