Balboa Island Village Inn, Inc. v. Lemen

KENNARD, J., Concurring and Dissenting.

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 *1163 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.

I

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. 1145), 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. 1158.)

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 *1164 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. 1159-1161.) The majority, however, rejects the Court of Appeal’s holding that the injunction is an unconstitutional prior restraint. (Id. at p. 1156.) 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. 1158); and (3) a defendant’s truthful future speech may be subjected to judicial censorship (id. at pp. 1160-1161).

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.

II

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 [ 75 L.Ed. 1357 , 51 S.Ct. 625 ]), including the judicial, legislative, and executive branches of those governments (Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753, 764 [ 129 L.Ed.2d 593 , 114 S.Ct. 2516 ]).

Injunctions pose a greater threat to freedom of speech than do statutes, as injunctions carry a greater risk of censorship and discriminatory application *1165 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 [ 43 L.Ed.2d 448 , 95 S.Ct. 1239 ]).

The majority’s insistence to the contrary notwithstanding (maj. opn., ante, at p. 1148), the injunction here is a prior restraint because it prohibits Lemen from making specified statements (ante, at p. 1146) 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 [ 125 L.Ed.2d 441 , 113 S.Ct. 2766 ] [court orders that actually forbid speech activities are classic examples of prior restraints]; see Tory v. Cochran (2005) 544 U.S. 734, 736 [ 161 L.Ed.2d 1042 , 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 [ 9 L.Ed.2d 584 , 83 S.Ct. 631 ]) 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 [ 29 L.Ed.2d 1 , 91 S.Ct. 1575 ].) 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 pp. 1155-1156.) 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 *1166 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 [ 39 Cal.Rptr.2d 848 ] [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 [ 49 L.Ed.2d 310 , 96 S.Ct. 2440 ]; Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 [ 228 Cal.Rptr. 206 , 721 P.2d 87 ] [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)?

*1167 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. v. Brown (1957) 354 U.S. 436 [ 1 L.Ed.2d 1469 , 77 S.Ct. 1325 ], the high court upheld an injunction of “written and printed matter found after due trial to be obscene” (id. at p. 437) because the injunction “studiously withholds restraint upon matters not already published and not yet found to be offensive” (id. at p. 445, italics added).

When, as here, an injunction based on past oral statements found to be defamatory, and therefore unprotected by the First Amendment, restrains future speech that, because it has not yet occurred, has not been judicially determined to be unprotected, the high court has held the injunction to be an unconstitutional prior restraint. (Vance v. Universal Amusement Co. (1980) 445 U.S. 308, 311, 316 [ 63 L.Ed.2d 413 , 100 S.Ct. 1156 ]; Near v. Minnesota, supra, 283 U.S. 697 ; see Alexander v. United States, supra, 509 U.S. at p. 550 ; Kingsley Books, Inc. v. Brown, supra, 354 U.S. at p. 445 .) The threat of contempt of court proceedings, which may result in fines and incarceration, necessarily discourages or chills the exercise of free speech and may deter a person from speaking at all. The First Amendment does not permit “banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” (Ashcroft v. Free Speech Coalition (2002) 535 U.S. 234, 255 [ 152 L.Ed.2d 403 , 122 S.Ct. 1389 ].) A prior restraint does more than chill the exercise of free speech: “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559 [ 49 L.Ed.2d 683 , 96 S.Ct. 2791 ].)

In response to plaintiff’s argument that changed circumstances may in the future render true a statement that was in the past false, the majority requires Lemen to seek the trial court’s permission before she speaks by moving to modify the injunction. (Maj. opn., ante, at p. 1161.) Requiring a citizen to obtain government permission before speaking truthfully is “the essence of censorship” directly at odds with the “chief purpose” of the constitutional guarantee of free speech to prevent prior restraints. (Near v. Minnesota, supra, 283 U.S. at p. 713 ; see Kingsley Books, Inc. v. Brown, supra, 354 U.S. at p. 445 .) 1

*1168 Not only does the injunction against Lemen’s future speech offend the basic principles of the First Amendment, it also violates the First Amendment because it is unnecessary, as discussed below.

III

The injunction here is not necessary to protect any compelling state interest or any important public policy. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 165-166 [ 87 Cal.Rptr.2d 132 , 980 P.2d 846 ] (conc, opn. of Werdegar, J.) [compelling state interest in eradicating racial discrimination in workplace]; id.., at p. 180 (dis. opn. of Kennard, J.) [compelling state interest in eradicating invidious employment discrimination].) The injunction in this case serves no significant public interest, such as eliminating invidious racial discrimination in employment, preventing incitement of immediate violence, or protecting national security. Obviously, there is no compelling public or state interest in stopping Lemen from circulating a petition among her neighbors and making disparaging statements about the Village Inn. The injunction only protects plaintiff’s purely private business interests.

Plaintiff has not shown that the injunction is necessary to serve even those private interests, because plaintiff has not demonstrated that monetary damages would be an inadequate remedy. Although plaintiff claimed it suffered a 20 percent loss in business revenue after Lemen circulated her petition among the residents of Balboa Island and orally disparaged the Village Inn, plaintiff did not seek any monetary damages from Lemen. The only relief plaintiff sought was a permanent injunction. Entitlement to such relief, however, requires a showing “that the defendant’s wrongful acts threaten to cause irreparable injuries, ones that cannot be adequately compensated in damages.” (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352 [ 1 Cal.Rptr.3d 32 , 71 P.3d 296 ].) Here, neither plaintiff nor the majority claims that such a showing has been made. The majority is wrong in asserting (maj. opn., ante, at p. 1158) that an injunction may issue without a showing of irreparable injury—that is, that damages are inadequate. The “ ‘extraordinary remedy of injunction’ cannot be invoked without showing the likelihood of irreparable harm.” (Intel Corp. v. Hamidi, supra, at p. 1352.)

