Metropolitan News-Enterprise


Friday, April 27, 2007


Page 1


Injunction of Defamatory Remarks Held Constitutional


By a MetNews Staff Writer


A court may prohibit the defendant in a defamation suit from repeating statements that have been determined to be defamatory at trial, the California Supreme Court ruled yesterday in a 5-2 decision.

The justices affirmed a Fourth District Court of Appeal ruling largely invalidating a permanent injunction in a defamation case, but disagreed with the Div. Three panel that the order was an unconstitutional prior restraint.

Issued after a court trial, the injunction prohibited Newport Beach resident Anne Lemen from making specific statements against a local restaurant and bar that were found to be defamatory.

The high court majority found the injunction impermissible only on overbreadth grounds, and held it would not violate Lemen’s right to free speech if properly limited on remand.

Writing for the court, Justice Carlos R. Moreno concluded:

“[A]n 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.”

Lemen was sued by the Balboa Island Village Inn in October 2001 over her vocal criticism against the establishment, located across the alley from a vacation home, the “Island Cottage,” that she owned and operated.

In addition to contacting authorities repeatedly to complain of excessive noise and the behavior of allegedly inebriated customers, Lemen undertook the task of documenting the customers’ conduct on videotape and circulated a petition opposing the Inn.

While going door-to-door to collect signatures for her petition, she told neighbors that the Inn was selling drugs, peddling alcohol to minors, and that child pornography, prostitution and the filming of sex videos was going on inside the restaurant.  She also claimed that it was involved with the mafia and encouraged lesbian activities.

As a result of Lemen’s campaign, which garnered 100 signatures, the Inn allegedly suffered a 20 percent drop in its sales.

In addition, Lemen also harassed Inn employees, telling the bartender the she “worked for Satan,” insinuating to a musician that he lacked a green card, and telling the owner’s wife she was a “whore” in the presence of an Island Cottage tenant.

The Inn sued Lemen for nuisance, defamation and interference with business, and sought injunctive relief.

Following trial, the court held Lemen’s remarks defamatory and granted the Inn’s request for a permanent injunction that barred Lemen from initiating contact with individuals known to her to be Inn employees; from filming within 25 feet of the Inn unless she does so within her own property; and from making the specific statements the court found defamatory.

The Court of Appeal upheld the filming prohibition but struck down the other two provisions of the injunction as violative of the First Amendment.

Analogizing to U.S. Supreme Court precedent on obscenity cases—which have upheld prohibitions against the distribution of materials found to be obscene— Moreno concluded that “the general rule that a defamation may not be enjoined does not apply in a circumstances 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. “

If circumstances changed such that any of the statements become true, he added, Lemen was free to move for a modification or a dissolution of the injunction.

Chief Justice Ronald M. George and Justices Marvin R. Baxter, Ming W. Chin and Carol A. Corrigan concurred in the opinion.

Dissenting, Justice Joyce L. Kennard said the majority improperly relieved the Inn of its obligation to show that damages were not an adequate remedy for the harm it suffered.

“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,” she wrote.

“To forever gag the speaker—the remedy approved by the majority—goes beyond chilling speech; it freezes speech,”  the jusice said.

In a separate dissent, Justice Kathryn M. Werdegar maintained the court improperly referenced precedent on obscenity cases in its reasoning:

“[T]he mere fact that 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,” she said.

Duke University School of Law Professor Erwin Chemerinsky, who argued for Lemen on appeal, told the MetNews:

“Overall, I think that it’s a victory for the First Amendment. It could’ve been better.”

The best result, he said, would have been a holding that damages were the plaintiff’s only remedy.

The Inn’s appellate counsel, Irvine attorney J. Scott Russo, said the ruling “couldn’t have been better” and that he expected the court to order a narrowing of the injunction.

He added that the conflict between the parties has lessened.

“In truth, given the six years that has gone by since this, a lot of it has resolved itself,” he said. “Time heals a lot of things.”

The case is Balboa Island Village Inn, Inc. v. Lemen, 07 S.O.S. 2194.


Copyright 2007, Metropolitan News Company