Supreme Court of California Justia
Docket No. S127904A

Balboa Island Inn v. Lemen

Filed 4/26/07 (Reposted same date to reflect additional signatories to conc. opn. of Baxter, J., omitted by
clerical error.)



IN THE SUPREME COURT OF CALIFORNIA



BALBOA ISLAND VILLAGE INN, INC., )


Plaintiff and Respondent,

S127904

v.

Ct.App. 4/3 G031636

ANNE LEMEN,

) Orange

County

Defendant and Appellant.

Super. Ct. No. 01CC13243



Following a court trial in which defendant Anne Lemen was found to have

repeatedly defamed plaintiff Balboa Island Village Inn, Inc., the superior court

issued a permanent injunction prohibiting defendant from, among other things,

repeating certain defamatory statements about plaintiff. For the reasons that

follow, we hold that the injunction is overly broad, but that 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.

FACTS

Aric Toll owns and manages the Balboa Island Village Inn, a restaurant and

bar located on Balboa Island in Newport Beach. He bought it on November 30,

2000, but the Village Inn has been operating at that location for more than half a

century.

1


In 1989, defendant Anne Lemen purchased the “Island Cottage,” which lies

across an alley from the Village Inn. She lives there part of the time and rents the

cottage as a vacation home part of the time. Lemen is a vocal critic of the Village

Inn and has contacted the authorities numerous times to complain of excessive

noise and the behavior of inebriated customers leaving the bar. In an effort to

document these abuses, Lemen videotaped the Inn approximately 50 times.

According to Lemen, she made these videotapes while on her own property,

although she acknowledged that, on one occasion, she parked her Volkswagen bus

across from the Inn and videotaped from there.

The Village Inn introduced evidence that Lemen’s actions were far more

intrusive. For more than two years, Lemen parked across from the Inn at least one

day each weekend and made videotapes for hours at a time. Customers often

asked Lemen not to videotape them as they entered or left the building. Numerous

times, she followed customers to or from their cars while videotaping them. She

took many flash photographs through the windows of the Inn a couple of days

each week for a year, upsetting the customers. She called customers “drunks” and

“whores.” She told customers entering the Inn, “I don’t know why you would be

going in there. The food is shitty.” She approached potential customers outside

the Inn more than 100 times, causing many to turn away. One time, she stopped

her vehicle in front of the Village Inn and sounded her horn for five seconds.

Lemen had several encounters with employees of the Village Inn. She told

bartender Ewa Cook that Cook “worked for Satan,” was “Satan’s wife,” and was

“going to have Satan’s children.” She asked musician Arturo Perez if he had a

“green card” and asked whether he knew there were illegal aliens working at the

Inn. Lemen referred to Theresa Toll, the owner’s wife, as “Madam Whore” and

said, in the presence of her tenant, Larry Wilson: “Everyone on the island knows

2

you’re a whore.” Three times, Lemen took photographs of cook Felipe Anaya and

other employees while they were changing clothes in the kitchen.

Lemen collected 100 signatures on a petition opposing the Village Inn. As

she did so, she told neighbors that there was child pornography and prostitution

going on in the Inn, and that the Village Inn was selling drugs and was selling

alcohol to minors. She said that sex videos were being filmed inside the Village

Inn, that it was involved with the Mafia, that it encouraged lesbian activity, and

that the Inn stayed open until 6:00 a.m. When defendant began collecting

signatures door to door and making these statements, the Village Inn’s sales

dropped more than 20 percent.

On October 16, 2001, the Village Inn filed a civil complaint that, as

amended, alleged causes of action for nuisance, defamation, and interference with

business and sought injunctive relief against defendant. Following a court trial,

the superior court entered judgment for plaintiff on October 11, 2002 granting a

permanent injunction. Paragraph 4 of the injunction states:

“[T]he court orders that Lemen, her agents, all persons acting on her behalf

or purporting to act on her behalf and all other persons in active concert and

participation with her, be and hereby are, permanently enjoined from engaging in

or performing directly or indirectly, any of the following acts:

“A. Defendant is prohibited from initiating contact with individuals known

to Defendant to be employees of Plaintiff. Any complaints Defendant has

regarding Plaintiff or Plaintiff’s business must be communicated to a member or

members of Plaintiff’s management, who will be identified by Plaintiff for

Defendant and for which Plaintiff will provide Defendant a phone number by

which Defendant can timely and easily communicate any problems related to

Plaintiff’s operation.

3

“B. Defendant is prohibited from making the following defamatory

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.

“C. Defendant is prohibited from filming (whether by video camera or still

photography) within 25 feet of the premises of the Balboa Island Village Inn

unless Defendant engages in such filming while on Defendant’s own property. An

exception to this prohibition occurs when Defendant is documenting the

circumstances surrounding an immediate disturbance or damage to her property.

An example of this exception might involve Defendant’s attempt to gather

evidence regarding the mechanism and identity of any person who breaks the

window of Defendant’s house.”

The Court of Appeal upheld paragraph 4C of the judgment, which granted

an injunction prohibiting defendant from filming within 25 feet of the Village Inn,

but invalidated paragraphs 4A and 4B of the judgment enjoining defendant from

initiating contact with employees of the Village Inn and repeating the identified

defamatory statements about the Village Inn, ruling that those portions of the

judgment violated defendant’s right to free speech under the federal and California

Constitutions. We granted review.

We agree with the result reached by the Court of Appeal, but disagree in

part with its reasoning. Paragraph 4A, which prohibits defendant from initiating

contact with employees of the Village Inn at any time or place, is impermissibly

broad. Paragraph 4B, which prohibits defendant from repeating certain

defamatory statements, also is overly broad, but a properly limited injunction

prohibiting defendant from repeating to third persons statements about the Village

4

Inn that were determined at trial to be defamatory would not violate defendant’s

right to free speech.

DISCUSSION

The First Amendment to the United States Constitution provides that

“Congress shall make no law . . . abridging the freedom of speech . . . .” This

fundamental right to free speech is “among the fundamental personal rights and

liberties which are protected by the Fourteenth Amendment from invasion by state

action.” (Lovell v. Griffin (1938) 303 U.S. 444, 450; Gitlow v. New York (1925)
268 U.S. 652, 666.) Numerous decisions have recognized our “profound national

commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open.” (New York Times Co. v. Sullivan (1964) 376 U.S. 254,

270.)

But the right to free speech, “[a]lthough stated in broad terms, . . . is not

absolute.” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134

(plur. opn. of George, C. J.).) “Liberty of speech . . . is . . . not an absolute right,

and the State may punish its abuse.” (Near v. Minnesota (1931) 283 U.S. 697,

708.) “The First Amendment presupposes that the freedom to speak one’s mind is

not only an aspect of individual liberty – and thus a good unto itself – but also is

essential to the common quest for truth and the vitality of society as a whole.

Under our Constitution, ‘there is no such thing as a false idea. However

pernicious an opinion may seem, we depend for its correction not on the

conscience of judges and juries, but on the competition of other ideas.’ [Citation.]

