The California Supreme Court Decides an Important "Prior Restraint" Case, but Misses the Important Judge/Jury Distinction

By VIKRAM DAVID AMAR

Friday, May. 11, 2007

Late last month, the California Supreme Court issued an intriguing and important ruling concerning the First Amendment free speech doctrine governing so-called "prior restraints." In this context, a "prior restraint" means a court order -- or injunction -- prohibiting someone from saying or publishing particular speech that the judge thinks will be problematic or harmful. (The term "prior restraint" can sometimes refer to something else, but mostly it denotes a judicial order restraining speech.)

Such prior judicial restraints are traditionally very disfavored under First Amendment caselaw, so it is quite noteworthy that the California Supremes held that certain kinds of court orders restraining speech are completely acceptable. En route to this result, the court provided an interesting, albeit incomplete, account of what the rule against prior restraints is really all about, and how that rationale should apply to particular court orders.

The Factual Background

The case, Balboa Island Village Inn v. Lemen, seemed ordinary enough in its facts. Plaintiff Village Inn was a restaurant and bar located across an alley from the defendant's cottage. The defendant was a "vocal critic" of the Inn and had engaged in aggressive measures to deter patrons and employees from keeping the Inn in business. She verbally harassed people who worked at the Inn, called customers "whores" and "drunks" as they entered and left the Inn, and (of particular relevance) told neighbors -- in order to get them to sign a petition opposing the Inn -- that the Inn "was selling drugs and selling alcohol to minors," that "sex videos were being filmed inside" the Inn, and that "it was involved with the Mafia." None of these statements was true, and defendant knew or should have known of their falsity - meaning that the defamation claim here was rock-solid. Nevertheless, the defendant's strategies apparently caused the Inn's business to drop more than 20 percent.

The Inn sued in California state court, alleging causes of action for nuisance, defamation and interference with business. The only remedy it sought was an injunction against the defendant, ordering her to cease her verbal harassment and neighborhood smear campaign.

The trial court held a bench trial, and determined that the defendant's utterances were injurious, as well as knowingly or recklessly false and therefore unprotected by the First Amendment. The court then issued an injunction against future defamatory statements, prohibiting the defendant from repeating the same falsehoods about the plaintiff.

It is that injunction against future utterances that the California Supreme Court upheld (for the most part -- the court did have a few quibbles with the breadth of the injunction, but ruled that a carefully-tailored judicial ban on repetition of defamatory remarks would be permissible.)

The Rule Against Prior Judicial Restraints

To evaluate the California Justices' decision to uphold a trial court's power to enjoin future utterances in a case like this, we must first analyze the historical rule against prior judicial restraints that the defendant (unsuccessfully) invoked. The rule is rooted in English common law, but was modified and adopted in the United States at the time of the Constitution.

At first glance, the rule seems a bit of an oddity.

Why should a defendant who is going to utter words that we think are unprotected under the First Amendment (like defamation, or threats, or obscenity, etc.) have a right to speak now and then deal with the consequences only later?

If the rule against prior restraints meant only that judges cannot enjoin beforehand speech that after-the-fact also could not be the basis of a civil or criminal action for compensatory or punitive damages or jail time, then the rule would be easy to understand: Surely judges can't issue orders telling people they can't utter speech that the First Amendment protects.

But the rule against prior restraints covers speech that can be punished after the fact. The same speech that we say judges cannot enjoin, can later be made the basis of defamation action for damages, or even a criminal action by the state. After the speech is uttered, if it turns out not to have been protected under the First Amendment, society can, consistent with the Constitution, impose compensatory and punitive measures upon the defendant because of it.

It is true that a prior judicial restraint is enforced through the powerful device of contempt of court - if a court enjoins your speech, and you violate the injunction, the judge finds you in contempt and punishes you. But surely the specter of after-the-fact sanctions, both compensatory and punitive, will have a similar deterrent effect on the utterance of the speech, so we cannot easily distinguish ex ante judicial restraint from ex post damage and criminal actions on the ground that only the former will chill speech. The reality is that the prospect of either will chill speech.

