Bach Hac Nguyen and Thang Bui v. Maya Dangelas ( 2019 )

Opinion issued December 31, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00790-CV
———————————
THANG BUI AND BACH HAC NGUYEN, Appellants
V.
MAYA DANGELAS, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2018-55787
MEMORANDUM OPINION
This is the second interlocutory appeal Thang Bui and Monique Nguyen
have brought to challenge rulings made by the trial court in a defamation suit
brought against them by Maya Dangelas. Their first interlocutory appeal
challenged the trial court’s denial of their motion to dismiss Dangelas’s suit under
the Texas Citizens Participation Act.1 After concluding that Dangelas met her
burden to make a prima facie showing that Bui and Nguyen’s Facebook posts
about her were defamatory and made with malice, we affirmed the denial of their
TCPA motion. 2
This second interlocutory appeal challenges the temporary injunction issued
against Bui and Nguyen that required them to delete existing Facebook posts if
they either (1) “encourag[ed] that violence be inflicted on [Dangelas] or her
family” or (2) provided Dangelas’s “address or the addresses of her family
members.” The temporary injunction states that it issued “to preserve the status
quo between the parties pending a trial on the merits” and to protect Dangelas’s
right to, among other things, “physical safety.”
In four issues, Bui and Nguyen contend the trial court abused its discretion
in issuing the temporary injunction. The thrust of their complaint is expressed in
the following statement from their appellate brief: “Damages, and not prospective
injunctive relief, serve as the constitutionally permitted deterrent in defamation
actions.” Here, though, the trial court’s injunctive order did not grant prospective
injunctive relief. And there was evidence of concerns about physical harm in
1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
2
For additional background information concerning the Facebook posting by Bui
and Nguyen as well as responsive postings by others in the Vietnamese-American
refugee community, see Bui v. Dangelas, No. 01-18-01146-CV, 2019 WL
5151410 (Tex. App.—Houston [1st Dist.] Oct. 15, 2019, no pet. h.) (mem. op.).
2
response to the Facebook posts that supported returning the parties to the status
quo until the defamatory nature of the posts could be litigated.
Because the trial court did not abuse its discretion in granting the temporary
injunction, we affirm.
Standard of Review
A temporary injunction preserves the status quo of litigation’s subject matter
pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002); Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993). A temporary
injunction is an extraordinary remedy and does not issue as a matter of right.
Butnaru, 84 S.W.3d at 204; Walling, 863 S.W.2d at 57. To obtain a temporary
injunction, the applicant must plead and prove three specific elements: (1) a cause
of action against the defendant; (2) a probable right to the relief sought; and (3) a
probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at
204; Walling, 863 S.W.2d at 57. An injury is irreparable if the injured party cannot
be adequately compensated in damages or if the damages cannot be measured by
any certain pecuniary standard. Butnaru, 84 S.W.3d at 204. Whether to grant or
deny a temporary injunction is within a trial court’s sound discretion. Id. A
reviewing court will reverse an order granting injunctive relief if the trial court
abused its discretion. Id.; Walling, 863 S.W.2d at 58.
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Whether the Status Quo was
Before or After Bui and Nguyen’s Posts were Published
A temporary injunction does not determine the rights of the parties or the
merits of their claims but, instead, merely preserves the status quo until those rights
may be determined upon final trial on the merits. Butnaru, 84 S.W.3d at 204; City
of San Antonio v. Hamilton, 180 S.W. 160, 162 (Tex. Civ. App.—San Antonio
1915, no writ). The status quo is defined as the last actual, peaceable, noncontested
status that preceded the pending controversy. In re Newton, 146 S.W.3d 648, 651
(Tex. 2004). “If an act of one party alters the relationship between that party and
another, and the latter contests the action, the status quo cannot be the relationship
as it exists after the action.” Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d
246, 249 (Tex. App.—San Antonio 1984, writ ref’d n.r.e.); Layton v. Ball, 396
S.W.3d 747, 753 (Tex. App.—Tyler 2013, no pet.).
Bui and Nguyen argue that the moment in time that should be considered the
status quo is after they published their Facebook posts, meaning that a temporary
injunction could not require the parties to return to positions that pre-dated
publication of posts about Dangelas on Facebook. This is similar to the argument
rejected in Layton.
In Layton, the owners of a shooting range challenged an injunction order that
restricted their operation of the shooting range, arguing that the status quo was the
ongoing operation of the business because it was already in operation when nearby
4
homeowners filed suit to close it. 396 S.W.3d at 754. The shooting range owners’
argument erroneously “presupposes that the activity conducted on the date suit was
filed necessarily controls the status quo determination.” Id. Instead, “the status quo
is the last actual, peaceable, noncontested status that preceded the controversy.” Id.