The majority relieves plaintiff of its obligation to establish that damages are not an adequate remedy by asserting that a defendant harmed by defamation could be required to bring a series of lawsuits or that damages *1169 would not deter a defendant who is too poor to pay damages or “so wealthy as to be willing to pay any resulting judgments.” (Maj. opn., ante, at p. 1158.) I disagree.

The majority points to nothing in this record that would support the conclusion that, if damages had been awarded, Lemen would again have defamed plaintiff, requiring plaintiff to bring another lawsuit. In the absence of substantial evidence, or any evidence, relevant to this issue, it cannot be assumed that an award of actual damages would not deter Lemen. To the contrary, compensatory damages awards, when added to the high costs of defending lawsuits and the risk of future punitive damage awards, are powerful deterrents.

Nor is there any basis for concluding that Lemen is either too poor to pay damages or so rich that a damage award would not serve as a deterrent. From her ownership of Balboa Island property we may infer that Lemen is not too poor to pay a damage award, and nothing in the appellate record suggests she is so wealthy that a compensatory damage award would not deter her from making defamatory statements about the Village Inn. In addition, so far as I am aware, neither this nor any other court has ever held that a defendant’s wealth can justify a prior restraint on the constitutional right to free speech. (See Willing v. Mazzocone (1978) 482 Pa. 377 [ 393 A.2d 1155, 1158 ] [“In Pennsylvania the insolvency of a defendant does not create a situation where there is no adequate remedy at law”].)

Thus, the injunction here violates the First Amendment to the United States Constitution’s guarantee of free speech for a second reason—because it is unnecessary. Its invalidity is even clearer under the free speech provisions of the California Constitution, provisions that are more stringent than even those of the federal Constitution.

IV

The California Constitution’s guarantee of the right to free speech and press is more protective and inclusive than that contained in the First Amendment to the federal Constitution. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 490-493 [ 101 Cal.Rptr.2d 470 , 12 P.3d 720 ]; Wilson v. Superior Court (1975) 13 Cal.3d 652, 658 [ 119 Cal.Rptr. 468 , 532 P.2d 116 ].) Our constitutional guarantee states: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” (Cal. Const., art. I, § 2, subd. (a).)

This court has long recognized that under our state Constitution’s free speech guarantee (Cal. Const., art. I, § 2, subd. (a)) a person may be held *1170 responsible in damages for what the person says, writes, or publishes but cannot be censored by a prior restraint. “The wording of this section is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely speak, write, and publish his sentiments is unlimited, but he is responsible at the hands of the law for an abuse of that right. He shall have no censor over him to whom he must apply for permission to speak, write, or publish, but he shall be held accountable to the law for what he speaks, what he writes, and what he publishes. 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. The purpose of this provision of the constitution was the abolishment of censorship, and for courts to act as censors is directly violative of that purpose.” (Dailey v. Superior Court (1896) 112 Cal. 94, 97 [ 44 P. 458 ].)

The majority errs in claiming that this court’s interpretation of the state constitutional free speech guarantee in Dailey v. Superior Court, supra, 112 Cal. 94 , is no longer controlling. (Maj. opn., ante, at p. 1159.) Misplaced is the majority’s reliance on this court’s decision in People ex rel. Busch v. Projection Room Theater (1976) 17 Cal.3d 42 [ 130 Cal.Rptr. 328 , 550 P.2d 600 ] (Busch) and on the plurality opinion in Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121 (plur. opn. of George, C. J.). Busch concerned an injunction to prohibit the exhibition of particular obscene magazines and films (Busch, supra, at pp. 48-49 ), not an injunction prohibiting future speech that might or might not be defamatory. Moreover, the majority in Busch did not consider, apply, or even cite our state constitutional provision. With respect to the Aguilar plurality opinion, it made the same fundamental mistakes the majority repeats here. Because it was only a plurality opinion, it lacks authority as precedent.

The injunction at issue here (both as entered by the trial court and as it will be after the majority’s required modifications are made) violates our state Constitution’s free speech guarantee as authoritatively construed in Dailey v. Superior Court, supra, 112 Cal. 94 . As I have explained, the injunction is a prior restraint on future speech; it is overbroad in prohibiting nondefamatory future speech; and it is unnecessary in the absence of proof that compensatory damages would not be an adequate remedy. Moreover, the majority does not cure, but only exacerbates, the injunction’s unconstitutional features by requiring the trial court to act as a censor of Lemen’s future speech. Because our state Constitution prohibits prior restraints and government censorship, the injunction also violates the California Constitution.

I would affirm the judgment of the Court of Appeal.

The concurring opinion asserts that, because California permits collateral attacks on the constitutionality of injunctions, the majority’s decision does not require Lemen to obtain government permission before speaking truthfully. (Conc. opn. of Baxter, 1, ante, at p. 1162.) This assertion implicitly recognizes that the injunction is unconstitutionally overbroad because it enjoins speech whether or not it is truthful. What it fails to recognize, however, is the powerfully chilling effect of an injunction restricting speech. To speak truthfully in violation of the injunction, Lemen must be willing to be cited for contempt, hauled into court, and face *1168 possible incarceration and fines. How many will be bold enough to run those risks? Realistically, the majority’s decision does require persons like Lemen to obtain government permission before speaking truthfully.