robert-kinney-v-andrew-harrison-barnes-aka-a-harrison-barnes-ah ( 2014 )

IN THE SUPREME COURT OF TEXAS
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NO . 13-0043
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ROBERT KINNEY, PETITIONER,
v.
ANDREW HARRISON BARNES (A/K/A A. HARRISON BARNES, A. H. BARNES,
ANDREW H. BARNES, HARRISON BARNES), BCG ATTORNEY SEARCH, INC.,
EMPLOYMENT CROSSING, INC. AND JD JOURNAL, INC., RESPONDENTS
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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS
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Argued January 9, 2014
JUSTICE LEHRMANN delivered the opinion of the Court.
A hallmark of the right to free speech under both the U.S. and Texas Constitutions is the
maxim that prior restraints are a heavily disfavored infringement of that right. So great is our
reticence to condone prior restraints that we refuse to allow even unprotected speech to be banned
if restraining such speech would also chill a substantial amount of protected speech. This danger is
before the Court today, as we are asked whether a permanent injunction restraining future speech is
a constitutionally permissible remedy for defamation following an adjudication on the merits. On
the one hand, it is well settled that defamation is an abuse of the privilege to speak freely; our
holding today does not disturb that. On the other, it is also well settled that prior restraints are rarely
permitted in Texas due to their capacity to chill protected speech.
The issue at hand is more specifically presented as whether a permanent injunction is an
unconstitutional prior restraint where the injunction (1) requires the removal or deletion of speech
that has been adjudicated defamatory, and (2) prohibits future speech that is the same or similar to
the speech that has been adjudicated defamatory. We hold that, while the former does not enjoin
future speech and thus is not a prior restraint, the latter constitutes a prior restraint that impermissibly
risks chilling constitutionally protected speech. Because the court of appeals failed to recognize this
distinction in affirming summary judgment for the defendant, we reverse the court of appeals’
judgment and remand the case to the trial court for further proceedings.
I. Background
BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he
left and started a competing firm. Several years later, BCG’s President, Andrew Barnes, posted a
statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a
kickback scheme during his time with BCG. Describing allegations in a lawsuit Barnes had
previously filed against Kinney in California, Barnes stated:
The complaint also alleges that when Kinney was an employee of BCG Attorney
Search in 2004, he devised an unethical kickback scheme, attempting to pay an
associate under the table at Preston, Gates and Ellis (now K&L Gates) to hire one of
his candidates. Barnes says that when he discovered this scheme, he and other BCG
Attorney Search recruiters immediately fired Kinney. The complaint in the action
even contains an email from Kinney where he talks about paying the bribe to an
associate at Preston Gates in return for hiring a candidate.
2
The posted statements prompted Kinney to sue Barnes, BCG, and two other companies
Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County.
Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial
on the merits.1 Specifically, Kinney sought an order requiring Barnes to (a) remove the allegedly
defamatory statements from Barnes’s websites, (b) contact third-party republishers of the statements
to have them remove the statements from their publications, and (c) conspicuously post a copy of
the permanent injunction, a retraction of the statements, and a letter of apology on the home pages
of Barnes’s websites for six months. Kinney has since abandoned his demand for an apology and
retraction.
Barnes filed a motion for summary judgment on the ground that the relief sought would
constitute an impermissible prior restraint on speech under the Texas Constitution. The trial court
granted the motion, and the court of appeals affirmed without addressing whether Barnes’s
statements were defamatory. We too will limit our review to the constitutionality of Kinney’s
requested relief and assume only for purposes of that analysis that the complained-of statements are
defamatory.
II. Discussion
“Every person shall be at liberty to speak, write or publish his opinions on any subject, being
responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of
1
According to Barnes, Kinney previously filed and nonsuited a defamation suit against the same defendants
seeking monetary damages but no injunctive relief.
3
speech or of the press.” TEX . CONST . art. I, § 8. Enshrined in Texas law since 1836,2 this
fundamental right recognizes the “transcendent importance of such freedom to the search for truth,
the maintenance of democratic institutions, and the happiness of individual men.” TEX . CONST . art.
I, § 8 interp. commentary (West 2007). Commensurate with the respect Texas affords this right is
its skepticism toward restraining speech. While abuse of the right to speak subjects a speaker to
proper penalties, we have long held that “pre-speech sanctions” are presumptively unconstitutional.
Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); see also Ex parte Tucker, 220 S.W. 75, 76 (Tex.
1920).
The First Amendment of the U.S. Constitution is similarly suspicious of prior restraints,
which include judicial orders “forbidding certain communications” that are “issued in advance of
the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550
(1993) (citation and internal quotation marks omitted). The U.S. Supreme Court has long recognized
that “prior restraints on speech and publication are the most serious and the least tolerable
infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976);
see also id. (“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.” (quoting A. BICKEL, THE MORALITY OF
CONSENT 61 (1975))). As such, they “bear[] a heavy presumption against [their] constitutional
validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). This cornerstone of First
2
The provision as currently worded dates back to 1876, but a similar provision was part of the 1836 Texas
Independence Constitution. Davenport v. Garcia, 834 S.W .2d 4, 7–8 (Tex. 1992).