Just because it may have taken time “before the danger became apparent” and suit
was brought, the delay does “not necessarily fix the status quo on the date suit was
filed.” Id. On appeal, the reviewing court held that the trial court did not abuse its
discretion in determining that “the last actual, peaceable, noncontested status that
preceded the controversy was prior to the property’s use as a shooting range.” Id.
Similarly, here, the last actual, peaceable, noncontested status that preceded the
controversy between Bui and Nguyen on the one hand and Dangelas on the other
was before Bui and Nguyen posted inflammatory accusations about Dangelas on
Facebook that evoked responsive posts threatening violence against Dangelas.
Bui and Nguyen admit they have never met Dangelas. Their connection to
her is limited to their having researched her on the internet, developed theories
about her political and ideological beliefs and family dynamics, and then espoused
those theories online, accusing her of being a Viet Cong operative funneling
communist money into the United States to bribe locals, support communist
causes, and harm the local Vietnamese-American refugee population. There was
peace—in fact, zero connection—between the parties before Bui and Nguyen
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published their accusations online. And it was their posts that prompted the safety
concerns for Dangelas and her children as threats of bodily harm filled their
replies. Here, the status quo was the period before Bui and Nguyen’s posts were
uploaded onto Facebook alleging Dangelas was an international spy who would
harm the Vietnamese-American refugee community, eliciting threats of violence
against her, and providing her home address to those provoked to violence.
We reject Bui and Nguyen’s contention that the status quo to which the
temporary injunction would return the parties could not pre-date the publication of
their Facebook posts. This argument provides no basis for overturning the
injunction order.
Whether the Temporary Injunction Impermissibly
Grants “Prospective Injunctive Relief”
Bui and Nguyen rely on Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014), to
argue that injunctive relief cannot issue in a suit for defamation. Kinney is an
expansive Texas Supreme Court opinion that grapples with the intersection of
judicial determinations of defamation and prospective injunctions seeking to
prevent future speech. Id. at 98–101. That is not the situation here. The trial court’s
injunction is not a prohibitive injunction that restrains future speech. It is, instead,
a mandatory injunction that required an act—specifically, the deletion of two
specific categories of Facebook posts already published. See id. at 99 (discussing
“cogent division” between mandatory injunctions calling for removal of speech
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and prohibitive injunctions disallowing future speech). The holding in Kinney
regarding the remedy of prospective injunctions to restraint future speech is
inapplicable to these facts. See id.; Landry’s, Inc. v. Animal Legal Def. Fund, 566
S.W.3d 41, 66–67 (Tex. App.—Houston [14th Dist.] 2018, pet. granted) (likewise
noting distinction between prospective injunctions and mandatory injunctions in
context of defamation suit); Cummins v. Bat World Sanctuary, No. 02-12-00285-
CV, 2015 WL 1641144, at *26 (Tex. App.—Fort Worth Apr. 9, 2015, pet. denied)
(same).
This suit does not involve prospective injunctions. There is no basis to
overturn the injunctive order on this basis.
Whether a Justiciable Controversy Exists with regard to the
Deletion of Facebook Posts that Encourage Violence
Bui and Nguyen present various arguments why the First Amendment
prevents the issuance of a temporary injunction requiring them to delete posts that
encourage violence against Dangelas. One might infer from their arguments that
Bui and Nguyen are challenging this restriction because they seek to resurrect
deleted posts that might call for violence. But their pleadings negate that inference.
In pleadings to this Court, Bui and Nguyen have asserted that their Facebook
posts did not threaten Dangelas or encourage violence against her in any way;
instead, other people replied to Bui and Nguyen’s posts with perceived calls for
violence that Bui and Nguyen claim not to have endorsed. Bui and Nguyen do not
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point to any particular posts of theirs that they have removed as responsive to the
description of “encouraging that violence by inflicted on [Dangelas] or her
family.” Further, in their brief, they confirm that they do not intend to publish posts
in the future to encourage violence against Dangelas or her family regardless of the
outcome of this appeal.
Bui and Nguyen may have removed some of their own posts in the process
of removing potentially threatening replies they received, but their argument has
always been that their own posts were not threatening and did not encourage
violence.3 Thus, on this record, it is unclear that the temporary injunction actually
required the deletion of any past speech by Bui and Nguyen. Bui and Nguyen point
to none.
To the extent Bui and Nguyen deleted their own posts because those posts
received replies that were threatening to Dangelas, we see two insurmountable
3
Bui and Nguyen agree that true threats are not protected by the First Amendment.
See Virginia v. Black, 538 U.S. 343, 359 (2003) (stating that First Amendment
leaves states free to ban speech amounting to a “true threat”). True threats include
statements in which the speaker communicates an intent to commit an act of
unlawful violence to a particular individual or group of individuals, regardless of
whether the speaker actually intends to carry out the threat. Id. at 359–60. Even if
the threat of violence is a subjectively false, it is not worthy of constitutional
protection. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)
(discussing defamation and First Amendment); Schenck v. United States, 249 U.S.
