Balboa Island Village Inn, Inc. v. Lemen

*1171 WERDEGAR, J., Concurring and Dissenting.

For reasons that will appear, I concur in the disposition. However, finding the majority’s analysis flawed, I otherwise dissent.

A little more than seven years ago, a bare majority of this court “sail[ed] into uncharted First Amendment waters” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 148 [ 87 Cal.Rptr.2d 132 , 980 P.2d 846 ] (conc, opn. of Werdegar, J.) (Aguilar)) and held that despite the free speech guarantee in the First Amendment to the United States Constitution, an injunction prohibiting a person from uttering certain words or phrases in the future was permissible. In that case, the defendant had been found guilty of employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for directing racially derogatory comments at his Latino employees at their workplace. A plurality of three justices found the injunction in Aguilar permissible under the First Amendment because the jury, having found a FEHA violation, necessarily found the defendant’s racial comments were unprotected speech. The plurality reasoned: “[T]he injunction at issue is not an invalid prior restraint, because the order was issued only after the jury determined that defendant^ had engaged in employment discrimination, and the order simply precluded defendant] from continuing [his] unlawful activity.” {Aguilar, at p. 138; see also id. at p. 140 [“once a court has found that a specific pattern of speech is unlawful, an injunctive order ... is not a prohibited ‘prior restraint’ of speech”]; id. at p. 147 [because the speech “had been judicially determined to violate the FEHA,” the injunction “does not constitute an invalid prior restraint of speech”].)

Three justices of this court dissented, each writing separate opinions; all concluded that notwithstanding the jury’s decision finding a FEHA violation, the trial court’s injunction constituted an impermissible prior restraint on speech in violation of the defendant’s First Amendment rights. The late Justice Mosk concluded “the injunction fail[ed] to overcome the heavy presumption against the constitutional validity of prior restraints on speech.” (Aguilar, supra, 21 Cal.4th at p. 173 (dis. opn. of Mosk, J.).) Justice Kennard opined that “the high court’s decisions do not support the broad proposition that viewpoint-based remedial injunctions are exempt from strict First Amendment semtiny simply because they are issued against a person who has once been found to have engaged in speech that produced or contributed to a hostile work environment.” (Id. at p. 186 (dis. opn. of Kennard, J.).) Justice Brown likewise rejected the plurality’s rationale that an adjudication of a FEHA violation justified imposition of the injunction on future speech. (Id. at p. 193 (dis. opn. of Brown, J.).)

*1172 I, too, wrote separately in Aguilar , but a concurrence, not a dissent. Although I found the injunction to be constitutionally permissible in the particular circumstances, I did not join the plurality’s analysis elevating the jury’s FEHA verdict into a constitutional license to enjoin the defendant’s future speech. Instead, recognizing that the case posed two constitutionally protected interests in tension with each other—the defendant’s right to free speech versus the plaintiffs’ right to be free of racial discrimination—I concluded that “[gjiven the constellation of factors present in this case, no clear reason appears why [the defendant’s] free speech rights should predominate over the state’s and the individual plaintiffs’ similarly weighty antidiscrimination interests. H] Balancing [the defendant’s] First Amendment free speech rights with the equally weighty right of [the] plaintiffs to be let alone at their jobsite, free of racial discrimination, I find the several factors coalescing in this case—speech occurring in the workplace, an unwilling and captive audience, a compelling state interest in eradicating racial discrimination, and ample alternative speech venues for the speaker—support the conclusion that the injunction, if sufficiently narrowed on remand to apply to the workplace only, will pass constitutional muster.” (Aguilar, supra, 21 Cal.4th at p. 166 (conc. opn. of Werdegar, J.).)

Because I did not join the plurality opinion in Aguilar , only three justices of this court agreed with the proposition that a jury determination a person’s speech was unlawful (in that case, that the defendant’s speech created a hostile work environment in violation of FEHA), by itself, permitted a court to enjoin that person from engaging in similar speech in the future. Instead, a majority of this court—myself, along with the three Aguilar dissenters— expressly rejected that reasoning. Accordingly, the Court of Appeal below, reading the plurality opinion and my concurring opinion together, accurately characterized Aguilar as “supporting] the principle that a content-based injunction restraining speech is constitutionally valid if the speech has been adjudicated to violate a specific statutory scheme expressing a compelling state interest justifying a prior restraint on speech, or when necessary to protect a right equal in stature to the right of free speech secured by the First Amendment to the United States Constitution.”