4
Amendment protections has been reaffirmed time and again by the Supreme Court,3 this Court,4
Texas courts of appeals,5 legal treatises,6 and even popular culture.7
Nevertheless, freedom of speech is “not an absolute right, and the state may punish its
abuse.” Near v. Minnesota, 283 U.S. 697, 708 (1931) (citation and internal quotation marks
omitted). To that end, the common law has long recognized a cause of action for damages to a
person’s reputation inflicted by the publication of false and defamatory statements. Neely v. Wilson,
418 S.W.3d 52, 60 (Tex. 2013) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 11 (1990)); see
also Ex parte Tucker, 220 S.W. at 76 (“There can be no justification for the utterance of a slander.
It cannot be too strongly condemned.”). The U.S. Supreme Court and this Court have been firm in
the conviction that a defamer cannot use her free-speech rights as an absolute shield from
punishment.
3
See, e.g., Stuart, 427 U.S. at 561 (“[I]t is . . . clear that the barriers to prior restraint remain high unless we are
to abandon what the Court has said for nearly a quarter of our national existence and implied throughout all of it.”); N.Y.
Times Co. v. United States, 403 U.S. 713, 714 (1971) (per curiam).
4
Davenport, 834 S.W .2d at 9; Hajek v. Bill Mowbray Motors, Inc., 647 S.W .2d 253, 255 (Tex. 1983) (per
curiam); Ex parte Price, 741 S.W .2d 366, 369 (Tex. 1987) (Gonzalez, J., concurring) (“Prior restraints . . . are subject
to judicial scrutiny with a heavy presumption against their constitutional validity.”).
5
Tex. Mut. Ins. Co. v. Sur. Bank, N.A., 156 S.W .3d 125, 128 (Tex. App.—Fort Worth 2005, no pet.) (“[P]rior
restraints on speech are presumptively unconstitutional.”); San Antonio Express–News v. Roman, 861 S.W .2d 265, 267
(Tex. App.— San Antonio 1993, orig. proceeding) (per curiam).
6
See Erwin Chemerinsky, Injunctions in Defamation Cases, 57 S Y RACU SE L. R EV . 157, 173 (2007) (“[N]ever
in the 216 year history of the First Amendment has the Supreme Court found it necessary to uphold a prior restraint in
a defamation case . . . .”); A. Siegel, Injunctions for Defamation, Juries, and the Clarifying Lens of 1868, 56 B U FF . L.
R EV . 655, 656 (2008).
7
T HE B IG L EBO W SKI (PolyGram Filmed Entertainment & W orking Title Films 1998) (“For your information,
the Supreme Court has roundly rejected prior restraint.”).
5
This case asks us to examine these conflicting principles, and involves a two-part inquiry.
First, we examine whether a permanent injunction against defamatory speech, following a trial on
the merits, is a prior restraint. Kinney contends that such a “post-trial remedial injunction” is not
properly characterized as a prior restraint at all, much less one that is constitutionally impermissible.
Barnes maintains that a permanent injunction against future speech, whether issued before or after
the conclusion of a defamation trial, is necessarily a prior restraint. If the permanent injunction is
a prior restraint, we must then determine whether it overcomes the heavy presumption against its
constitutionality. Kinney argues that defamatory speech is not protected and that enjoining its
continuation is therefore permissible. Barnes responds that the presumption cannot be overcome
because such injunctions pose too great a risk to free speech.
We first acknowledge the parties’ arguments regarding whether Article I, Section 8 of the
Texas Constitution affords greater free-speech protection than the First Amendment of the U.S.
Constitution. Compare TEX . CONST . art. I, § 8 (“Every person shall be at liberty to speak, write or
publish his opinions on any subject, being responsible for the abuse of that privilege; and no law
shall ever be passed curtailing the liberty of speech or of the press.”), with U.S. CONST . Amend. 1
(“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”). Barnes
argues that we have consistently interpreted Texas’s constitutional recognition of free-speech rights
more broadly than its federal counterpart. See Davenport, 834 S.W.2d at 8–9 (“[O]ur free speech
provision is broader than the First Amendment.”). In Operation Rescue–National v. Planned
Parenthood of Houston and Southeast Texas, Inc., however, we clarified that “Article 1, Section 8
may be more protective of speech in some instances than the First Amendment, but if it is, it must
6
be because of the text, history, and purpose of the provision, not just simply because.” 975 S.W.2d
546, 559 (Tex. 1998) (first emphasis added) (internal citation omitted). We further concluded: “We
know of nothing to suggest that injunctions restricting speech should be judged by a different
standard under the state constitution than the First Amendment.” Id.
