Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, June 10, 2008

California Appellate Court Reverses Injunction As Prior Restraint in Divorce Case, Remands For Further Hearing

A California court of appeal has held that a preliminary injunction prohibiting a wife from publishing statements about her estranged husband on the Internet was "overbroad and constituted an invalid prior restraint prior to trial" and has "reversed the order and remanded for further hearing."

Said the Court, "In challenging the preliminary injunction, Linda raises numerous arguments.  In Part I, we conclude the order must be reversed because it is overbroad, vague, and an unconstitutional prior restraint before trial.  In Part II, we briefly address two of Linda's additional challenges to the preliminary injunction and find them to be without merit. In reaching these conclusions, we apply well-settled law applicable to preliminary injunctions.  To show entitlement to a preliminary injunction, a plaintiff must prove a likelihood of prevailing on the merits, and that the harm to the plaintiff from not granting the injunction outweighs the harm to the defendant if the injunction is issued pending trial....  "The trial court's determination must be guided by a 'mix' of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction."... We are governed by an abuse of discretion standard in determining whether the trial court properly evaluated these factors.  To the extent the analysis depends on a determination of the constitutionality of the injunction, we independently review the question whether the trial court correctly interpreted and applied the applicable constitutional principles....Facts relevant to the constitutional analysis must be reviewed de novo, independent of the trial court's findings."....Even if an injunction does not impermissibly constitute a prior restraint, the injunction must be sufficiently precise to provide `a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.'" An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint....`While [a party] may be held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship.'...The California Supreme Court recently recognized this fundamental principle, but held the rule does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory....In Balboa Island, the court, sitting without a jury, made factual findings that the defendant had repeatedly defamed a business entity (a restaurant), and issued a permanent injunction prohibiting the defendant from making certain specified defamatory statements about the restaurant....Each of the prohibited statements was determined at trial to be false....The California Supreme Court held that although other aspects of the injunction were overbroad, the defendant's "right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory."  ...The court explained:  " 'Once specific expressional acts are properly determined to be unprotected by the first amendment, there can be no objection to their subsequent suppression or prosecution.' "...Thus, "an injunction issued following a trial that determined that the defendant defamed the plaintiff that does no more than prohibit the defendant from repeating the defamation, is not a prior restraint and does not offend the First Amendment."...The court emphasized that "In determining whether an injunction restraining defamation may be issued . . . it is crucial to distinguish requests for preventive relief prior to trial and posttrial remedies to prevent repetition of statements judicially determined to be defamatory. . . .  'The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press. . . .  [¶] . . .  In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted.  The simplest procedure is to add a prayer for injunctive relief to the action for damages . . . .  Since the constitutional problems of a prior restraint are not present in this situation, and the defendant has not been deprived of a jury determination, injunctions should be available as ancillary relief for . . . personal and political defamations.' " ...Under these principles, the court's preliminary injunction prohibiting Linda from publishing any "false and defamatory" statements on the Internet is constitutionally invalid.  Because there has been no trial and no determination on the merits that any statement made by Linda was defamatory, the court cannot prohibit her from making statements characterized only as "false and defamatory."...This portion of the order is also invalid as unconstitutionally vague and overbroad.  The injunction broadly prohibited Linda from publishing any defamatory comments about Thomas.  This sweeping prohibition fails to adequately delineate which of Linda's future comments might violate the injunction and lead to contempt of court....The fact that the court's prohibition on publishing false materials applied only to speech on the Internet does not affect our analysis.  The courts have made clear that speech on the Internet is accorded the same First Amendment protection as speech on other forums....We emphasize that our conclusion should not be interpreted as an opinion on the merits of Thomas's defamation claims.  It is well settled that a plaintiff may recover damages for speech that is proved to be defamatory or libelous.  Additionally, a court may enjoin a defendant after trial from repeating defamatory statements.  The only issue resolved here is that a court may not constitutionally prevent a person from uttering a "defamatory" statement before it has been determined at trial that the statement was defamatory."