Nevertheless, there are categories of communication and certain special utterances

to which the majestic protection of the First Amendment does not extend, because

they ‘are no essential part of any exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may be derived from them is clearly

outweighed by the social interest in order and morality.’ [Citation.] [¶] Libelous

5

speech has been held to constitute one such category, [citation] . . . .” (Bose Corp.

v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 503-504; Ashcroft v. Free

Speech Coalition (2002) 535 U.S. 234, 245-246 [“The freedom of speech has its

limits; it does not embrace certain categories of speech, including defamation

. . . .”]; R.A.V. v. St. Paul (1992) 505 U.S. 377, 382-383; Beauharnais v. Illinois

(1952) 343 U.S. 250, 255-257, 266 [“Libelous utterances not being within the area

of constitutionally protected speech . . . .”] Chaplinsky v. New Hampshire (1942)
315 U.S. 568, 571-572.)1

Defendant in the present case objects to the imposition of an injunction

prohibiting her from repeating statements the trial court determined were

slanderous, asserting the injunction constitutes an impermissible prior restraint.

We disagree. As explained below, 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 prohibition against prior restraints on freedom of expression is rooted

in the English common law, but originally applied only to freedom of the press. In

1769, Blackstone explained in his Commentaries on the Laws of England that

when printing first was invented in 1476, the press was entirely controlled by the

government2, at first through the granting of licenses and later by the decrees of

the star chamber: “The art of printing, soon after its introduction, was looked upon


1

The limitations upon actions for defamation brought by public figures do

not apply here. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 344-346.)
2

Meyerson, The Neglected History of the Prior Restraint Doctrine:

Rediscovering the Link Between the First Amendment and Separation of Powers
(2001) 34 Ind. L. Rev. 295, 298-305 (providing a history of prior restraints on the
press in England).

6

(as well in England as in other countries) as merely a matter of state, and subject

to the coercion of the crown. It was therefore regulated with us by the king’s

proclamations, prohibitions, charters of privilege and of licence, and finally by the

decrees of the court of starchamber; which limited the number of printers, and of

presses which each should employ, and prohibited new publications unless

previously approved by proper licensers.” (4 Blackstone’s Commentaries 152,

fn. a.) Blackstone observed that subjecting “the press to the restrictive power of a

licenser” restricted freedom of expression. (Id. at p. 152.) It was only in 1694,

Blackstone explained, after the end of the star chamber, that “the press became

properly free . . . and has ever since so continued.” (Id. at p. 152, fn. a.)

But the freedom granted to the press to print what it pleased without first

having to obtain permission did not mean that government could not punish the

press if it abused that privilege. Blackstone observed that in imposing criminal

penalties for libel, “the liberty of the press, properly understood, is by no means

infringed or violated. The liberty of the press is indeed essential to the nature of a

free state: but this consists in laying no previous restraints upon publications, and

not in freedom from censure for criminal matter when published. Every freeman

has an undoubted right to lay what sentiments he pleases before the public: to

forbid this, is to destroy the freedom of the press: but if he publishes what is

improper, mischievous, or illegal, he must take the consequence of his own

temerity.” (4 Blackstone’s Commentaries 151-152.)

It was this former practice of the English government of licensing the press

that inspired the First Amendment’s prohibition against prior restraints: “When

the first amendment was approved by the First Congress, it was undoubtedly

intended to prevent government’s imposition of any system of prior restraints

similar to the English licensing system under which nothing could be printed

without the approval of the state or church authorities.” (Tribe, American

7

Constitutional Law (2d ed. 1988) § 12-34, p. 1039.) As another noted

commentator has explained: “The First Amendment undoubtedly was a reaction

against the suppression of speech and of the press that existed in English society.

Until 1694, there was an elaborate system of licensing in England, and no

publication was allowed without a government granted license. . . . It is widely

accepted that the First Amendment was meant, at the very least, to abolish such

prior restraints on publication.” (Chemerinsky, Constitutional Law Principles and

Policies (2d ed. 2002) § 11.1.1, p. 892, fn. omitted.)

This prohibition against prior restraints of the press led to the rule that the

publication of a writing could not be prevented on the grounds that it allegedly

would be libelous. In 1839, the New York Court of Chancery refused to prevent

the publication of a pamphlet that allegedly would have defamed the plaintiff,

holding that the publication of a libel could not be enjoined “without infringing

upon the liberty of the press, and attempting to exercise a power of preventative

justice which . . . cannot safely be entrusted to any tribunal consistently with the

principles of a free government.” (Brandreth v. Lance (1839) 8 Paige 23, 26,

italics added.) The court noted that the “court of star chamber in England[3] . . .

was undoubtedly in the habit of restraining the publication of such libels by

injunction. Since that court was abolished, however, I believe there is but one

case upon record in which any court, either in this country or in England, has

attempted, by an injunction or order of the court, to prohibit or restrain the

publication of a libel, as such, in anticipation.” (Brandreth v. Lance, supra, at p.

26.) The court refused, therefore, to prevent the defendants from publishing the


3

Which, the court noted in colorful language, “once exercised the power of

cutting off the ears, branding the foreheads, and slitting the noses of libellers of
important personages.” (Brandreth v. Lance, supra, 8 Paige 23, 26.)

8

pamphlet, but left them with this warning: “And if the defendants persist in their

intention of giving this libelous production to the public, [the plaintiff] must have

his remedy by a civil suit in a court of law; or by instituting a criminal

prosecution, to the end that the libelers, upon conviction, may receive their

appropriate punishment, in the penitentiary or otherwise.” (Id. at p. 28.)

But preventing a person from speaking or publishing something that,

allegedly, would constitute a libel if spoken or published is far different from

issuing a posttrial injunction after a statement that already has been uttered has

been found to constitute defamation. Prohibiting a person from making a

statement or publishing a writing before that statement is spoken or the writing is

published is far different from prohibiting a defendant from repeating a statement

or republishing a writing that has been determined at trial to be defamatory and,

thus, unlawful. This distinction is hardly novel.

In 1878, the English Court of Common Pleas upheld a posttrial injunction

prohibiting the repetition of a libel. The plaintiffs in Saxby v. Easterbrook (1878)

3 C.P.D. 339 were a firm of engineers that had applied for a patent for a railway

device. The defendants printed a statement claiming they had invented the device

and the plaintiffs had stolen it from them. The plaintiffs sued and were awarded

damages and an injunction restraining the defendants from “repetitions of acts of

the like nature.” (Id. at p. 341.) The English Court of Common Pleas affirmed the

judgment. Lord Coleridge wrote: “I can well understand a court of Equity

declining to interfere to restrain the publication of that which has not been found

by a jury to be libelous. Here, however, the jury have found the matter

complained of to be libelous . . . .” (Id. at p. 342.) Judge Lindley agreed, stating

that “when a jury have found the matter complained of to be libelous . . . , I see no

principle by which the court ought to be precluded from saying that the repetition

of the libel shall be restrained.” (Id. at p. 343.)

9

An early case in Missouri reached the same conclusion, stating: “After

verdict in favor of the plaintiffs, they can have an injunction to restrain any further

publication of that which the jury has found to be an actionable libel or slander.”

(Flint v. Smoke Burner Co. (Mo. 1892) 19 S.W. 804, 806.) And in 1916, Roscoe

Pound noted in an article in the Harvard Law Review that English courts would

allow “an injunction in case the libel was repeated or publication was continued

after a jury had found the matter libelous.” (Pound, Equitable Relief Against

Defamation and Injuries to Personality (1916) 29 Harv. L.Rev. 640, 665,

fn. omitted.)