We need not determine whether the Texas Constitution provides greater protection than the
First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not
definitively addressed it. Rather, we reiterate the unremarkable proposition that in interpreting our
own constitution, we “should borrow from well-reasoned and persuasive federal procedural and
substantive precedent when this is deemed helpful, but should never feel compelled to parrot the
federal judiciary.” Davenport, 834 S.W.2d at 20. We look to federal cases for guidance, not as
binding authority. Id.
A. Classification of a Post-Adjudication Permanent Injunction Against Defamatory Speech
as a Prior Restraint
The first issue we must dispose of is whether a permanent injunction prohibiting future
speech related to statements that have been adjudicated defamatory is a prior restraint. If it is not,
then our constitutional concerns regarding the use of prior restraints are inapplicable. This question
highlights the distinction Kinney emphasizes between permanent injunctions on speech adjudicated
defamatory and pretrial temporary injunctions on allegedly defamatory speech. Kinney argues that
this distinction is meaningful. We disagree—as to the question presented, it is a distinction without
a difference.
7
We have squarely held that a temporary injunction prohibiting allegedly defamatory speech
is an unconstitutional prior restraint, but we have not specifically addressed the propriety of a post-
adjudication permanent injunction in a defamation case. See Hajek v. Bill Mowbray Motors, Inc.,
647 S.W.2d 253, 255 (Tex. 1983) (per curiam). In Hajek, the plaintiff sought and obtained a
temporary injunction restraining the defendant from driving his car around the community with a
message painted on all four sides that Bill Mowbray Motors sold him a “lemon.” Id. at 254. We
reversed, holding that the injunction was a prior restraint in violation of the Texas Constitution. Id.
at 255. Accordingly, we overturned the lower courts’ decisions granting the injunction.
Our decision in Hajek rested on the well-settled legal principles laid out in Ex parte Tucker.
In that case, the trial court enjoined the members of a worker’s union from “vilifying, abusing, or
using . . . epithets” against their employer. 220 S.W. 75, 75 (Tex. 1920). In overturning the
injunction, we relied on the dichotomy between the Texas Constitution’s affirmative grant of the
liberty to speak without fear of curtailment and the commensurate responsibility inherent in that
right. Id. at 76. We stated that “the abuse of the privilege . . . is not to be remedied by denial of the
right to speak, but only by appropriate penalties for what is wrongfully spoken.” Id. Accordingly,
we held that the injunction was beyond the power of the trial court to issue. Id.
Kinney contends that Hajek and Tucker classify as prior restraints only temporary injunctions
against speech that is alleged, but not proven, to be defamatory, and that these cases therefore do not
apply to a post-adjudication permanent injunction. But our holding that the injunctions were prior
restraints did not rest on their pretrial issuance. Rather, we took issue with the trial courts’ decision
8
to remedy the defendants’ abuse of their liberty to speak by preventing their future exercise of that
liberty. Id.; Hajek, 647 S.W.2d at 255.
In this case, Kinney’s request for injunctive relief may be broken down into two categories.
First, as reflected in the pleadings, Kinney would have the trial court order Barnes to remove the
statements at issue from his websites (and request that third-party republishers of the statements do
the same) upon a final adjudication that the statements are defamatory. Such an injunction does not
prohibit future speech, but instead effectively requires the erasure of past speech that has already
been found to be unprotected in the context in which it was made. As such, it is accurately
characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint. See
Hajek, 647 S.W.2d at 255.8
As Kinney confirmed at oral argument, however, his request is not so limited. Kinney would
also have the trial court permanently enjoin Barnes from making similar statements (in any form)
in the future. That is the essence of prior restraint and conflates the issue of whether an injunction
is a prior restraint with whether it is constitutional. As Professor Chemerinsky has aptly explained:
Courts that have held that injunctions are not prior restraints if they follow a trial, or
if they are directed to unprotected speech, are confusing the question of whether the
injunction is a prior restraint with the issue of whether the injunction should be
allowed. Injunctions are inherently prior restraints because they prevent future
speech.
8
Of course, the requirements for injunctive relief still must be met. A plaintiff must show that damages are
inadequate or cannot otherwise be measured by any pecuniary standard. Town of Palm Valley v. Johnson, 87 S.W .3d
110, 111 (Tex. 2001) (per curiam). And aside from constitutional free-speech considerations, we also express no opinion
on the propriety of an injunction that would order Barnes to seek removal of the statements from websites over which
he has no control. W e hold only that the constitutional concerns applicable to prior restraints are not present when the
injunction is limited to requiring removal of a published statement that has been adjudicated defamatory.