Moreover, isn't it unfair to the plaintiff - the victim of bad speech - to relegate her to a damage action down the road? Perhaps the defendant will be judgment-proof (that is, broke), so that a damage judgment will give plaintiff very little. Moreover, even if the defendant has the money to pay, can money ever truly compensate for lost reputation and the like?

The California Supreme Court Reasoning - The Importance of a Trial to Determine Whether the Speech is Bad

Why, then, do we ordinarily tell a plaintiff, "You've got to wait until the speech is uttered, and go after it only then"? The California Supreme Court said, in effect, that this is because, until speech has actually been uttered and adjudicated to be bad, we don't really know that it is bad and outside First Amendment protection.

In other words, according to the California high court, we have the rule against prior judicial restraints only because judges might restrain anticipated speech that looks bad before-the fact, but that might not look so bad after it is uttered and examined carefully in the context of an after-the-fact trial.

But - and this was the key for the California Justices - once the defamatory speech had been uttered, and already determined in a trial to be unprotected and injurious (as was true in the Balboa Village Inn case) -- there is no reason not to enjoin its reutterance.

The court framed its major point in the following terms: "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." (Emphasis in original)

Was the California Supreme Court's Analysis Complete? The Missing Judge/Jury Distinction

Not all the California Justices bought the majority's reasoning. A few dissenters pointed out that every speech utterance or publication takes place in a particular context. Therefore, even speech that is repeated or republished verbatim might be more or less defamatory the second time around, depending on the context and on whether some of the facts or circumstances that the speech addresses have changed in the interim.

There is something to that point. But I think even the dissenters missed the big hole in the majority's analysis. To see that hole, we must examine the precedents on which the majority relied. The majority tried to buttress its conclusion by citing to a number of cases and commentators stating that injunctions after a trial had already determined uttered speech to be unprotected were permissible. But the court's reading of this history and precedent was not as careful as it should have been.

Consider, for example, Roscoe Pound's 1916 Harvard Law Review assertion that the majority quotes: "[English courts would allow] an injunction in case the libel was repeated or publication was continued after a jury had found the matter libelous."

A close reading of Pound's assertion (and almost all of the other commentary and case quotations offered by the majority) suggests that what makes certain injunctions against speech all right is not just that they are issued after a trial, but that they are issued after a jury trial. As legal historians have pointed out recently, the historic common-law rule (embodied in the First Amendment) against prior judicial restraint - the notion that courts could not enjoin a publisher from printing, but could entertain civil and criminal prosecutions for libel and sedition afterward - had bite largely because juries, not judges, would be involved in the after-the-fact assessment of the speech.

In other words, the rule against prior restraints reflects not just a preference for ex post rather than ex ante assessment, but also a preference for jury rather than judge decisionmaking power. (And recall that in the Balboa Village Inn case itself, there had been a bench trial without the involvement of a jury. The case might have been different, and might have fit Pound's paradigm better, had the injunction been issued following a jury trial.)

Now, one could argue that, in the modern era, juries are no longer preferable to judges to safeguard our free speech rights. At the founding, the paradigmatic speaker whom the First Amendment was designed to protect was someone who was popular with the community (and thus who would be protected by twelve citizen jurors) but who was critical of (and thus not popular among) government officials, including judges. So it made sense, then, not to allow judges - but to permit juries - to regulate speech.

Today, however, the First Amendment is often invoked on behalf of persons far less popular among their citizen peers - the KKK member, the flag burner, the sex purveyor, and so on. - so perhaps the historical justification for favoring juries over judges may no longer obtain. (Indeed, many controversial speakers might prefer to take their chances today with a judge rather than a jury.)

Still, one thing is clear: If we are going to depart from the historical rationale for having a rule against prior judicial restraints, a thorough discussion of the proper division of power between judges and juries has to be central. Unfortunately, that key distinction was not explored by any of the California Justices.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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