The Court of Appeal in the present case based its contrary conclusion that

the injunction was an invalid prior restraint of speech on language in Near v.

Minnesota, supra, 283 U.S. 697. Only when taken out of context, however, does

the language in Near support the Court of Appeal’s conclusion.

In Near v. Minnesota, supra, 283 U.S. 697, 702, the high court considered a

statute that permitted a court to enjoin as a nuisance the publication of a

“malicious, scandalous and defamatory newspaper” or other periodical. The

district court had found that several editions of a newspaper, The Saturday Press,

“were ‘chiefly devoted to malicious, scandalous and defamatory articles’ ”

concerning the Mayor and the Chief of Police of Minneapolis, as well as the

county attorney and other officials. (Id. at p. 706.) The court “ ‘abated’ ” The

Saturday Press as a public nuisance and defendant was “perpetually enjoined”

from publishing “ ‘any publication whatsoever which is a malicious, scandalous or

defamatory newspaper.’ ” (Ibid.)

The high court in Near recognized that prohibiting the future publication of

a newspaper or other periodical “is of the essence of censorship.” (Near v.

Minnesota, supra, 283 U.S. 697, 713.) The court stated that the “chief purpose” of

the guarantee of liberty of the press is “to prevent previous restraints upon

10

publication.” (Id. at p. 713.) The high court was careful to point out, however,

that the statute being considered was “not aimed at the redress of individual or

private wrongs. Remedies for libel remain available and unaffected.” (Id. at

p. 709.) The court also observed that “the common law rules that subject the

libeler to responsibility . . . are not abolished by the protection extended in our

constitutions.” (Id. at p. 715.) But most significant is that the court, after noting

that “the protection even as to previous restraint is not absolutely unlimited,”

clarified that it was not addressing “questions as to the extent of authority to

prevent publications in order to protect private rights according to the principles

governing the exercise of the jurisdiction of courts of equity.” (Id. at p. 716, fn.

omitted.) In a footnote, the court cited the above-quoted article by Roscoe Pound

that observed that English courts permit “an injunction in case the libel was

repeated or publication was continued after a jury had found the matter libelous.”

(Pound, Equitable Relief Against Defamation and Injuries to Personality, supra,

29 Harv. L.Rev. at p. 665.) Therefore, Near expressly did not address the issue

posed in the present case.4

The United States Supreme Court has never addressed the precise question

before us – whether an injunction prohibiting the repetition of statements found at


4

A law review article from half a century ago recognized that the injunction

in Near “was directed against the total silencing of the newspaper. An entirely
different problem is presented when, for example, a plaintiff asks merely that a
defendant be enjoined from distributing particular defamatory statements already
in print. An injunction of the latter type would be no more objectionable as a
restriction of free speech than punishment of defamation by punitive damage
awards and criminal libel prosecutions. In neither case is the inhibition one upon
speech in general, but only upon a specific group of words which have been
adjudged to be beyond the range of constitutional protection.” (Note,
Developments in the Law of Defamation (1956) 69 Harv. L.Rev. 874, 944 fns.
omitted.)

11

trial to be defamatory violates the First Amendment. But several high court

decisions have addressed related questions, and each is consistent with our holding

that a court may enjoin the repetition of a statement that was determined at trial to

be defamatory.

The decision in Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, 437,

upheld a state law authorizing a “ ‘limited injunctive remedy’ ” prohibiting “the

sale and distribution of written and printed matter found after due trial to be

obscene.” The high court rejected the defendant’s argument that issuance of an

injunction “amounts to a prior censorship” in violation of the First Amendment

(id. at p. 440), quoting Near v. Minnesota, supra, 283 U.S. 697, 716 for the

proposition that “ ‘the protection even as to previous restraint is not absolutely

unlimited.’ ” (Kingsley Books, supra, 354 U.S. at p. 441.) The high court

recognized that the term “prior restraint” cannot be applied unthinkingly: “The

phrase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a

talismanic test.” (Ibid.) The court pointed out that the defendants in Kingsley

Books “were enjoined from displaying for sale or distributing only the particular

booklets theretofore published and adjudged to be obscene.” (Id. at p. 444.) This

fact distinguished Kingsley Books from the decision in Near v. Minnesota, supra,
283 U.S. 697, which had ruled that the abatement as a public nuisance of a

newspaper was an invalid prior restraint, noting that the abatement in Near

“enjoin[ed] the dissemination of future issues of a publication because its past

issues had been found offensive,” which is “ ‘the essence of censorship.’ ”

(Kingsley Books, supra, 354 U.S. at p. 445.) The high court in Kingsley Books

observed that the injunction was “glaringly different” from the prior restraint in

Near, because it “studiously withholds restraint upon matters not already

published and not yet found to be offensive.” (354 U.S. at p. 445.)

12

Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 55 upheld a Georgia

statute authorizing an injunction prohibiting the exhibition of obscene materials

because the statute “imposed no restraint on the exhibition of the films involved in

this case until after a full adversary proceeding and a final judicial determination

by the Georgia Supreme Court that the materials were constitutionally

unprotected.”

Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413 U.S. 376 held that

an order forbidding a newspaper from publishing “help wanted” advertisements in

gender-designated columns was not a prohibited prior restraint on expression. A

city ordinance had been interpreted to forbid such segregation of advertisements as

unlawful sexual discrimination in employment. The high court held that the First

Amendment did not protect such illegal conduct, stating: “We have no doubt that a

newspaper constitutionally could be forbidden to publish a want ad proposing a

sale of narcotics or soliciting prostitutes.” (413 U.S. at p. 388.) The court held

that the order was not a prohibited prior restraint on expression, noting that it

never had held that all injunctions against newspapers were impermissible: “The

special vice of a prior restraint is that communication will be suppressed . . .

before an adequate determination that it is unprotected by the First Amendment.

[¶] The present order does not endanger arguably protected speech. Because the

order is based on a continuing course of repetitive conduct, this is not a case in

which the Court is asked to speculate as to the effect of publication. [Citation.]”

(413 U.S. at p. 390; see also Madsen v. Women’s Health Center, Inc. (1994) 512

U.S. 753, 764, fn. 2 [“Not all injunctions that may incidentally affect expression,

however, are ‘prior restraints’ in the sense that the term was used in New York

Times Co. [v. United States (1971) 403 U.S. 713] or Vance [v. Universal

Amusement Co. (1980) 445 U.S. 308]”].)

13

In each of these cases, the high court held an injunctive order prohibiting

the repetition of expression that had been judicially determined to be unlawful did

not constitute a prohibited prior restraint of speech. (See Kramer v. Thompson (3d

Cir. 1991) 947 F.2d 666, 675 [“The United States Supreme Court has held

repeatedly that an injunction against speech generally will not be considered an

unconstitutional prior restraint if it is issued after a jury has determined that the

speech is not constitutionally protected.”]; see DVD Copy Control Assn., Inc. v.