9
Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV . 157, 165 (2007); see
also Oakley, Inc. v. McWilliams, 879 F. Supp. 2d 1087, 1089 (C.D. Cal. 2012) (“Injunctions against
any speech, even libel, constitute prior restraints: they prevent[] speech before it occurs, by requiring
court permission before that speech can be repeated.” (citation and internal quotation marks
omitted)). Even in the few cases in which the Supreme Court has upheld a content-based injunction
against speech, it has not been because the injunction was not a prior restraint, but because under the
circumstances the restraint was deemed constitutionally permissible. See Kingsley Books, Inc. v.
Brown, 354 U.S. 436, 441–42 (1957) (beginning its analysis with the notion that “‘the protection
even as to previous restraint is not absolutely unlimited,’” while recognizing that “the limitation [on
such protection] is the exception” (quoting Near, 283 U.S. at 716)). Accordingly, we hold that an
injunction against future speech based on an adjudication that the same or similar statements have
been adjudicated defamatory is a prior restraint.9
However, “[l]abeling respondents’ action a prior restraint does not end the inquiry.” Se.
Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975). Notably, the U.S. Supreme Court has never
approved a prior restraint in a defamation case. Chemerinsky, 57 SYRACUSE L. REV . at 167; see,
e.g., Near, 283 U.S. at 706 (invalidating statute allowing courts to enjoin publication of future issues
of newspaper because previous editions were found to be “‘chiefly devoted to malicious, scandalous
9
The lack of a dispositive distinction between temporary and permanent injunctions as to the second category
of injunctive relief requested is highlighted by the requirements that must be satisfied to obtain a temporary injunction.
An applicant must “plead and prove,” among other things, “a probable right to the relief sought.” Butnaru v. Ford Motor
Co., 84 S.W .3d 198, 204 (Tex. 2002). Absent a showing of a likelihood of success on the merits, a temporary injunction
may not issue. In re Newton, 146 S.W .3d 648, 652 (Tex. 2004). W hile the standard to prevail at trial is certainly higher,
the effect of the permanent injunction is the same: speech is restrained before it occurs.
10
and defamatory articles’”). However, the Court has not decided whether the First Amendment
prohibits the type of injunction at issue in this case, leaving that question unsettled.10 Turning to the
issue of whether the injunction against future speech sought by Kinney, though a prior restraint, is
nevertheless permissible under the Texas Constitution, we hold that it is not.
B. Prior Restraints on Future Speech Related to Statements That Have Been Adjudicated
Defamatory Violate the Texas Constitution
Again, prior restraints bear a heavy presumption against their constitutionality. Davenport
v. Garcia, 834 S.W.2d 4, 9 (Tex. 1992); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963).
The proponent of such restraints thus “carries a heavy burden of showing justification for the
imposition of such a restraint.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). While
prior restraints are plainly disfavored, however, the phrase itself is not a “self-wielding sword,” but
a demand for individual analyses of how prior restraints will operate. Kingsley Books, 354 U.S. at
441–42. In examining the propriety of injunctive relief, then, we bear in mind the category of speech
sought to be enjoined and the effect of such relief on a person’s liberty to speak freely.11
10
The issue was presented to the Supreme Court in Tory v. Cochran. 544 U.S. 734 (2005). In that case, noted
attorney Johnnie Cochran sued Ulysses Tory, a former client, after Tory began engaging in activities such as picketing
Cochran’s office and sending the attorney threatening letters due to Tory’s dissatisfaction with Cochran’s services. Id.
at 735. Tory indicated that he would continue his activities barring a court order, and the trial court issued a permanent
injunction against Tory’s defamatory speech. Id. Tory appealed, presenting to the Supreme Court the very issue before
us today. Id. at 737 –38. However, Cochran died shortly after oral argument, and the Court sidestepped the question,
holding that Cochran’s death resulted in the injunction’s “los[ing] its underlying rationale” of protecting Cochran from
defamation. Id. at 738.
11
The parties dispute whether Kinney waived his argument that defamatory speech is not “protected” speech
under the Texas and U.S. Constitutions. W e resolve this dispute by stating only that we cannot divorce the type and
quality of speech at issue— in this case, defamatory speech— from the constitutionality of restraining it.
11
1. Texas Law Comports with the Traditional Rule That Injunctive Relief Is Not Available
in Defamation Actions
“The traditional rule of Anglo-American law is that equity has no jurisdiction to enjoin
defamation.” Chemerinsky, 57 SYRACUSE L. REV . at 167 (explaining that the rule dates back to
eighteenth-century England and was adopted “with remarkable uniformity” by nineteenth- and
twentieth-century American courts); see also, e.g., Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir.
1991) (“[T]he maxim that equity will not enjoin a libel has enjoyed nearly two centuries of
widespread acceptance at common law.”). Our treatment of the temporary injunctions in Ex parte
Tucker and Hajek, and more recent decisions on prior restraints, leave no doubt that the current state
of Texas law is in accordance with this traditional rule with regard to future speech.
