The California Supreme Court has recently ruled that certain prior restraints on free speech are permissible.
The case involves a woman who lives near a restaurant. She would publiclyrant against it,shouting falsehoods to potential customers, such as that the restaurant is involved with prostitution, drug dealing and the Mafia,and not only that, but it serves tainted food, too. She wasfound to have committedslander. However, there was an added injunction against her.
The majority opinion in the case captioned Balboa Island Village v. Lemenstated:
“Defendant [Lemen]…objects to …an injunction prohibiting her from repeating [in the future] statements the trial court determined were slanderous, asserting the injunction constitutes an impermissible prior restraint. We disagree.”
According to Howard Bashman in his blog “How Appealing”:
“Two justices dissented, and they reasoned that the injunction constituted an impermissible prior restraint on speech and that the plaintiff had failed to demonstrate that damages were insufficient to compensate the plaintiff for any harm that resulted from further repetition of the defamation.”
I am alarmed at this decision and precedent. Ms. Lemen, the defendant, argued that “a statement that was once false may become true later in time.” I agree, and I believe one cannot morally or constitutionally prohibit speech before the fact. The Court rejected that argument concluding that further legal motions could be made by either party if things change. I disagree, and believe if she is punished for slander, that is motivation enough for her to cease. If she slanders again, then anothersuit or motioncould be made for that new event, and eventually she will cease. But taking prohibition of speech as the status quo and then requiring motions to modify or dissolve the injunction if things change strikes me as backwards-thinking, a presumption of future guilt,and a violation of rights. I’m not an expert and I would welcome any informed opinions.
An easy-to-read and thoughtful commentary on this case by Vikram David Amar is at this site: http://writ.news.findlaw.com/amar/20070511.html