Bunner (2003) 31 Cal.4th 864, 891-892 (conc. opn. of Moreno, J.) [“a preliminary

injunction poses a danger that permanent injunctive relief does not; that potentially

protected speech will be enjoined prior to an adjudication on the merits of the

speaker’s or publisher’s First Amendment claims”].)

Decisions of two federal courts echo this conclusion. Auburn Police Union

v. Carpenter (1st Cir. 1993) 8 F.3d 886, upheld an injunction under a Maine

statute that prohibited solicitations for the benefit of a law enforcement officer,

agency, or association, rejecting the argument that an injunction against such

solicitation necessarily would constitute an invalid prior restraint on expression:

“The Supreme Court . . . ‘has never held that all injunctions are impermissible.’

[Citation.] ‘The special vice of a prior restraint is that communication will be

suppressed, either directly or by inducing excessive caution in the speaker, before

an adequate determination that it is unprotected by the First Amendment.’

[Citation.] An injunction that is narrowly tailored, based upon a continuing course

of repetitive speech, and granted only after a final adjudication on the merits that

the speech is unprotected does not constitute an unlawful prior restraint.” (Id. at

p. 903; Haseotes v. Cumberland Farms, Inc. (Bankr. D.Mass. 1997) 216 B.R. 690,

695.)

In Lothschuetz v. Carpenter (6th Cir. 1990) 898 F.2d 1200, the district

court awarded nominal damages after finding that the defendant had repeatedly

14

libeled the plaintiffs but denied the plaintiffs’ request for an injunction, ruling that

it would constitute “an unwarranted prior restraint on freedom of speech.” (Id. at

p. 1206.) The Court of Appeals reversed, stating that “in view of [the defendant]’s

frequent and continuing defamatory statements, an injunction is necessary to

prevent future injury to [the plaintiff]’s personal reputation and business relations.

[Citations.]” (Id. at pp. 1208-1209 (conc. & dis. opn. of Wellford, J.).)5 The

Court of Appeals majority made clear that it “would limit the application of such

injunction to the statements which have been found in this and prior proceedings

to be false and libelous.” (Ibid.)

The highest courts of several of our sister states have reached the same

conclusion. The Ohio Supreme Court upheld a complaint that sought injunctive

relief to prohibit the defendant from repeating statements after those statements

were proven at trial to be defamatory. The court held: “Once speech has

judicially been found libelous, if all the requirements for injunctive relief are met,

an injunction for restraint of continued publication of that same speech may be

proper. The judicial determination that specific speech is defamatory must be

made prior to any restraint. [Citation.]” (O’Brien v. University Community

Tenants Union, Inc. (1975) 42 Ohio St. 2d 242, 245 [327 N.E.2d 753, 755].)

The Georgia Supreme Court upheld an injunction issued following a jury

trial in a libel case that prohibited the repetition of the statements found to be

defamatory. The plaintiff in Retail Credit Company v. Russell (1975) 234 Ga. 765

[218 S.E.2d 54] discovered that the defendant credit reporting company had

published a report erroneously stating the plaintiff had been fired from a previous


5

Judge Wellford’s concurring and dissenting opinion was joined by Judge

Hull and, thus, is “the opinion of the court on this issue.” (Lothschuetz v.
Carpenter
, supra, 898 F.2d 1200, 1206.)

15

job for stealing from his former employer. The plaintiff provided to the defendant

a letter from his former employer completely refuting this libel. The jury found

that the defendant promised to retract the statement, but failed to do so and, in fact,

distributed further reports that repeated the libel. The jury awarded $15,000 in

damages to the plaintiff, and the trial court “entered a narrowly-drawn order

enjoining Retail Credit from the further publication of the adjudicated libel.” (Id.,

218 S.E.2d at p. 56.) The Georgia Supreme Court rejected Retail Credit’s claim

that the injunction constituted an unconstitutional prior restraint on expression,

stating: “The jury verdict necessarily found the statements of Retail Credit to have

been false and defamatory, and the evidence authorized a conclusion that the libel

had been repetitive. . . . Thus, prior to the issuance of the injunction ‘an adequate

determination [was made] that it is unprotected by the First Amendment’; the

‘order is based on a continuing course of repetitive conduct’; and ‘the order is

clear and sweeps no more broadly than necessary.’ [Citation.] The protections

recognized in Pittsburgh Press have been accorded Retail Credit and this

injunction is not subject to the complaints made of it.” (Id. at pp. 62-63.) The

court added: “ ‘The present order does not endanger arguably protected speech.

Because the order is based on a continuing course of repetitive conduct, this is not

a case in which the court is asked to speculate as to the effect of publication.’ ”

(Id. at p. 62.)

The Supreme Court of Minnesota upheld an injunction issued following a

jury trial that prohibited further publication of a book and a document that had

been determined at trial to contain defamatory statements. “[C]ourts have . . .

upheld the suppression of libel, so long as the suppression is limited to the precise

statements found libelous after a full and fair adversary proceeding. [Citations.]

We therefore hold that the injunction below, limited as it is to material found

either libelous or disparaging after a full jury trial, is not unconstitutional and may

16

stand.” (Advanced Training Systems, Inc. v. Caswell Equipment Co., Inc. (Minn.

1984) 352 N.W.2d 1, 28-29.)

In Sid Dillon Chevrolet v. Sullivan (1997) 251 Neb. 722 [559 N.W.2d 740],

the Nebraska Supreme Court overturned an injunction issued prior to trial that

prohibited speech, quoting the “general rule” that “equity will not enjoin a libel or

slander.” (Id., 559 N.W.2d at p. 746.) Among the reasons for this general rule, is

that “the defendant would be deprived of the right to a jury trial concerning the

truth of his or her allegedly defamatory publication.” (Ibid.) The court

recognized, however, that this general rule does not necessarily apply to an

injunction prohibiting speech that is issued following a trial at which the

statements have been found to be unlawful: “Some jurisdictions have concluded

that an order enjoining further publication of libelous or slanderous material does

not constitute a prior restraint on speech where there has been a full and fair

adversarial proceeding in which the complained of publications were found to be

false or misleading representations of fact prior to the issuance of injunctive relief.

[Citations.]” (Ibid.) Accordingly, the court carefully limited its holding to

injunctions issued prior to trial: “We adopt the view of those jurisdictions that

have considered the issue and hold that absent a prior adversarial determination

that the complained of publication is false or a misleading representation of fact,

equity will not issue to enjoin a libel or slander . . . .” (Id. at p. 747, italics added;

Nolan v. Campbell (2004) 13 Neb.App. 212, 226 [690 N.W.2d 638, 652] [“Here,

the restraint via the injunction is permissible because the speech had been

adjudicated to be libelous and therefore not to be protected under the First

Amendment. Therefore, the trial court did not err in issuing an injunction.”]; see

also Annot., Injunction as Remedy Against Defamation of Person (1956) 47

A.L.R.2d 715, 728 [“It may be argued that the constitutionally guaranteed rights

of free speech and trial by jury are not infringed by equitable interference with the

17

right of publication where the defamatory nature of the publications complained of

has once been established by a trial at law, and the plaintiff seeks to restrain

further similar statements.”]; 42 AmJur.2d (2000) Injunctions § 96, p. 691 [“Once

speech has judicially been found libelous, if all the requirements for injunctive

relief are met, an injunction for restraint of continued publication of that same

speech may be proper.”].)