We have indicated that a prior restraint may be permissible “only when essential to the
avoidance of an impending danger,” Davenport, 834 S.W.2d at 9, and only when it is the least
restrictive means of preventing that harm, Ex parte Tucci, 859 S.W.2d 1, 6 (Tex. 1993); see also
Hajek, 647 S.W.2d at 255; Ex parte Tucker, 220 S.W. at 76.12 We explained in Tucker the
significant distinction between curtailing a person’s liberty of speech, which the Texas Constitution
forbids, and penalizing a person’s abuse of that liberty, which the Constitution allows:
The purpose of [Article I, Section 8] is to preserve what we call ‘liberty of
speech’ and ‘the freedom of the press,’ and at the same time hold all persons
accountable to the law for the misuse of that liberty or freedom. Responsibility for
the abuse of the privilege is as fully emphasized by its language as that the privilege
itself shall be free from all species of restraint. But the abuse of the privilege, the
12
Applying that concept in the context of reviewing a gag order, we held in Davenport that such an order “will
withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and
irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial
action represents the least restrictive means to prevent that harm.” 834 S.W .2d at 10.
12
provision commands, shall be dealt with in no other way. It is not to be remedied by
denial of the right to speak, but only by appropriate penalties for what is wrongfully
spoken. Punishment for the abuse of the right, not prevention of its exercise, is what
the provision contemplates. There can be no liberty in the individual to speak,
without the unhindered right to speak. It cannot co-exist with a power to compel his
silence or fashion the form of his speech. Responsibility for the abuse of the right,
in its nature pre-supposes freedom in the exercise of the right. It is a denial of the
authority, anywhere, to prevent its exercise.
220 S.W. at 76. Citing Tucker, we plainly stated in Hajek that “[d]efamation alone is not a sufficient
justification for restraining an individual’s right to speak freely.” 647 S.W.2d at 255. Our courts
of appeals have continued to recognize that the appropriate remedy for defamation is damages, not
injunctive relief. See, e.g., Cullum v. White, 399 S.W.3d 173, 189 (Tex. App.—San Antonio 2011,
no pet.); Brammer v. KB Home Lone Star, LP, 114 S.W.3d 101, 108 (Tex. App.—Austin 2003, no
pet.) (“Although the specific damages sustained from defamation and business disparagement-related
activity is often difficult to measure, it is nonetheless well established that this type of harm does not
rise to the level necessary for the prior restraint to withstand constitutional scrutiny.”).
2. Injunctions Cannot Effectively Remedy the Harm Caused by Defamation Without
Chilling Protected Speech
Contending that Hajek “ignored decades of intervening precedent from the U.S. Supreme
Court,” Kinney relies on Supreme Court case law upholding injunctions in the context of obscenity
and commercial speech to argue that post-trial injunctions against defamatory speech are consistent
with the First Amendment. In Kingsley Books, for example, the Supreme Court considered a New
York statute that allowed municipalities to bar the continued sale of written and printed materials
adjudicated obscene. 354 U.S. at 437. The Supreme Court upheld the statute, holding that it
“studiously withholds restraint upon matters not already published and not yet found offensive.” Id.
13
at 445. By contrast, the Court held, the statute struck down in Near v. Minnesota had empowered
the courts “to enjoin the dissemination of future issues of a publication because its past issues had
been found offensive.” Id.
And in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, the Supreme
Court upheld an administrative order prohibiting a newspaper from continuing to run gender-specific
help-wanted ads pursuant to the enforcement of a local anti-discrimination law. 413 U.S. 376, 379
(1973). The Court concluded that the speech at issue constituted illegal commercial speech, holding
that the injunction “d[id] not endanger arguably protected speech” and was therefore permissible.
Id. at 390.
Even after these decisions, several courts addressing the issue presented here have continued
to adhere to the traditional rule that defamation alone will not justify an injunction against future
speech. See Metro. Opera Ass’n v. Local 100, 239 F.3d 172, 177 (2d Cir. 2001); Oakley, Inc. v.
McWilliams, 879 F. Supp. 2d 1087, 1090 (C.D. Cal. 2012); Tilton v. Capital Cities/ABC Inc., 827
F. Supp. 674, 681 (N.D. Okla. 1993) (“The fundamental law of libel in both Oklahoma and Texas
is that monetary damages are an adequate and appropriate remedy and that injunctive relief is not
available.”); New Era Publ’ns Int’l v. Henry Holt & Co., 695 F. Supp. 1493, 1525 (S.D.N.Y. 1988)
(“[W]e accept as black letter that an injunction is not available to suppress defamatory speech.”);
Demby v. English, 667 So. 2d 350, 355 (Fla. Ct. App. 1995) (per curiam) (noting that the claim for
injunctive relief was “frivolous” in light of the “well-established rule that equity will not enjoin
either an actual or a threatened defamation” (citation and internal quotation marks omitted)); Willing
v. Mazzocone, 393 A.2d 1155, 1157–58 (Pa. 1978) (holding that a permanent injunction against
14
defamatory speech violated a provision of the Pennsylvania Constitution that is substantially similar
to Article I, Section 8 of the Texas Constitution). By contrast, a small number of states have cited
the Supreme Court cases referenced above in holding that narrowly drawn, post-trial injunctions
against defamatory speech are constitutional. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky.