47, 52 (1919) (no First Amendment right to falsely yell “fire” in a crowded
theater); Garcia v. State, 583 S.W.3d 170, 175 (Tex. App.—Dallas 2018, pet.
ref’d) (concluding that Facebook post that pondered shooting police officers was
unprotected true threat and that First Amendment did not insulate against
prosecution under Texas Penal Code section 22.07(a)(1) for making a terroristic
threat).
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problems with Bui and Nguyen seeking to overturn the temporary injunction as to
that narrow category of posts. First, Bui and Nguyen have made no legal argument
supported by citation to legal authority regarding how the First Amendment
protects against deletion of someone else’s threatening post made in reply to one’s
own post. See TEX. R. APP. P. 38.1(i). Second, their argument fails to account for
the ability, within Facebook, to delete another’s reply without also deleting one’s
own post.4 Bui and Nguyen had the technical ability to delete others’ threatening
replies without also deleting their own non-offending posts, and they do not argue
that their own First Amendment rights protect against such deletions.
We conclude that Bui and Nguyen have not presented a justiciable
controversy related to the portion of the temporary injunction that required the
deletion of posts “encouraging that violence by inflicted on [Dangelas] or her
family.” The scope of the temporary injunction was precise, requiring deletion of
only those posts that “encourage[ed] . . . violence” against Dangelas and her
family. Bui and Nguyen’s position is that their own past posts did not encourage
violence. They fail to identify any of their own past posts that they deleted to
comply with the temporary injunction order. They further fail to articulate a legal
argument or cite to legal authority for First Amendment protections for others’
4
See, e.g., Harry Guinness, How to Remove Other People’s Comments from Your
Facebook Posts, https://www.howtogeek.com/311121/how-to-remove-other-
people%E2%80%99s-comments-from-your-facebook-posts/ (How-To Geek, July
12, 2017).
9
posts made in reply to their own posts, to the extent they deleted others’
threatening posts. In sum, Bui and Nguyen have not shown that the injunction
against posts that encourage violence affected them or required deletion of
particular posts they published. Without any showing that the backward-looking-
only injunction impacted them, and having acknowledged that the injunction does
not restrict their future actions or speech, Bui and Nguyen have not presented any
basis to challenge this portion of the injunction. See Russell v. Metro. Transit Auth.
of Harris Cty., 343 S.W.3d 825, 833 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (“For a justiciable controversy to exist, there must be a real and substantial
controversy involving a genuine conflict of tangible interests and not merely a
theoretical dispute.”).
Whether the Trial Court Erred in Including within the Temporary Injunction
a Provision Requiring the Deletion of Facebook Posts
that Announced Dangelas’s Addresses
The only other category of Facebook posts the temporary injunction required
to be deleted were those “mentioning [Dangelas]’s address or the addresses of her
family members.” Bui and Nguyen argue that the publication of a person’s address
is not a threat, is not defamatory, and is not subject to mandated deletion because it
enjoys First Amendment protections. Their argument ignores the connection
established by Dangelas at the temporary injunction hearing and accepted by the
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trial court through its injunctive order between the challenged posts and Dangelas’s
recognized safety concerns.
To obtain injunctive relief, one must establish a probable imminent and
irreparable injury before trial on the merits can be completed. Butnaru, 84 S.W.3d
at 204. This requirement includes elements of imminent harm, irreparable injury,
and no adequate remedy at law. Shor v. Pelican Oil & Gas Mgmt., LLC, 405
S.W.3d 737, 750 (Tex. App.–Houston [1st Dist.] 2013, no pet.). An injury is
irreparable if the injured party cannot be adequately compensated in damages or if
the damages cannot be measured by any certain pecuniary standard. Butnaru, 84
S.W.3d at 204; Savering v. City of Mansfield, 505 S.W.3d 33, 49 (Tex. App.—Fort
Worth 2016, pet. denied).
Dangelas’s cause of action is defamation. She presented evidence of posts
published by Bui and Nguyen indicating that Dangelas is a Viet Cong spy living
among the Vietnamese-American refugee population intending to further
communist objectives and undermine the community. She presented evidence that
these accusations alarmed some in the Vietnamese-American community and
resulted in reply posts that called for violence against Dangelas and her children. In
that context, with threatening posts abounding, Bui and Nguyen continued to post
about Dangelas, making additional accusations of communist sympathies and also
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publishing the home address for Dangelas and her youngest daughter as well as the
home address for each of her older daughters.