Accordingly, we hold that, following a trial at which it is determined that

the plaintiff defamed the defendant, the court may issue an injunction prohibiting

the defendant from repeating the statements determined to be defamatory.

(Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121, 140 (plur. opn. of

George, C. J.) [“[O]nce a court has found that a specific pattern of speech is

unlawful, an injunctive order prohibiting the repetition, perpetuation, or

continuation of that practice is not a prohibited ‘prior restraint’ of speech.

[Citation.]”].) Such an injunction, issued only following a determination at trial

that the enjoined statements are defamatory, does not constitute a prohibited prior

restraint of expression. “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.” (Tribe, American Constitutional Law,

supra, § 12-37, pp. 1054-1055; Redish, The Proper Role of the Prior Restraint

Doctrine in First Amendment Theory (1984) 70 Va. L.Rev. 53, 55 [“in certain

instances prior restraints are appropriately disfavored . . . because of the

coincidental harm to fully protected expression that results from the preliminary

restraint imposed prior to a decision on the merits of a final restraint. . . . Such

interim restraints present a threat to first amendment rights . . . that expression will

be abridged . . . prior to a full and fair hearing before an independent judicial

forum to determine the scope of the speaker’s constitutional right.”].)

18

Lemen argues that damages are the sole remedy available for defamation,

stating: “The traditional rule of Anglo-American law is that equity has no

jurisdiction to enjoin defamation.”6 But, as Lemen acknowledges, this general

rule “was established in eighteenth-century England.” At that time, the courts of

law and the courts of equity were separate.7 This long-since-abandoned

separation of the courts of law and equity accounts for the general rule that equity

will not enjoin defamation. As one commentator has explained: “By the end of

the Fifteenth Century, complaints against defamation were heard in two different

courts, the Star Chamber and the common-law courts. . . . [¶] . . . [¶] When the

Star Chamber was abolished in 1641, the common-law courts assumed its former

jurisdiction over defamation . . . . [¶] The courts of equity, accordingly, were

denied authority to hear claims for defamation. As early as 1742, it was ruled in

the St. James’s Evening Post Case, that the courts of equity had no jurisdiction

over claims of libel and slander: ‘For whether it is a libel against the publick or

private persons, the only method is to proceed at law.” Since the common-law


6

The general rule upon which Lemen relies is not universally accepted. As

one commentator has observed: “Upon the question of relief by injunction against
the publication of defamatory statements affecting the character or business of
persons, the authorities both in England and America present a noticeable want of
uniformity, and are indeed wholly irreconcilable.” (Newell, Libel and Slander (2d
ed. 1898) p. 246a.)
7

“English equity as a system administered by a tribunal apart from the

established courts made its first appearance in the reign of Edward I . . . .” (30A
C.J.S. (1992) Equity, § 3, p. 162.) “For centuries law and equity were
administered in England by two separate and distinct sets of courts, each applying
exclusively its own system of jurisprudence, and following its own system of
procedure, but, by statute and constitutional provision, this dual system of
administration was abolished and provision was made for the administration of
equity in a consolidated court.” (Id., § 4, p. 163.) Separate courts of equity were
abolished in England in 1873. (27A Am.Jur.2d (1996) Equity, § 3, p. 521.)

19

courts then had no power at all to grant injunctions, the resultant ruling meant that,

in England, defamation could not be enjoined; the only permissible remedy was

money damages at law. . . . [¶] Thus, an extraordinarily important rule was created

more as an offshoot of a jurisdictional dispute than as a calculated understanding

of the needs of a free press. In fact, the creation of the rule that equity will not

enjoin a libel parallels the almost anti-climatic ending of licensing of the press.

These were both ‘historical accidents’ . . . .” (Meyerson, The Neglected History of

the Prior Restraint Doctrine: Rediscovering the Link Between the First

Amendment and Separation of Powers (2001) 34 Ind. L. Rev. 295, 309-311, fns.

omitted.)8

Further, as some of the authorities cited by Lemen acknowledge, the

general rule that a defamation may not be enjoined does not apply in a

circumstance such as that in the present case in which an injunction is issued to

prevent a defendant from repeating statements that have been judicially

determined to be defamatory. For example, after stating that “[a]s a general rule,

an injunction will not lie to restrain a libel or slander” (43A C.J.S. (2004)

Injunctions, § 255, p. 283), Corpus Juris Secundum clarifies that this general rule

does not apply in circumstances like those in the present case: “After an action at

law in which there is a verdict finding the statements published to be false, the

plaintiff on a proper showing may have an injunction restraining any further

publication of the matter which the jury has found to be acts of libel or slander


8

“ ‘Prior to the Common-Law Procedure Act 1854, no court could grant any

injunction in a case of libel. The Court of Chancery could grant no injunction in
such a case, because it could not try a libel. Neither could courts of common law
until the Common-Law Procedure Act of 1854, because they had no power to
grant injunctions.’ ” (American Malting Co. v. Keitel (2d Cir. 1913) 209 F. 351,
354.)

20

. . . .” (Id. at § 255, p. 284.) To the same effect, the annotation written by W. E.

Shipley and cited by Lemen states as a general rule “that equity will not grant an

injunction against publication of a personal libel or slander” (Annot., Injunction as

Remedy Against Defamation of Person, supra, 47 A.L.R. 715, 716) but also

acknowledges: “It may be argued that the constitutionally guaranteed rights of

free speech and trial by jury are not infringed by equitable interference with the

right of publication where the defamatory nature of the publications complained of

has once been established by a trial at law, and the plaintiff seeks to restrain

further similar statements.” (Id. at p. 728.)9

In determining whether an injunction restraining defamation may be issued,

therefore, it is crucial to distinguish requests for preventive relief prior to trial and

post-trial remedies to prevent repetition of statements judicially determined to be

defamatory. As one commentator aptly recognized: “There are two stages at

which it would be in the plaintiff’s interest to enjoin publication of a defamation –

firstly to preclude the initial public distribution, and secondly to bar continued

distributions after a matter has been adjudged 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 addition, such an injunction may be denied on the

ground that equitable jurisdiction extends only to property rights and not

personalty . . . . [¶] In a few states the requirement that criminal libels be tried by a

jury has been applied to civil cases as well, thus providing a third objection to the


9

Consistently, American Jurisprudence Second observes that “while it is true

that equity will not normally restrain a libel, the rule is not without exception . . .
and an injunction properly issued to prohibit a defendant from reiterating
statements which had been found in current and prior proceedings to be false and
libelous . . . .” (42 Am.Jur.2d (2000) Injunctions, § 98, p. 693.)

21

granting of an injunction against the initial distribution of defamatory matter. [¶]

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.” (1 Hanson, Libel and Related Torts (1969) § 170, pp. 139-140,

italics added.)

Accepting Lemen’s argument that the only remedy for defamation is an

action for damages would mean that a defendant 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. This could occur if the defendant either was so impecunious as to be

“judgment proof,” or so wealthy as to be willing to pay any resulting judgments.

Thus, a judgment for money damages will not always give the defendant effective

relief from a continuing pattern of defamation. The present case provides an apt

example. The Village Inn did not seek money damages in its amended complaint.