2010); St. James Healthcare v. Cole, 178 P.3d 696 (Mont. 2008); Balboa Island Vill. Inn, Inc. v.
Lemen, 156 P.3d 339 (Cal. 2007); Retail Credit Co. v. Russell, 218 S.E.2d 54 (Ga. 1975); O’Brien
v. Univ. Cmty. Tenants Union, Inc., 327 N.E.2d 753 (Ohio 1975); see also Lothschuetz v. Carpenter,
898 F.2d 1200 (6th Cir. 1990).
In Balboa, for example, the trial court found that Lemen had made defamatory statements
about the Balboa Village Inn and issued a permanent injunction prohibiting her from engaging in
numerous acts, including repeating those statements. 156 P.3d at 342. The California Supreme
Court described Kingsley Books and Pittsburgh Press as holding that “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.” Id. at 346–47. The court concluded that, while the particular
injunction at issue in Balboa was overbroad, a court may issue an injunction prohibiting a person
from repeating statements that have been adjudicated defamatory following a trial on the merits. Id.
at 349–50.
We do not read Kingsley Books and Pittsburgh Press so broadly and decline to extend their
holdings to the defamation context. To that end, we agree with the district court in Oakley that
injunctions against defamation are impermissible because they are necessarily “ineffective,
15
overbroad, or both.” 879 F. Supp. 2d at 1090. That is, “[a]ny effective injunction will be overbroad,
and any limited injunction will be ineffective.” Chemerinsky, 57 SYRACUSE L. REV . at 171.
On the one hand, for any injunction to have meaning it must be effective in its purpose. See
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 565 (1976) (assessing “the probable efficacy of prior
restraint on publication as a workable method” of accomplishing its purpose); N.Y. Times Co. v.
United States, 403 U.S. 713, 744 (1971) (Marshall, J., concurring) (“It is a traditional axiom of
equity that a court of equity will not do a useless thing . . . .”). The narrowest of injunctions in a
defamation case would enjoin the defamer from repeating the exact statement adjudicated
defamatory. Such an order would only invite the defamer to engage in wordplay, tampering with the
statement just enough to deliver the offensive message while nonetheless adhering to the letter of
the injunction. Kinney admitted as much at oral argument, agreeing that the injunction he is seeking
would extend to speech that was “substantially the same” or made “non-substantive changes” to the
statement that has been adjudicated defamatory.
But expanding the reach of an injunction in this way triggers the problem of overbreadth.
Overbroad restrictions on speech are unconstitutional because of their potential to chill protected
speech. See Comm’n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 435 (Tex. 1998) (“An
overbroad statute sweeps within its scope a wide range of both protected and non-protected
expressive activity.” (citation and internal quotation marks omitted)); Ashcroft v. Free Speech Coal.,
535 U.S. 234, 237 (2002) (“The overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected speech is prohibited or chilled in the
process.”). In the defamation context, the concern is that in prohibiting speech found to be
16
defamatory, the injunction unreasonably risks prohibiting nondefamatory speech as well. See
Lawson v. Murray, 515 U.S. 1110, 1114 (1995) (Scalia, J., concurring in denial of writ of certiorari)
(“The danger that speech-restricting injunctions may serve as a powerful means to suppress
disfavored views is obvious enough even when they are based on a completed or impending
violation of law.”).
The particular difficulty in crafting a proper injunction against defamatory speech is rooted
in the contextual nature of the tort. In evaluating whether a statement is defamatory, the court
construes it “as a whole in light of surrounding circumstances based upon how a person of ordinary
intelligence would perceive the entire statement.” Musser v. Smith Protective Servs., Inc., 723
S.W.2d 653, 655 (Tex. 1987). Given the inherently contextual nature of defamatory speech, even
the most narrowly crafted of injunctions risks enjoining protected speech because the same statement
made at a different time and in a different context may no longer be actionable. Untrue statements
may later become true; unprivileged statements may later become privileged.
Kinney dismisses this concern, arguing that in such a scenario the defamer “could speak
confident in the knowledge that [the enjoined statement is] no longer defamatory.” But how
confident could such a speaker be when he is bound by an injunction not to speak? The California
Supreme Court suggested in Balboa that “[i]f such a change in circumstances occurs, [the] defendant
may move the court to modify or dissolve the injunction.” 156 P.3d at 353. We think it is no answer
that a person must request the trial court’s permission to speak truthfully in order to avoid being held
in contempt. See Pittsburgh Press, 413 U.S. at 390 (“The special vice of a prior restraint is that
communication will be suppressed, either directly or by inducing excessive caution in the speaker,
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before an adequate determination that it is unprotected by the First Amendment.”); see also Balboa,
156 P.3d at 357 (Kennard, J., dissenting) (“Requiring a citizen to obtain 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.” (quoting Near, 283 U.S. at
713, and Kingsley Books, 354 U.S. at 445)).