Unlike in Aguilar , where we were called on to balance countervailing constitutional concerns with the demands of the First Amendment free speech guarantee, the present case involves a garden-variety defamation under state law. Defendant was shown in a court trial to have made false and defamatory statements to several people, including plaintiff’s customers, regarding activities occurring in plaintiff’s restaurant. She also made false and injurious comments about the cleanliness and wholesomeness of the food served therein. While our Legislature reasonably has determined such utterances are *1173 inimical to the social order and justify a civil remedy, 1 that state interest is not one of federal constitutional dimension and must surrender to the greater constitutional interest as expressed ■ in the First Amendment. Unlike in Aguilar , where the plaintiffs plausibly could argue the Constitution protected their interests as well as the defendants’, plaintiff in this case cannot wield the Constitution as its sword.

Nor are any of the other considerations that rendered Aguilar an unusual case present here. Thus, although the speech in Aguilar occurred at the workplace where “special considerations . . . sometimes permit greater restrictions on First Amendment rights” (Aguilar, supra, 21 Cal.4th at p. 156 (conc. opn. of Werdegar, J.)), defendant Anne Lemen’s speech in this case occurred largely in and around the streets and sidewalks near the restaurant, places that are presumptively open to free speech. (International Soc. for Krishna Consciousness, Inc. v. Lee (1992) 505 U.S. 672, 679 [ 120 L.Ed.2d 541 , 112 S.Ct. 2711 ].) Nor do plaintiff or its customers comprise a captive audience, a circumstance that might justify “greater restrictions on a speaker’s freedom of expression.” (Aguilar, at p. 159 (conc. opn. of Werdegar, J.); Frisby v. Schultz (1988) 487 U.S. 474, 487 [ 101 L.Ed.2d 420 , 108 S.Ct. 2495 ] [“The First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech”].) Plaintiff does not allege defendant uttered her defamatory statements while inside the restaurant, where diners could plausibly claim to be a captive audience. Finally, the injunction prohibiting Lemen from repeating her defamatory statements is not, as in Aguilar , akin to a time, place and manner restriction (Aguilar, at p. 162 (conc. opn. of Werdegar, J.); Madsen v. Women’s Health Center, Inc. (1994) 512 U.S. 753 [ 129 L.Ed.2d 593 , 114 S.Ct. 2516 ]), but is more like a gag order, judicially enforced.

An injunction such as the one imposed in this case, of course, constitutes a prior restraint on speech. (Alexander v. United States (1993) 509 U.S. 544, 550 [ 125 L.Ed.2d 441 , 113 S.Ct. 2766 ] [“permanent injunctions ... are classic examples of prior restraints”].) In the absence of a compelling constitutional interest supporting plaintiff’s interests as well as the unusual aggregation of other factors present in Aguilar, supra, 21 Cal.4th 121 , the traditional First Amendment protection against prior restraints on speech should apply in full. “Any system of prior restraint . . . ‘comes to this Court bearing a heavy presumption against its constitutional validity.’ Bantam Books, Inc. v. Sullivan, 372 U.S. [58], at 70 [ 9 L.Ed.2d 584 , 83 S.Ct. 631 ] [(1963)]; New York Times Co. v. United States, 403 U.S. [713], at 714 [ 29 L.Ed.2d 822 , 91 S.Ct. 2140 ] [(1971)]; [citations]. The presumption against prior restraints is heavier—and the degree of protection broader—than that against limits on expression *1174 imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. 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 (1975) 420 U.S. 546, 558-559 [ 43 L.Ed.2d 448 , 95 S.Ct. 1239 ].)

It has long been the rule that “[a] court cannot enjoin the publication of a libel.” (People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 446 [ 119 Cal.Rptr. 193 , 531 P.2d 761 ].) As the high court explained more than a century ago: “If the publications in the newspapers are false and injurious, he can prosecute the publishers for libel. If a court of equity could interfere and use its remedy of injunction in such cases, it would draw to itself the greater part of the litigation properly belonging to courts of law.” (Francis v. Flinn (1886) 118 U.S. 385, 389 [ 30 L.Ed. 165 , 6 S.Ct. 1148 ]; see also Metropolitan Opera Ass’n, Inc. v. Local 100 (2d Cir. 2001) 239 F.3d 172, 177 [“courts have long held that equity will not enjoin a libel”].) As the Court of Appeal below explained: “This rule rests ‘in large part on the principle that injunctions are limited to rights that are without an adequate remedy at law, and because ordinarily libels may be remedied by damages, equity will not enjoin a libel absent extraordinary circumstances.’ ” This rule is set forth in this state’s statutory law; Code of Civil Procedure section 526, subdivision (a)(4) provides: “An injunction may be granted in the following cases: [f] . . . [f] (4) When pecuniary compensation would not afford adequate relief.”