The potential irreparable injury that Dangelas sought to avoid through the
issuance of an injunction was not merely the damage to her reputation that might
occur because Bui and Nguyen’s posts were defamatory. The predominate
potential injury was the danger that irreparable physical harm might result.
If Bui and Nguyen’s posts are later determined to be defamatory at the trial
on the merits, they will be devoid of First Amendment protections and subject to
removal. See Kinney, 443 S.W.3d at 93; Landry’s, 566 S.W.3d at 66–67. With their
removal, those who would promote violence against accused Viet Cong spies
would have to actively search elsewhere for targets for their ire instead of passively
relying on the fortuitous public listing of a home address where this particular
alleged Viet Cong spy could be found. We cannot agree that Dangelas must wait
until the defamatory nature of Bui and Nguyen’s posts is determined to obtain
judicial relief from the possibility of violence against her should someone use the
provided address to cause harm.
The posts at issue in this suit are distinguishable from those discussed in
Kinney and Landry’s in that these parties concede Bui and Nguyen’s posts were
met with calls for violence against Dangelas. It was in that context that Bui and
Nguyen provided Dangelas’s home addresses, relieving any would-be violent
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perpetrator of the need to investigate and obtain such information on their own,
should they resolve to act on their violent threats. This is dangerous. And it was
within the trial court’s equitable powers to address the probable risk of irreparable
injury—in the form of physical violence—through issuance of a narrow temporary
injunction to remove posts identifying Dangelas’s home address in the context of
active threats against her by others. See Rhodia, Inc. v. Harris Cty., 470 S.W.2d
415, 419–20 (Tex. Civ. App.—Houston [1st Dist.] 1971, no writ) (discussing
equitable injunction powers available to courts to issue temporary mandatory
injunctions addressed to safety and health). Further, this aspect of the temporary
injunction assisted in returning the parties to the status quo before inflammatory
accusations were made about Dangelas by Bui and Nguyen, others replied with
threats of violence against Dangelas and her family, and Bui and Nguyen supplied
the location where the Dangelas family could be found.
The injury the temporary order addressed by requiring the deletion of posts
announcing Dangelas home addresses went beyond reputational damages to
include irreparable physical harm from violence, and it issued in response to
articulated, documented threats made in reply-posts to allegedly defamatory
speech. In that context, the trial court’s equitable powers permit the return of the
parties to the status quo through a narrow mandatory injunction requiring the
removal of posts identifying Dangelas’s home addresses to those who have
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announced threats of violence against her and her family. An injunction can issue
to return the parties to the status quo and protect against the danger of violence as
the parties await determination of the merit of the claims. See id.; Int’l Ladies’
Garment Workers’ Local Union No. 123 v. Dorothy Frocks Co., 95 S.W.2d 1346,
1349 (Tex. Civ. App.—San Antonio 1936, no writ) (concluding that trial court did
not abuse its discretion in granting temporary injunction that temporarily limited
free speech picketing after receiving evidence of potential for violence, and noting
that “courts of equity are vested with power and authority to act promptly and
effectively in emergencies to protect” those involved and that “the rights of all
parties can be tried out on the merits in due course”).
Here, the trial court received evidence of the real possibility of physical
harm to Dangelas and her children because some portion of the Vietnamese-
American refugee population had read Bui and Nguyen’s unsubstantiated
accusations, expressed their belief that violence was an appropriate response, and
had been given the address to engage in violent acts against Dangelas and her
children. Dangelas met her burden of demonstrating a probable, irreparable
physical injury if the posts identifying her home addresses were not removed
through injunctive relief.
Trial courts have broad discretion to grant temporary injunctions to provide
for the safety of parties involved and to maintain the status quo until rights may be
14
judicially determined. See Rhodia, Inc., 470 S.W.2d at 419. The trial court did not
abuse its discretion in issuing a narrow mandatory injunction requiring the removal
of posts identifying Dangelas’s home address and that of her daughters in the
context of active statements of threats of violence against Dangelas in the
accompanying posts and surrounding online conversations.
Conclusion
Having concluded that the trial court did not abuse its discretion in granting
a temporary mandatory injunction that requires the deletion of already-published
Facebook posts if they meet either of two discrete criteria for the purpose of
addressing a concern of physical safety, we affirm.
This is an interlocutory appeal. The resolution of the underlying merits of
the defamation suit are not before this Court at this time.5 The suit is remanded to
the trial court for additional proceedings.
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Landau and Hightower.
5
The final issue raised in Bui and Nguyen’s interlocutory appeal is whether there
was evidence of their actual malice to meet the standard for a probable right to
relief in support of a temporary injunction. Because we have already determined
that Dangelas made a prima facie showing of actual malice in the related case, Bui,
2019 WL 5151410, at *10, we do not reach Bui and Nguyen’s final issue.
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