The Inn did not want money from Lemen; it just wanted her to stop.10

10

Justice Kennard’s concurring and dissenting opinion states that the majority

holds that “future speech may be enjoined irrespective of whether monetary
damages would have been an adequate remedy.” (Conc. & dis. opn. of Kennard,
J., post, at pp. 3, 9.) We do not so hold. We hold that an injunction prohibiting
the defendant from repeating a statement determined to be defamatory does not
constitute a prohibited prior restraint of speech. We also hold that an award of
damages is not the sole remedy available for defamation. We express no view on
whether, in an individual case, an injunction prohibiting the defendant from
repeating defamatory statements could, or should, be denied because an award of
damages would be an adequate remedy.

22

We recognize, of course, that a court must tread lightly and carefully when

issuing an order that prohibits speech. In Carroll v. Princess Anne (1968) 393

U.S. 175, the high court invalidated a restraining order prohibiting the

continuation of a public rally conducted by a “white supremacist” organization

that had been issued ex parte without notice to the enjoined parties. In explaining

the importance of giving the enjoined parties an opportunity to be heard, the high

court in Princess Anne stressed the importance of limiting any order restraining

speech: “An order issued in the area of First Amendment rights must be couched

in the narrowest terms that will accomplish the pin-pointed objective permitted by

constitutional mandate and the essential needs of the public order. In this sensitive

field, the State may not employ ‘means that broadly stifle fundamental personal

liberties when the end can be more narrowly achieved.’ [Citation.] In other

words, the order must be tailored as precisely as possible to the exact needs of the

case.” (Carroll v. Princess Anne, supra, 393 U.S. at pp. 183-184; Pittsburgh

Press Co. v. Human Rel. Comm’n, supra, 413 U.S. 376, 390 [upholding an order

that is “clear and sweeps no more broadly than necessary”]; Aguilar v. Avis Rent A

Car System, Inc., supra, 21 Cal.4th 121, 140-141 (plur. opn. of George, C. J.).)

The court in Madsen v. Women’s Health Center, Inc., supra, 512 U.S. at

page 765, held that review of an injunction, as opposed to an ordinance, that

restricted the time, place, and manner of protected expression “require[s] a

somewhat more stringent application of general First Amendment principles.”

The high court explained: “In past cases evaluating injunctions restricting speech,

[citations], we have relied upon such general principles while also seeking to

ensure that the injunction was no broader than necessary to achieve its desired

goals. [Citations.] Our close attention to the fit between the objectives of an

injunction and the restrictions it imposes on speech is consistent with the general

rule, quite apart from First Amendment considerations, ‘that injunctive relief

23

should be no more burdensome to the defendant than necessary to provide

complete relief to the plaintiffs.’ [Citations.]” (Ibid.)

The same result obtains under the California Constitution. Article I, section

2, subdivision (a) of the California Constitution states: “Every person may freely

speak, write and publish his or her sentiments on all subjects, being responsible for

the abuse of this right.” In Dailey v. Superior Court (1896) 112 Cal. 94, this court

overturned an order issued prior to a play’s opening performance that prohibited

the performance or advertising of the play because it was based upon the facts of a

pending criminal trial. Concluding that the order constituted a prohibited prior

restraint of expression, this court observed that the wording of the above-quoted

constitution provision “is terse and vigorous, and its meaning so plain that

construction is not needed. . . . 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.” (Id. at p. 97.) In Wilson v. Superior Court (1975) 13 Cal.3d

652, 658, we held that a preliminary injunction issued prior to trial that prohibited

the distribution of a political campaign leaflet was unconstitutional because it

“constituted a prior restraint on publication.”

Despite the broad language in the California Constitution protecting

speech, we have recognized that a court may enjoin further distribution of a

publication that was found at trial to be unlawful, stating: “[I]f the trial court finds

the subject matter obscene under prevailing law an injunctive order may be

fashioned . . . . It is entirely permissible from a constitutional standpoint to enjoin

further exhibition of specific magazines or films which have been finally adjudged

to be obscene following a full adversary hearing. [Citations.]” (People ex rel.

Busch v. Projection Room Theater (1976) 17 Cal.3d 42, 57; see Aguilar v. Avis

Rent A Car System, Inc., supra, 21 Cal.4th 121, 144-145 (plur. opn. of George,

C. J.) [“Under the California Constitution, as under its federal counterpart, the

24

injunction in the present case thus does not constitute a prohibited prior restraint of

speech, because defendants simply were enjoined from continuing a course of

repetitive speech that had been judicially determined to constitute unlawful

harassment in violation of the FEHA.”].)

The injunction in the present case is broader than necessary to provide

relief to plaintiff while minimizing the restriction of expression. (Madsen v.

Women’s Health Center, Inc., supra, 512 U.S. 753, 765.) The injunction applies

not just to Lemen but to “her agents, all persons acting on her behalf or purporting

to act on her behalf and all other persons in active concert and participation with

her.” There is no evidence in the record, however, to support a finding that

anyone other than Lemen herself defamed defendant, or that it is likely that Lemen

will induce others to do so in the future. Therefore, the injunction, to be valid,

must be limited to prohibiting Lemen personally from repeating her defamatory

statements.11

Further, the injunction must not prevent Lemen 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.” (Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217,

222.) Accordingly, paragraph 4B, which prohibits Lemen “from making the

following defamatory statements about Plaintiff to third persons” must be

modified to prohibit Lemen “from making the following defamatory statements

about Plaintiff to third persons other than governmental officials with relevant

enforcement responsibilities.”


11

We express no view regarding whether the scope of the injunction properly

could be broader if people other than Lemen purported to act on her behalf.

25

The injunction prohibits Lemen from “initiating contact with individuals

known to Defendant to be employees of Plaintiff.” We agree with the Court of

Appeal that this restriction “sweeps more broadly than necessary” because it

“includes no time, place, and manner restrictions but prohibits Lemen from

initiating any type of contact with a known Village Inn employee anywhere, at any

time, regarding any subject.”12

Lemen argues that she cannot be enjoined from repeating the same

statements found to be defamatory, because a change in circumstances might

render permissible a statement that was defamatory, stating: “A statement that was

once false may become true later in time.” If such a change in circumstances

occurs, defendant may move the court to modify or dissolve the injunction. Civil

Code section 3424, subdivision (a) states: “Upon notice and motion, the court

may modify or dissolve a final injunction upon a showing that there has been a

material change in the facts upon which the injunction was granted . . . .” “This

statute codifies a long-settled judicial recognition of the inherent power of the

court to amend an injunction in the interest of justice when ‘. . . there has been a

change in the controlling facts upon which the injunction rested . . . .’ [Citations.]”

(Swan Magnetics, Inc. v. Superior Court (1997) 56 Cal.App.4th 1504, 1509.) By

the same token, the Village Inn could move to modify the injunction if Lemen

repeated her defamatory statements in a manner not expressly covered by the

injunction.13


12

The Court of Appeal upheld the final paragraph of the injunction, which

prohibits Lemen “from filming . . . within 25 feet of the premises” of the Village
Inn, except on Lemen’s own property. Lemen did not seek review of this portion
of the Court of Appeal’s decision and does not challenge it in this court.
13

Justice Kennard’s concurring and dissenting opinion states that the majority

holds that “a defendant’s truthful future speech may be subjected to judicial

(Footnote continued on next page.)

