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A divided California Supreme Court reined in free speech slightly on Thursday by ruling that judges can enjoin individuals from repeating statements that have been declared defamatory at trial. Limited in that fashion, Justice Carlos Moreno wrote in the 5-2 ruling, a court-ordered injunction on speech “is not a prior restraint and does not offend the First Amendment.” The dissenters fiercely disagreed, with Justice Joyce Kennard saying such an injunction “freezes speech.” And Justice Kathryn Mickle Werdegar contrasted it with a restriction on time, place or manner, calling it “more like a gag order, judicially enforced.” Despite the justices’ disagreement, Eugene Volokh, a constitutional law professor at UCLA School of Law who was not involved in the case, said the decision wasn’t surprising. “It is not a huge ruling,” he said, “partly because it fits in the pattern of what many other courts have done. It’s not terribly aggressive in limiting speech.” The ruling vindicates the Balboa Island Village Inn, whose owners sued neighbor Anne Lemen for allegedly trying to drive the Newport Beach restaurant and bar out of business. Upset by noise and drunken patrons, Lemen allegedly has spent years harassing employees and bad-mouthing the Village Inn to customers. An Orange County judge issued a permanent injunction against Lemen after trial that prohibited her from repeating several false statements, including allegations that the inn’s owners sold alcohol to minors, distributed illegal drugs, allowed prostitution and made child pornography. Santa Ana’s Fourth District Court of Appeal reversed in part ( .pdf) in 2004. While finding Lemen’s statements defamatory, the court declared a permanent injunction overbroad and a “content-based prior restraint on speech.” In Thursday’s ruling, all seven Supreme Court justices affirmed the lower court’s finding that the overall injunction was overbroad. But the five-person majority remanded the case so that a more narrowly drawn injunction could be issued.
‘Requiring a citizen to obtain government permission before speaking truth-fully is “the essence of censorship” directly at odds with the “chief purpose” of the constitutional guarantee of free speech to prevent prior restraints.’

JUSTICE JOYCE KENNARD, in dissent


“A properly limited injunction prohibiting [Lemen] from repeating to third persons statements about the Village Inn that were determined at trial to be defamatory,” Moreno wrote, “would not violate defendant’s right to free speech.” As an example, he noted that the part of the injunction prohibiting Lemen from making specific defamatory statements to third parties could be modified to permit her to make them to “governmental officials with relevant enforcement responsibilities.” Lemen’s lawyers had argued that the only available remedy for defamation has historically been a suit for damages, not an injunction blocking speech. But the court wasn’t convinced. “Accepting Lemen’s argument,” Moreno wrote, “would mean that [individuals] 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.” Thursday’s ruling brings California in line with several other states’ high courts, including those in Ohio, Georgia, Minnesota and Nebraska. In her separate opinion, Justice Kennard said she would have limited the Village Inn to seeking damages. “To forever gag the speaker � the remedy approved by the majority � goes beyond chilling speech,” she wrote. “It freezes speech.” Kennard said the ruling also puts Lemen in an unfair position. If in the future the Village Inn ever engages in any of the conduct Lemen accused it of, Kennard said, Lemen could face a contempt of court charge if she repeats the allegations. “Requiring a citizen to obtain government permission before speaking truthfully,” Kennard wrote, “is ‘the essence of censorship’ directly at odds with the ‘chief purpose’ of the constitutional guarantee of free speech to prevent prior restraints.” Justice Werdegar argued that the underlying case involved “a garden-variety defamation under state law” that couldn’t overcome the greater constitutional interests expressed in the First Amendment. She compared the Village Inn’s situation unfavorably to that of the plaintiffs in Aguilar v. Avis Rent A Car System Inc., 21 Cal.4th 121, a 1999 ruling in which a defendant’s free-speech rights were pitted against the state’s � and plaintiffs’ � in eradicating racial discrimination in the workplace. In that case, the high court upheld an injunction that prevented an employee for Avis Rent A Car from using racial epithets against Latino co-workers. “Unlike in Aguilar, where the plaintiffs plausibly could argue the Constitution protected their interests as well as the defendants’,” Werdegar wrote, “plaintiff in this case cannot wield the Constitution as its sword.” Lemen’s lawyer, Erwin Chemerinsky, a constitutional law professor at Duke University Law School, couldn’t be reached for comment. Irvine attorney J. Scott Russo, who represented the owners of the Village Inn, didn’t return a phone call seeking comment. The ruling is Balboa Island Village Inn Inc. v. Lemen, 07 C.D.O.S. 4553.

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