SUPREME COURT DECLARES PERMANENT INJUNCTION BARRING FUTURE DEFAMATORY SPEECH TO BE CONSTITUTIONALLY IMPERMISSIBLE PRIOR RESTRAINT

Kinney v. Barnes
Supreme Court of Texas, No. 13-0043 (August 29, 2014)
Justice Lehrmann (Opinion)

Burbage v. Burbage
Supreme Court of Texas, No. 12-0563 (August 29, 2014)
Justice Green (Opinion)
In its 1983 decision in Hajek v. Bill Mowbray Motors, the Supreme Court of Texas held that a temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint. In Kinney, the Court has now unanimously extended that rule to permanent injunctions barring future speech that is the same or similar to speech that has been adjudicated to be defamatory, and then promptly applied the extended rule in Burbage.

In Kinney, defendant Barnes had posted on a website comments that Kinney claimed were defamatory. Kinney sued, but sought no damages, asking only for a permanent injunction that the Court construed as requiring Barnes to remove the allegedly defamatory statements from the website and to ask third-party republishers to remove the statements as well, and also prohibiting Barnes from “making similar statements (in any form) in the future.” Barnes moved for summary judgment, contending the requested relief amounted to an impermissible prior restraint. The trial court agreed and granted summary judgment for the defendant without addressing whether the statements in question were defamatory, and the court of appeals affirmed on that same basis. Assuming the statements to be defamatory, the Supreme Court reversed in part and affirmed in part.

The Court began by emphasizing that “prior restraints are a heavily disfavored infringement” on the right of free speech, and are “presumptively unconstitutional.” “So great is our reticence to condone prior restraints,” the Court said, “that we refuse to allow even unprotected speech to be banned if restraining such speech would also chill a substantial amount of protected speech.” Against this backdrop, the Court turned first to the question whether the requested permanent injunction was a prior restraint at all. Contrary to the approach of the trial court and court of appeals, the Supreme Court determined the injunction should be broken into two parts that must be analyzed separately. The requirement that Barnes remove defamatory statements previously posted to a website constituted “the erasure of past speech that has already been found to be unprotected.” As such, the Court held, it is not a prior restraint at all. But it then went on to find “an injunction against future speech based on an adjudication that the same or similar statements have been adjudicated defamatory is a prior restraint.”

The Court next examined whether such an injunction, though a prior restraint, is nevertheless permissible under the Texas Constitution. After assessing a number of historical and policy considerations, the Court determined it is not. Even though past defamatory statements are not “protected speech,” the Court concluded that “even the most narrowly crafted of injunctions risks enjoining protected speech.” And so the Court held “the Texas Constitution does not permit injunctions against future speech following an adjudication of defamation.” In so doing, it expressly rejected the concern that damages may not prove an adequate remedy for future defamatory statements. The Court did note, in closing, that not all prior restraints are constitutionally impermissible and that some may survive, if they are “essential to the avoidance of an impending danger” and are “the least restrictive means of preventing that harm.”

In Burbage, issued the same day as Kinney, the Court applied the newly expanded rule to affirm an appeals court’s reversal of a permanent injunction entered after a jury had found defamation. The injunction tracked the language of ten statements found by the jury to have been defamatory and then forbade the defendant from future dissemination of such statements or any of several variations, spelled out in four pages of forbidden topics. The unanimous Supreme Court held that, notwithstanding the jury’s findings of defamation, under Kinney such an “extraordinarily broad prohibition on free speech …. cannot stand.”
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