26

If it chose to, the trial court could retain jurisdiction to monitor the

enforcement of the injunction. “The jurisdiction of a court of equity to enforce its

decrees is coextensive with its jurisdiction to determine the rights of the parties,

and it has power to enforce its decrees as a necessary incident to its jurisdiction.

Except where the decree is self-executing, jurisdiction of the cause continues for

this purpose, or leave may be expressly reserved to reinstate the cause for the

purpose of enforcing the decree, or to make such further orders as may be

necessary. [Citations.]” (Klinker v. Klinker (1955) 132 Cal.App.2d 687, 694.)

Accordingly, we agree with the Court of Appeal that the injunction issued

by the trial court must be reversed in part, but we reach that conclusion based on

different reasoning than that relied upon by the Court of Appeal. As explained

above, the injunction must be reversed in part because it is overly broad, but a

properly limited injunction prohibiting defendant from repeating statements about

plaintiff that were determined at trial to be defamatory would not violate

defendant’s right to free speech.



(Footnote continued from previous page.)

censorship.” (Conc. & dis. opn. of Kennard, J., post, at p. 3.) We do not so hold.
We hold only that the possibility that a change in circumstances could alter the
nature of a statement found to be defamatory does not prohibit a court from
issuing an injunction prohibiting the defendant from repeating that statement.

27

DISPOSITION

The judgment of the Court of Appeal is affirmed, and the matter remanded

for proceedings consistent with the views expressed in this opinion.

MORENO, J.

WE CONCUR: GEORGE, C. J.
BAXTER,

J.

CHIN,

J.

CORRIGAN,

J.

28






CONCURRING OPINION BY BAXTER, J.

I join fully in the majority opinion. I write separately only to point out that

if a defendant were to be enjoined from repeating statements already determined to

be defamatory, such a defendant may not only move the court to modify or

dissolve the injunction based on a change in circumstances or context, as the

majority notes, but may also speak out, notwithstanding the injunction, and assert

the present truth of those statements as a defense in any subsequent prosecution

for violation of the injunction. (People v. Gonzalez (1996) 12 Cal.4th 804, 818

[“this court has firmly established that a person subject to a court’s injunction may

elect whether to challenge the constitutional validity of the injunction when it is

issued, or to reserve that claim until a violation of the injunction is charged as a

contempt of court”]; In re Berry (1968) 68 Cal.2d 137, 149-150.)

Our decision thus does not require a citizen to obtain government

permission before speaking truthfully. In this respect, California law “is

‘considerably more consistent with the exercise of First Amendment freedoms’

than that of other jurisdictions that have adopted the so-called collateral bar rule

barring collateral attack on injunctive orders.” (People v. Gonzalez, supra, 12

Cal.4th at p. 819, quoting In re Berry, supra, 68 Cal.2d at p. 150.)

BAXTER, J.

WE CONCUR:

GEORGE, C.J.

CHIN, J.


1









CONCURRING AND DISSENTING OPINION BY KENNARD, J.

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

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

2

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. 3), 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. 22.)

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 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.

3

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. 24-25.) The majority, however,

rejects the Court of Appeal’s holding that the injunction is an unconstitutional

prior restraint. (Id. at p. 18.) 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. 22); and (3) a

defendant’s truthful future speech may be subjected to judicial censorship (id. at

pp. 25-26).

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) including the

4

judicial, legislative, and executive branches of those governments (Madsen v.

Women’s Health Center, Inc. (1994) 512 U.S. 753, 764).

Injunctions pose a greater threat to freedom of speech than do statutes, as

injunctions carry a greater risk of censorship and discriminatory application 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).

The majority’s insistence to the contrary notwithstanding (maj. opn., ante,

at p. 6), the injunction here is a prior restraint because it prohibits Lemen from

making specified statements (ante at p. 2) 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 [court orders that actually

forbid speech activities are classic examples of prior restraints]; see Tory v.

Cochran (2005) 544 U.S. 734, 736 [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) 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.) Here, plaintiff has not carried that burden. Plaintiff’s

5

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 p. 18.) 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

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

6

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 [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; Baker v. Los Angeles Herald Examiner

(1986) 42 Cal.3d 254, 260 [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)?

7

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, 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., Inc. (1980) 445 U.S. 308,

311, 316; 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.) 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.)

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. 26.) Requiring a citizen to obtain

8

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;

Kingsley Books, Inc. v. Brown, supra, 354 U.S. at p. 445.)1

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 (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


1

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, J., ante, at p. 1.) 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 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.

9

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.) 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. 22) 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 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. 22.) 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

10

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 (Pa. 1978) 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; Wilson v. Superior Court (1975) 13 Cal.3d 652, 658.) 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).)

11

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

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.)

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. 24.) 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 (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.

12

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.

KENNARD,

J.

13












CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

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 (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

1



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 scrutiny 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.).)

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 “[g]iven 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. [¶] Balancing

[the defendant’s] First Amendment free speech rights with the equally weighty

2



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

“support[ing] 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

3



Legislature reasonably has determined such utterances are 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.) 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 [“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.


1

Thus, Civil Code sections 44 to 46 set forth the civil torts of defamation

and libel under state law.

4



Women’s Health Center, Inc. (1994) 512 U.S. 753), 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

[“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 [(1963)]; New York Times Co. v.

United States, 403 U. S. [713], at 714 [(1971)]; [citations]. The presumption

against prior restraints is heavier—and the degree of protection broader—than that

against limits on expression 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.)

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.)

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; see also Metropolitan Opera

5



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: [¶] . . . [¶] (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. 19-

20.) 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 modern 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

[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 precise

question before us—whether an injunction prohibiting the repetition of statements

6



found at trial to be defamatory violates the First Amendment.” (Maj. opn., ante, at

pp. 11-12.)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. 12.) 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. 12-13.) 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 [obscenity unprotected by First Amendment

if “utterly without redeeming social importance”]; Jacobellis v. State of Ohio

(1964) 378 U.S. 184, 197 (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 [partially overruling Roth

and establishing the modern test for obscenity]; Reno v. American Civil Liberties

Union (1997) 521 U.S. 844 [invalidating portions of the Communications

Decency Act of 1996, which attempted to regulate obscenity on the Internet].)


2

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.) The court vacated and remanded the case
without resolving the First Amendment issue because the plaintiff passed away
during the pendency of the appeal. (Id. at pp. 738-739.)

7



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; Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436.) 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, the high court considered an author’s breach of an agreement

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 book sale 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; 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.

8



Playtime Theatres, Inc. (1986) 475 U.S. 41 [upholding government zoning to

regulate secondary effects of sexually explicit, though not necessarily obscene,

speech]; Heller v. New York (1973) 413 U.S. 483 [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 incentives3 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.

The majority also cites Pittsburgh Press Co. v. Human Rel. Comm’n (1973)
413 U.S. 376 in support. (Maj. opn., ante, at p. 13.) 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


3

See, e.g., New York v. Ferber (1982) 458 U.S. 747, 756, 761 (“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 [“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.)].)