The majority provides an interesting historical explanation for the long-standing rule that equity will not enjoin defamation. (Maj. opn., ante, at pp. 1156-1157.) But though law and equity courts presided over separate domains hundreds of years ago in England, and our state’s superior courts have more comprehensive jurisdiction today, I do not read the majority opinion as advocating, based on this historical analysis, the wholesale abandonment of the rule against enjoining defamation. More importantly, irrespective of whether modem courts have jurisdiction to enjoin a person’s future statements, in exercising that jurisdiction they must factor in the person’s First Amendment right to free speech, a concern not applicable in the 18th and 19th century English Court of Common Pleas or in our state courts before 1925. (See Gitlow v. New York (1925) 268 U.S. 652, 666 [ 69 L.Ed. 1138 , 45 S.Ct. 625 ] [applying the First Amendment to the states]; Aguilar, supra, 21 Cal.4th at p. 150 (conc. opn. of Werdegar, J.).)

The majority concedes the issue we decide today is of first impression, noting that “[t]he United States Supreme Court has never addressed the *1175 precise question before us—whether an injunction prohibiting the repetition of statements found at trial to be defamatory violates the First Amendment.” (Maj. opn., ante, at p. 1151.) 2 In this legal vacuum, the majority resorts to reasoning by analogy, citing situations in which the United States Supreme Court in resolving “related questions” has approved injunctions on a person’s future speech. (Maj. opn., ante, at p. 1151.) As I explain, the analogies are flawed and the legal authority cited by the majority does not authorize a court to impose an injunction against future defamation.

The majority first analogizes to cases involving speech found to be obscene. (Maj. opn., ante, at pp. 1151-1152.) Those familiar with this area of the law know the high court has traveled a twisting, rocky road during the last 50 years in its attempt to enunciate both a coherent explanation for, and the proper limits on, government suppression of obscene and sexually explicit speech. (See, e.g., Roth v. United States (1957) 354 U.S. 476, 484 [ 1 L.Ed.2d 1498 , 77 S.Ct. 1304 ] [obscenity unprotected by First Amendment if “utterly without redeeming social importance”]; Jacobellis v. Ohio (1964) 378 U.S. 184, 197 [ 12 L.Ed.2d 793 , 84 S.Ct. 1676 ] (conc. opn. of Stewart, J.) [conceding he “perhaps . . . could never succeed in intelligibly” defining obscenity, but opining that “I know it when I see it”]; Miller v. California (1973) 413 U.S. 15 [ 37 L.Ed.2d 419 , 93 S.Ct. 2607 ] [partially overruling Roth and establishing the modem test for obscenity]; Reno v. American Civil Liberties Union (1997) 521 U.S. 844 [ 138 L.Ed.2d 874 , 117 S.Ct. 2329 ] [invalidating portions of the Communications Decency Act of 1996, which attempted to regulate obscenity on the Internet].)

The majority accurately observes the United States Supreme Court has permitted the issuance of injunctions prohibiting defendants from selling books, magazines and films adjudged obscene. (Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49 [ 37 L.Ed.2d 446 , 93 S.Ct. 2628 ]; Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436 [ 1 L.Ed.2d 1469 , 77 S.Ct. 1325 ].) The majority reads these precedents for all they could mean, reasoning that, as with obscenity, once a trier of fact has decided that some particular speech falls within a category unprotected by the First Amendment (here, defendant’s defamatory comments), an injunction is permissible to prohibit future utterances. But Paris Adult Theatre I and Kingsley Books have never been read to authorize such broad limits on speech outside the category of obscene speech. For example, in Snepp v. United States (1980) 444 U.S. 507 [ 62 L.Ed.2d 704 , 100 S.Ct. 763 ], the high court considered an author’s breach of an agreement *1176 with the Central Intelligence Agency to submit his book to the agency for prepublication clearance. In approving equitable relief as a remedy for the breach (in that case a constructive trust on booksale profits rather than an injunction), the high court did not cite any obscenity case in support. The majority today cites no United States Supreme Court case in which Paris Adult Theatre I or Kingsley Books is cited as authority justifying an injunction on future speech outside the area of obscenity.

Moreover, the high court’s approval of injunctive relief for obscenity must be viewed in the larger context, in which it has permitted other forms of government regulation of obscene and sexually explicit speech that would likely be found unconstitutional if applied to other forms of speech. For example, the high court has held it permissible for a state to require all films, subject to certain limitations, be submitted to a censor board before exhibition. (Freedman v. Maryland (1965) 380 U.S. 51 [ 13 L.Ed.2d 649 , 85 S.Ct. 734 ]; see also Alexander v. United States, supra, 509 U.S. 544 [authorizing seizure and destruction of business assets, including nonobscene material, following conviction for selling obscene material]; Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41 [ 89 L.Ed.2d 29 , 106 S.Ct. 925 ] [upholding government zoning to regulate secondary effects of sexually explicit, though not necessarily obscene, speech]; Heller v. New York (1973) 413 U.S. 483 [ 37 L.Ed.2d 745 , 93 S.Ct. 2789 ] [authorizing seizure of a copy of a film even before judicial determination the film is obscene].) We need not here decide whether the court’s approval of these remedial measures aimed at curbing obscene speech is a function of the unique history of the regulation of obscene speech or the somewhat unique commercial and financial incentives 3 connected to such speech. It is enough to conclude that cases addressing the problem of obscene speech are not broadly applicable to all other forms of unprotected speech and thus provide no direct analogy to the question of the permissible remedies for defamation. Accordingly, the mere fact a court may enjoin the sale of a book or film found obscene does not, without more, provide persuasive authority for concluding a court may also enjoin a person from speaking, in the future, words or phrases found in the past to have been defamatory.

