Can a Court Order Someone Not to Defame You?

Temporary Restraining Order
I get many calls from victims of Internet defamation who want me to go to court and get an order to stop the defamation. In other words, they want a court order that stops someone from speaking or publishing statements that the victims deems to be defamatory. Is that possible?

Like most legal questions, the answer is, “it depends.”

California law is very clear that after a trial has determined that the statements being made are defamatory, the court can order the defendant to stop making those statements. The reason is that defamatory speech is not protected, so once it has been found to be defamatory, the court can order the defendant not to repeat the defamatory statements. Once the court has issued such an order, it can be enforced just like any other court order, with the court assessing sanctions and even jail time if the defendant refuses to comply.

The much tougher challenge is getting a court to order a defendant to stop defaming the victim before there has been a trial. Typically, it takes at least a year to take a matter to trial, and that may be far too long for the victim. A temporary injunction can be obtained in a matter of days, so that affords a much faster remedy if it is available.

But there is a problem. An injunction is usually issued with little or no time for the defendant to oppose it. The procedure is that the plaintiff files an ex parte application with just 24 hours notice to the other side. The plaintiff’s attorney may have taken weeks to prepare a carefully crafted application supported by any number of declarations from witnesses, but the defendant gets just 24 hours to put together an opposition. Indeed, it’s far worse, because notice must be given 24 hours in advance, but the application may not be served until just four hours before the hearing, depending on the procedure followed by a particular court. If good cause can be shown, the ex parte application can be sought with no notice to the other side. A defendant could be ordered to stop speaking before the judge has ever heard his side of the story. Is that fair?

To make the system a little more fair, the first order that is issued by the court is only temporary, hence the name Temporary Restraining Order (“TRO”). As a part of issuing the TRO, the court must also set a hearing about ten days later, to determine if a Preliminary Injunction will be issued. In other words, the court issues a TRO pretty much based only on the plaintiff’s version of the facts, but that order is only good for about ten days, at which time the defendant gets to file his papers opposing the Preliminary Injunction. Why is it called a “Preliminary Injunction”? Because, as the name implies, it is a “preliminary” injunction that is in effect only until the matter can be decided at trial. If the plaintiff proves his case at trial, the injunction then becomes a “Permanent Injunction”. (That name is a little misleading, because by its terms the Permanent Injunction may only be limited to a given length of time.) If the plaintiff does not prove his case at trial, then the injunction is extinguished.

The point of this long-winded explanation is that, as you can see, a TRO and Preliminary Injunction are both issued without the benefit of trial. They are usually supported only by signed declarations, and the defendant has no opportunity to cross-examine those witnesses. We cherish the right of free speech in this Country, and a judge should not be ordering someone not to speak before he or she has seen all the evidence, and the defendant has had the right to face his accusers (more of a criminal concept, but the reasoning still applies). For this reason, the courts have long held that any order that prevents someone from speaking, before trial, is a prior restraint and is unconstitutional. Therefore, most attorneys will tell you that it is impossible to get a restraining order to stop a defamer before trial.

But it isn’t necessarily so. The recent unpublished opinion in Burrett v. Rogers illustrates a narrow exception, arising from the tension between the right of free speech and the right not to be harassed.

California Code of Civil Procedure Section 527.6, subdivision (a)(1) states:

“A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Section 527.6, subdivision (b)(3) states: “‘Harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (Emphasis added.)

In Burrett, the plaintiff alleged that Rogers was harassing her in a number of ways, and when she requested a TRO, asked the trial court to enjoin Rogers from “using any social media forums or other form of harassing . . . written, video, quaro (sic) forum to harass and defame any members of our family. This would include removing the current postings and no longer stalking our parish, schools, and workplaces to try to find out information.”

The trial court denied that part of the TRO request, finding it was unconstitutional prior restraint, and set the matter for a hearing on the Preliminary Injunction. (The court also refused to order Rogers not to attend plaintiff’s church.) Rogers filed an extensive opposition to the requested injunction.

After the hearing on the Preliminary Injunction, at which Burrett and Rogers both testified, the trial court issued the injunction, and ordered Rogers have “no social media harassment with family names”. Rogers appealed, claiming this amounted to unconstitutional prior restraint.

The Court of Appeal disagreed, reasoning as follows:

While, generally speaking, an injunction may prohibit the repetition of statements found at trial to be defamatory without violating the First Amendment to the United States Constitution (Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 1144, 1157), Rogers asserts the civil harassment restraining order is unconstitutional because “there has been no trial and no determination on the merits that any statement made by Rogers was defamatory as to Burrett and her family.”

The civil harassment restraining order does not enjoin defamatory speech. Rather, the order provides that Rogers have “no social media harassment with family names” (capitalization omitted). This distinction is critical. Not all speech is constitutionally protected. (Flatley v. Mauro (2006) 39 Cal.4th 299, 313.) “In California, speech that constitutes ‘harassment’ within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250.) “‘Section 527.6 is intended “to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.”’” (Ibid.) The right to free speech “does not include the right to repeatedly invade another person’s constitutional rights of privacy and the pursuit of happiness through the use of acts and threats that evidence a pattern of harassment designed to inflict substantial emotional distress.” (People v. Borrelli (2000) 77 Cal.App.4th 703, 716.)

Rogers cites Evans v. Evans (2008) 162 Cal.App.4th 1157 as support for his argument the civil harassment restraining order is unconstitutional. In that case, the Court of Appeal struck down as unconstitutional a portion of a preliminary injunction enjoining the defendant from publishing “‘false and defamatory’” statements about the plaintiff on the Internet. (Id. at p. 1169.) The court held that part of the injunction constituted an invalid prior restraint because there had been no trial and no determination on the merits that any statements made by the defendant were defamatory. (Ibid.)

The civil harassment restraining order in this case, unlike the injunction in Evans v. Evans, does not enjoin publication of false and defamatory statements. The civil harassment restraining order is constitutional because it enjoins harassment on social media Web sites. Harassment, which is not protected speech, is defined in section 527.6, subdivision (b)(3).

As you can see, the holding is very narrow and will only apply where a plaintiff is seeking a very specific type of injunction, but it is possible through the use of an injunction against HARASSMENT as opposed to the defamation itself, even though the harassment may be taking the form of harassment.

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Aaron Morris
Morris & Stone, LLP

Tustin Financial Plaza
17852 17th St., Suite 201
Tustin, CA 92780

(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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