These concerns apply even more forcefully to an injunction that goes beyond restraining
verbatim recitations of defamatory statements and encompasses statements that are “substantially
similar.” Subtle differences in speech will obscure the lines of such an injunction and make it
exceedingly difficult to determine whether a statement falls within its parameters. Balboa, 156 P.3d
at 356 (Kennard, J., dissenting in part); Oakley, 879 F. Supp. 2d at 1091 (noting that “a ‘similar
statement’ standard would require a court enforcing the injunction to continuously decide whether
new statements by a persistent defendant were sufficiently similar”). For example, let us imagine
a trial court enjoins a defendant from repeating the defamatory statement “John Smith sells handguns
to minors,” as well as similar statements. Can the defamer state more generally that Smith is
engaged in the business of illegal gun sales or that Smith’s business contributes to the nationwide
problems with school shootings? Can the word “handgun” be changed to “shotgun”?13
13
The Oakley court proposed the following conundrum:
If a court enjoined the word “thief,” would related words like pilferer, looter, pillager, plunderer,
poacher, and rustler also support the finding of willfulness necessary to hold the speaker in contempt?
How about bandit? Pirate? W hat about phrases, e.g., “she was in the habit of converting other
people’s property to her own property?” Or further into abstraction, “she may take liberties with your
property” or “count your silverware after she leaves your home?”
879 F. Supp. 2d at 1091.
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These uncertainties highlight the inapplicability of the Supreme Court’s obscenity cases. A
permanent injunction restraining a theater owner from screening a film adjudicated to be obscene
clearly applies only to that film, and others may be shown without the fear of contempt sanctions.
See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55–56 (1973) (upholding statute allowing civil
injunction restraining exhibition of two films following adjudication that the films were obscene).
Pittsburgh Press, while it involved commercial speech rather than obscenity, is similarly
distinguishable. In that case, as noted above, the Supreme Court upheld an administrative order
prohibiting a newspaper from continuing a practice of running gender-specific help-wanted ads
pursuant to the enforcement of a local anti-discrimination law. 413 U.S. at 389–90. The Court
stressed, however, that the order upheld could not be punished with contempt proceedings and “d[id]
not endanger arguably protected speech” because it did not require speculation as to the effect of
publication. Id. at 390 & n.14. As discussed above, this certainty does not translate to the
defamation context, in which the task of crafting an effective injunction against future speech risks
enjoining constitutionally protected speech to an unacceptable degree.
By contrast, no such concerns arise when courts issue speech-related injunctions that are not
prior restraints, such as ordering the deletion of defamatory statements posted on a website. There
is a legally cogent division between mandatory injunctions calling for the removal of speech that has
been adjudicated defamatory and prohibitive injunctions disallowing its repetition. The latter
impermissibly chills protected speech; the former does not. The distinction thus arms trial courts
with an additional tool to protect defamed parties while ensuring the State does not infringe upon
the fundamental right to free speech guaranteed by Article I, Section 8.
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Accordingly, we hold that the Texas Constitution does not permit injunctions against future
speech following an adjudication of defamation. Trial courts are simply not equipped to comport
with the constitutional requirement not to chill protected speech in an attempt to effectively enjoin
defamation. Instead, as discussed below, damages serve as the constitutionally permitted deterrent
in defamation actions.
C. Damages Are Generally the Proper Remedy for Defamation
In keeping with Texas’s longstanding refusal to allow injunctions in defamation cases, the
well-settled remedy for defamation in Texas is an award of damages. Ex parte Tucker, 220 S.W. at
75–76; Cullum, 399 S.W.3d at 189; Brammer, 114 S.W.3d at 108. This can include economic
damages like lost income, noneconomic damages like loss of reputation and mental anguish, and
even punitive damages upon a finding of actual malice. Hancock v. Variyam, 400 S.W.3d 59, 65–66
(Tex. 2013). And imposition of damages has long been held to be an effective tool against defamers.
See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 277 (1964) (“The fear of damage awards . . . may be
markedly more inhibiting than the fear of prosecution under a criminal statute.”).