*1177 The majority also cites Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413 U.S. 376 [ 37 L.Ed.2d 669 , 93 S.Ct. 2553 ] in support. (Maj. opn., ante, at p. 1152.) But that case posed a plaintiff asserting a counterbalancing constitutional claim (sex discrimination) against a defendant claiming the right to free speech. As the Court of Appeal below recognized, my concurring opinion in Aguilar is “consistent with Pittsburgh Press, which concluded the challenged advertising lost any First Amendment protection because it violated a municipal ordinance prohibiting sex-based discrimination.” Because plaintiff here asserts no such constitutional claim in support, Pittsburgh Press is not at all analogous to the present case and provides no persuasive support for the requested injunction here.

In the absence of any of the unusual factors present in Aguilar, supra, 21 Cal.4th 121 , or any compelling United States Supreme Court authority, it is inescapable that the injunction here is an impermissible prior restraint on defendant’s speech. Although prior restraints on speech are not categorically prohibited in all cases (see, e.g., DVD Copy Control Assn., Inc. v. Burner (2003) 31 Cal.4th 864, 890 [ 4 Cal.Rptr.3d 69 , 75 P.3d 1 ] (conc. opn. of Werdegar, J.) [First Amendment “does not necessarily preclude injunctive relief in trade secret cases”]), the party moving for such relief bears a heavy burden. (See New York Times Co. v. United States, supra, 403 U.S. 713 [the Pentagon Papers case].) Plaintiff does not carry this burden here.

Although plaintiff, a business operating a restaurant, claims it lost money as a result of defendant’s defamatory comments, it has not shown why it cannot be made whole by damages. (Code Civ. Proc., § 526, subd. (a)(4).) If plaintiff lost money, customers or goodwill due to defendant’s defamatory comments, she can be made to pay damages. If, after paying damages, defendant continues to utter defamatory statements and it is proved she did so intentionally and maliciously, the law provides for punitive damages. Defendant has not been shown to be either so rich or so poor that the threat of monetary damages would be an insufficient incentive for her to stop repeating her illegal conduct. Under these circumstances, I am unpersuaded plaintiff has carried its heavy burden of demonstrating the courts may constitutionally enjoin defendant’s future speech.

The Court of Appeal below found the injunction on defendant’s future speech was an unconstitutional prior restraint, largely applying my concurring opinion in Aguilar, supra, 21 Cal.4th 121, 147 . The majority today finds the injunction permissible in theory but overbroad as written, and therefore affirms the Court of Appeal’s judgment reversing the injunction in part. 4 *1178 Because, like the Court of Appeal, I find the injunction to be an impermissible prior restraint, I concur in the majority’s disposition. But because, for the reasons stated, I disagree with the majority’s reasoning, I dissent.

Thus, Civil Code sections 44 to 46 set forth the civil torts of defamation and libel under state law.

The high court recently granted certiorari in a case to decide “ ‘[w]hether a permanent injunction as a remedy in a defamation action, preventing all future speech about an admitted public figure, violates the First Amendment.’ ” (Tory v. Cochran (2005) 544 U.S. 734, 736 [ 161 L.Ed.2d 1042 , 125 S.Ct. 2108 ].) The court vacated and remanded the case without resolving the First Amendment issue because the plaintiff passed away during the pendency of the appeal. (544 U.S. at pp. 738-739.)

See, e.g., New York v. Ferber (1982) 458 U.S. 747, 756, 761 [ 73 L.Ed.2d 1113 , 102 S.Ct. 3348 ] (“States are entitled to greater leeway in the regulation of pornographic depictions of children” in part because the “advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation” (italics added)). (Cf. Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 574 [ 264 Cal.Rptr. 883 ] [“One of the important differences between trade libel on the one hand and defamation on the other, is said to be that ‘because of the economic interest involved, the disparagement of quality may in a proper case be enjoined, whereas personal defamation can not [sic].’ ” (Italics added.)].)

The portion of the injunction restraining defendant from videotaping plaintiff’s business is not addressed by the majority. I therefore also express no opinion on it.