9



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. Bunner (2003)

31 Cal.4th 864, 890 (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.

10



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 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.

WERDEGAR, J.


4

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.

11



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Balboa Island Village Inn., Inc. v. Lemen
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 121 Cal.App.4th 583
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S127904
Date Filed: April 26, 2007
__________________________________________________________________________________

Court:
Superior
County: Orange
Judge: Gerald G. Johnston

__________________________________________________________________________________

Attorneys for Appellant:

D. Michael Bush; Erwin Chemerinsky; Sheppard Mullin Richter & Hampton, Gary L. Bostwick and
Jean-Paul Jassy for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Dubia, Erickson, Tenerelli & Russo, Law Offices of J. Scott Russo and J. Scott Russo for Plaintiff and
Respondent.









Counsel who argued in Supreme Court (not intended for publication with opinion):

Erwin Chemerinsky
Duke University Law School
Science Drive and Towerview Road
Durham, NC 27708
(919) 613-7173

J. Scott Russo
Law Offices of J. Scott Russo
2 Park Plaza, Suite 300
Irvine, CA 92614-8513
(949) 752-7106

Opinion Information
Date:Docket Number:
Thu, 04/26/2007S127904A

Parties
1Balboa Island Village Inn, Inc. (Plaintiff and Respondent)
Represented by John Scott Russo
Russo & Duckworth, LLP
9090 Irvine Center Drive, 2nd Floor
Irvine, CA

2Lemen, Anne (Defendant and Appellant)
Represented by Donald Michael Bush
Attorney at Law
2501 Alton Parkway
Irvine, CA

3Lemen, Anne (Defendant and Appellant)
Represented by Gary L. Bostwick
Sheppard Mullin Richter & Hampton, LLP
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA

4Lemen, Anne (Defendant and Appellant)
Represented by Erwin Chemerinsky
Duke University School of Law
Science Drive & Towerview Road
Durham, NC

5Lemen, Anne (Defendant and Appellant)
Represented by Jean-Paul Jassy
Sheppard Mullin Richter & Hampton, LLP
1901 Avenue of the Stars, Suite 1600
Los Angeles, CA


Disposition
Apr 26 2007Opinion: Affirmed with directions

Dockets
Sep 20 2004Petition for review filed
  respondent Balboa Island Village Inn, Inc.
Sep 20 2004Received:
  federal authorities>>respondent Balboa Island Village Inn, Inc.
Sep 24 2004Received Court of Appeal record
  file jacket/briefs
Oct 14 2004Received:
  Late Answer to Petition for Review // submitted concurrent with application to file late. counsel for appellant, ANNE LEMEN.
Oct 15 2004Answer to petition for review filed with permission
 
Nov 17 2004Time extended to grant or deny review
  To December 17, 2004.
Dec 15 2004Petition for review granted (civil case)
  Further action in this matter is deferred pending the United States Supreme Court decision in Tory v. Cochran (Oct. 29, 2003, B159437 [nonpub. opn.]), certiorari granted September 28, 2004, No. 03-1488, __ U.S. __ [125 S.Ct. 26, 159 L.Ed.2d 856], or further order of this court. Votes: George, C.J., Baxter, Werdegar, Chin, and Moreno, JJ.
Dec 15 2004Letter sent to:
  parties re: Certification of Interested Entities or Persons.
Dec 28 2004Certification of interested entities or persons filed
  respondent Balboa Island Village
Jun 8 2005Filed letter from:
  respondent Balboa Island Village Inn dated June 6, 2005 re: briefing see attached U.S. Supreme Court decision in Cochran v. Tory
Jun 22 2005Briefing ordered in previously Held case
  The petition for review was granted in this matter on December 15, 2004, and further action was deferred pending the United States Supreme Court's consideration and disposition of a related issue in Tory v. Cochran (U.S. Sup. Ct. No. 03-1488). The United States Supreme Court has now issued a decision in that matter. (Tory v. Cochran (May 31, 2005) _U.S._ [125 S.Ct. 26, 159 L.Ed.2d 856]). Respondent in the present case is now directed to serve and file, within 30 days of the filing of this order, an opening brief on the merits. Within 30 days of the filing of that brief, appellant shall file an answer brief. Within 20 days of the filing of that brief, respondent may file a reply brief to appellant's answer. (Cal. Rules of Court, rule 29.1)
Jul 18 2005Association of attorneys filed for:
  Appellant (Lemen).
Jul 21 2005Request for judicial notice filed (granted case)
  counsel for resp. BALBOA ISLAND VILLAGE INN, INC.
Jul 21 2005Opening brief on the merits filed
  by counsel for respondent BALBOA ISLAND VILLAGE INN, INC.
Jul 22 2005Application to appear as counsel pro hac vice (granted case)
  application for attorney Erwin Chemerinsky to appear on behalf of appellant Anne Lemen
Jul 27 2005Request for extension of time filed
  to file answer brief on the merits by counsel for the Appellant (Lemen).
Jul 28 2005Extension of time granted
  to serve and file the answer brief on the merits to and including September 21, 2005.
Sep 22 2005Answer brief on the merits filed
  Appellant (Lemen) by counsel. 40.1(b)
Sep 22 2005Change of contact information filed for:
  counsel for appellant (Lemen).
Sep 28 2005Application to appear as counsel pro hac vice granted
 
Oct 11 2005Reply brief filed (case fully briefed)
  respondent, BALBOA ISLAND VILLAGE INN, INC.
Apr 3 2006Notice of substitution of counsel
  J. Scott Russo in place of Michael R. Tenerelli, counsel for respondent Balboa Island Village Inn, Inc.
Apr 3 2006Change of contact information filed for:
  D. Michael Bush, Counsel for Anne Lemen
Aug 9 2006Received Court of Appeal record
  briefs
Jan 3 2007Case ordered on calendar
  to be argued Monday, January 29, 2007, at 1:00 p.m., in Sacramento
Jan 17 2007Filed:
  Supplemental Authorities for Balboa Island Village Inn, Inc., respondent J. Scott Russo, counsel
Jan 29 2007Cause argued and submitted
 
Jan 30 2007Request for judicial notice denied
  Respondent's Request for Judicial Notice, filed on Jully 21, 2005, is denied.
Apr 25 2007Notice of forthcoming opinion posted
 
Apr 26 2007Opinion filed: Affirmed in full with directions
  The judgment of the Court of Appeal is affirmed, and the matter remanded for proceedings consistent with the views expressed in this opinion. -----Majority opinion by: Moreno, J. -----Joined by: George, C.J., Baxter, Chin, Corrigan, J.J. -----Concurring opinion by Baxter, J. -----Joined by: George, C.J., Chin, J. -----Concurring and dissenting opinion by: Kennard, J. -----Concurring and dissenting opinion by: Werdegar, J.
Jun 12 2007Change of contact information filed for:
  and firm name for J. Scott Russo, counsel for respondent, Balboa Island Village Inn, Inc.
Jun 15 2007Remittitur issued (civil case)
 
Jun 25 2007Received:
  Receipt for Remittitur from CA4 Div.3

Briefs
Jul 21 2005Opening brief on the merits filed
 
Sep 22 2005Answer brief on the merits filed
 
Oct 11 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website