"In addition to enjoining "false and defamatory statements," the court also enjoined Linda from "publishing . . . confidential personal information about [Thomas] on the internet." A prohibition against disclosing confidential information constitutes a prior restraint.... However, because it also potentially concerns the countervailing right of privacy protected under the California Constitution (Cal. Const., art. I, § 1), a prohibition may be proper under certain compelling or "extraordinary" circumstances....In determining whether such circumstances exist, courts generally apply a balancing test, weighing the competing privacy and free speech constitutional rights....Relevant factors include whether the person is a public or private figure, the scope of the prior restraint, the nature of the private information, whether the information is of legitimate public concern, the extent of the potential harm if the information is disclosed, and the strength of the private and governmental interest in preventing publication of the information. We cannot determine whether the court properly applied the balancing test in this case because the order is ambiguous as to the meaning of "confidential personal information."  The order does not contain a definition of "confidential personal information" and it is not reasonably possible to determine the scope of this prohibition from any other source.  Without a definition, the injunction is not sufficiently clear to determine whether Thomas's privacy rights to the information substantially outweigh Linda's free speech rights.  Moreover, the reference to "confidential personal information" did not provide Linda with a reasonable basis to understand what she was prohibited from placing on the Internet.  An injunction must clearly define the conduct prohibited....In his appellate briefs, Thomas seeks to justify this portion of the order by suggesting that Linda will place (or has placed) his telephone number, address, and Social Security number on the Internet.  He argues the disclosure of the information will put his safety and well-being in jeopardy, particularly because of his job as a deputy sheriff.  We agree a court would be fully justified in issuing an order preventing a party from putting this type of identifying information about another person on the Internet, particularly where, as here, that person is a law enforcement officer.  To the extent that Thomas seeks such an order and supports this request with evidence, the court would be justified in immediately ordering that this information be kept private.  Such a restriction does not involve information that has any public value and would serve the significant public interest of protecting the safety of a law enforcement officer. However, in the proceedings below, Thomas did not specifically request an order preventing his identifying information from being placed on the Internet.  Instead, Thomas focused primarily on his concern that Linda and/or her mother had placed, or planned to place, information about the divorce proceedings on the Internet, including information that had been contained in the family court file.  However, the mere fact that information is contained in court files or concerns divorce proceedings does not necessarily mean it is confidential and cannot be disclosed....To be sure, certain information relating to family law proceedings may be protected from disclosure, such as information that would harm the best interests of the children if publicly disclosed, information obtained through discovery, and information that would compromise a person's financial security or personal safety.... But an order enjoining the disclosure must be narrowly tailored to protect only these specific interests and should not unnecessarily interfere with a person's free speech rights.... Accordingly, we conclude the order preventing Linda from placing any "confidential personal information" about Thomas on the Internet is vague, overbroad, and not narrowly tailored.  On remand, the court should reevaluate Thomas's request that Linda be enjoined from publishing (or causing to be published) confidential information on the Internet.  After determining the information that Thomas seeks to be kept private, the court should engage in a balancing test to determine whether there is a compelling reason that such information be kept private.  A compelling reason includes, but is not limited to, facts showing the disclosure of information would jeopardize the personal safety of Thomas or his family and/or would lead him to fear for his or his family's personal safety.  If a compelling reason exists, the court should immediately enjoin Linda from publishing the information. "


"The third portion of the challenged preliminary injunction prohibits Linda from contacting the Sheriff's Department concerning Thomas except to call "911 to report criminal conduct." In Balboa Island, the trial court's injunction restricted the defendant from repeating the statements found to be defamatory at trial....The California Supreme Court held these provisions were overbroad, explaining:  "[T]he injunction must not prevent [the defendant] from presenting her grievances to government officials.  The right to petition the government for redress of grievances is 'among the most precious of the liberties safeguarded by the Bill of Rights.'  [Citation.]  Accordingly, [the] paragraph . . . which prohibits [the defendant] 'from making the [specified] defamatory statements about Plaintiff to third persons' must be modified to prohibit [the defendant] 'from making the [specified] defamatory statements about Plaintiff to third persons other than governmental officials with relevant enforcement responsibilities.' "... Similarly in this case, the order prohibiting Linda from communicating with the Sheriff's Department about Thomas except in emergencies about criminal conduct is overbroad.  Reasonably interpreted, the order would prohibit Linda from communicating information to the Sheriff's Department about Thomas which she believes would be relevant to law enforcement concerns.  Even if the information does not directly concern criminal conduct or an emergency, the information may be relevant to public safety issues or to Linda's subjective feelings of personal safety.  Private citizens have the fundamental right to present concerns to government agencies, particularly an agency that has law enforcement jurisdiction over the area in which the citizen resides.... Whether the agency finds these concerns to be valid or substantiated is, of course, a different question. Balanced against the substantial burden on Linda's constitutional petitioning rights resulting from the court's restrictions on her communications with the Sheriff's Department, there was minimal evidence in the record supporting the need for a pretrial injunction on these communications.  First, the record does not show that the complaints were numerous or improper.  In support of his motion, Thomas presented evidence showing only that Linda had made one complaint in April 2005, and another complaint in March 2007 that related to information provided to her by Thomas.  Although Thomas also referenced "defamatory" letters sent to the Sheriff's Department in December 2006, he provided no information that these letters were sent by Linda. Second, the record did not show Thomas would suffer substantial detriment if the injunction was denied pending trial.  Thomas said he "believe[d]" the complaints were the reason that he was not promoted.  However, there was no supporting evidence of this claim.  Thomas did not present any evidence from the Sheriff's Department that the complaints were a factor in the promotion decision, nor did he present any evidence that he was told this was the case.  Thomas also said the "embarrassment" caused by Linda's conduct caused him to decide to "seek a less prominent job" within the Department, and that her complaints "will hinder my ability to conduct my duties and may bring negative light to the department and assignment."  However, these concerns alone do not show a need for injunctive relief pending trial.    Moreover, the record did not support the conclusion that Thomas would prevail on his causes of action challenging Linda's complaints to the Sheriff's Department.  The California Supreme Court has held that a citizen's report to law enforcement personnel seeking investigation of alleged wrongful activities is absolutely privileged. ..." 'An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing.' " ... Additionally, there are less intrusive means to limit Linda's filing false complaints with the Sheriff's Department.  Government agencies can establish reasonable requirements before an individual may be permitted to file a complaint.  If the Sheriff's Department believes the complaints are unwarranted or burdensome, it has the authority to take administrative action to address these problems. ... Based on the record before us, the court's order enjoining Linda from contacting the Sheriff's Department about Thomas absent an emergency was overbroad and was not justified by the evidentiary record.  This conclusion does not suggest any opinion as to whether the court—on a more developed factual record—may issue a permanent injunction limiting Linda's contacts with Thomas's employer after trial." The case is Evans v. Evans, California Court of Appeals, 4th District, Division One.

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