Kinney raises the concern that a victim of defamatory speech by a judgment-proof, serial
defamer can obtain no remedy in damages. Damages may not deter the serial defamer, either
because she lacks the funds to pay the damages or because she has so much money that paying a
series of fines is immaterial to her. It is also easy to imagine a scenario in which an award of
damages, even if collectible, will not provide complete relief to the defamed plaintiff. Imagine a
statement falsely accusing a person of pedophilia, for example. Presumably, an order prohibiting
the statement from being repeated would be of paramount importance to the plaintiff. This scenario
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was discussed at length in Balboa, the logic of which does not escape us. 156 P.3d at 351 (“Thus,
a judgment for money damages will not always give the plaintiff effective relief from a continuing
pattern of defamation.”). However, the constitutional protections afforded Texas citizens are not tied
to their financial status. See, e.g., id. at 358 (Kennard, J., concurring) (“[N]either 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.”). As the Pennsylvania Supreme Court concluded in Willing, “[w]e cannot accept . . .
that the exercise of the constitutional right to freely express one’s opinion should be conditioned
upon the economic status of the individual asserting that right.” 393 A.2d at 1158. Yet,
conditioning the allowance of prior restraints on a defendant’s inability to pay a damage award
would do just that.
Moreover, the concern that damages will not provide an effective remedy in defamation cases
is not a new one, but we have never deemed it sufficient to justify a prior restraint. For example, in
defamation per se cases, nominal damages, not injunctive relief, are awarded when actual damages
are difficult to prove or are not claimed because “‘the action is brought for the purpose of vindicating
the plaintiff’s character by a verdict of a jury that establishes the falsity of the defamatory matter.’”
Hancock, 400 S.W.3d at 65 (quoting RESTATEMENT (SECOND ) OF TORTS § 620 cmt. a (1977)). And
the Supreme Court has expressly recognized that the potential inadequacy of damages as a remedy
for defamation does not open the door to additional relief, stating: “The destruction that defamatory
falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect
though it is, an action for damages is the only hope for vindication or redress the law gives to a man
whose reputation has been falsely dishonored.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 22–23
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(1990) (citation and internal quotation marks omitted). Applying the same reasoning, we too decline
to open the door to prior restraints in this context.
D. The Advent of the Internet
Finally, we address Kinney’s argument that the Internet is a game-changer with respect to the
issue presented because it “enables someone to defame his target to a vast audience in a matter of
seconds.” The same characteristics that have cemented the Internet’s status as the world’s greatest
platform for the free exchange of ideas, Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870
(1997)—the ease and speed by which any person can take on the role of the town crier or
pamphleteer—have also ignited the calls for its receiving lesser protection. See, e.g., Lyrissa Barnett
Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace, 49 DUKE L.J. 855, 863–64
(Feb. 2000).
However, the Supreme Court has steadfastly refused to make free speech protections a
moving target, holding that “[w]e must decline to draw, and then redraw, constitutional lines based
on the particular media or technology used to disseminate political speech from a particular speaker.”
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 326 (2010). And, with respect to the advent
of the Internet, the Court has gone further in championing its role as an equalizer of speech and a
gateway to amplified political discourse, holding in Reno that there is “no basis for qualifying the
level of First Amendment scrutiny that should be applied to this medium.” 521 U.S. at 870. In this
way, the Supreme Court has taken a definitive stance guaranteeing equal First Amendment
protection for speech over the Internet. The Court has also recognized that damages, while
“imperfect,” are the remedy the law gives to defamation victims. Milkovich, 497 U.S. at 22–23
22
(citation and internal quotation marks omitted). We are not persuaded that the policy concerns that
Kinney raises justify enjoining defamatory speech in a manner that substantially risks chilling
constitutionally protected speech.
One final note is warranted in response to Kinney’s assertion that the case for injunctive
relief is made more compelling by the need to address the phenomena of cyber-bullying and online
hate speech. It is enough to say that neither of those is at issue here. Today we simply continue to
hold that “[d]efamation alone is not a sufficient justification for restraining an individual’s right to
speak freely.” Hajek, 647 S.W.2d at 255 (emphasis added). But as discussed above, we have never
held that all injunctions against future speech are per se unconstitutional, recognizing that they may
be warranted to restrain speech that poses a threat of danger. Id. We need not and do not address
the propriety of a requested injunction against speech that is not at issue, nor should we without
analyzing the facts and circumstances underlying such a request.
III. Conclusion
In evaluating whether state action exceeds constitutional bounds governing freedom of
speech, courts “must give the benefit of any doubt to protecting rather than stifling speech.” Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 469 (2007). We hold that, while a
permanent injunction requiring the removal of posted speech that has been adjudicated defamatory
is not a prior restraint, an injunction prohibiting future speech based on that adjudication
impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional
infringement on Texans’ free-speech rights under Article I, Section 8 of the Texas Constitution.
Because the trial court concluded that no injunction of any kind would be permissible, the court erred
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in granting summary judgment to the extent Kinney’s requested injunction did not constitute a prior
restraint. We therefore reverse the court of appeals’ judgment and remand the case to the trial court
for further proceedings consistent with this opinion.
_________________________________
Debra H. Lehrmann
Justice
OPINION DELIVERED: August 29, 2014
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