Defamation, Harassment and the First Amendment

I’ve written about criminal defamation and harassment before, but here I want to summarize the result in a civil defamation case out of California . . . because it’s a little depressing.

Here are the facts, as reported by the California Court of Appeals in Evans v. Evans, 162 Cal. App.4th 1157, 76 Cal. Rptr.3d 859 (2008):

Thomas [Evans] is a[n] officer with the San Diego County Sheriff's Department. He and Linda were married in 1985, and separated in 1998. In 2002, the court entered a judgment dissolving the marriage. During the next five years, the parties had substantial ongoing conflict over custody, child support and other issues. . . .

In March 2007, Thomas filed a complaint against Linda, alleging harassment, slander and defamation. . . [and] breach of privacy. . . . . The gist . . . was that Linda has engaged in a series of acts intended to harass Thomas and cause him severe emotional stress and injury to his reputation and career. . . .

Thomas moved for a . . . preliminary injunction . . . enjoining Linda `from engaging in the slanderous and harassing conduct against him. In support, Thomas relied primarily on his own declarations in which he asserted . . .[that] Linda and her mother (Preddy) had placed defamatory information about him on the Internet. . . .

Thomas stated that: `In December 2006, I was informed that there were websites posted by [Linda and Preddy] with numerous defaming comments and statements about me as a sworn law enforcement officer. . . .” Thomas also said he `discovered . . . [Preddy] inappropriately gained access to both my . . . medical . . . and financial records, and had published information from them on the internet.’ [He] attached . . . Web site pages showing statements that appeared to have been made by Preddy in a family court declaration, accusing [him] of physical abuse and harassment against Linda. [He] did not submit any evidence that any private medical or financial information or identifying . . . facts had been published on the Internet.

[He] also submitted . . . Web pages in which. . . Linda . . . accus[ed] him of physical abuse against her and her son. . . . Thomas stated `[a]s recently as February 19, 2007, a Google search of my name on thepetitionsite.com generated a blurb posted by [Linda] stating: ‘Our eldest son was returned to my `Primary Care' after his father, San Diego County Sheriff's Sergeant, Thomas C. Evans, struck him with a belt repeatedly. . . .’ This statement is entirely false and reflective of the defamatory and harassing comments published by the defendants.’

Thomas declared: “I strongly believe that the actions of [Linda and Preddy] have affected, and will continue to affect, my reputation, career, and general well-being. . . . The actions ... have caused me, and continue to cause me, substantial emotional distress as I fear for my reputation, my relationships with friends and family, and my career with the San Diego Sheriff's Department.’ Thomas argued a preliminary injunction was necessary to prevent further wrongful `conduct that would only serve to negatively impact my personal and professional life’. . . .

Linda . . . filed a . . . pleading, denying each of Thomas's allegations. . . . But she did not present any evidence to counter Thomas's evidence. One week later, on April 13, 2007, the court held a hearing on Thomas's preliminary injunction motion. . . .

At the hearing, the court [found that the] injunction was `more than warranted’, . . . ruling . . . . that `there is a reasonable probability [Thomas] will prevail on the merits of this action. [Thomas] has provided . . . sufficient evidence to establish the ongoing harassment activities by [Linda and Preddy]. Moreover, . . . [Thomas] may suffer irreparable harm if [they] are not: 1) enjoined from publishing false and defamatory statements and/or confidential personal information about him on the internet; and 2) enjoined from contacting [his] employer via email or otherwise regarding [him].’ . . .

Five days later, . . . the court issued the preliminary injunction challenged in this appeal. The injunction stated: “1. [Linda and Preddy] are enjoined from publishing false and defamatory statements and/or confidential personal information about [Thomas] on the internet; and 2. [Linda and Preddy] are enjoined from contacting [Thomas's] employer via e-mail or otherwise regarding [Thomas]. Since [Thomas] is employed by the San Diego Sheriff's Department, this injunction should not be construed to prohibit defendants from calling 911 to report criminal conduct.”

Evans v. Evans, supra. Linda appealed the order, and won. The California Court of Appeals held that the preliminary injunction violated the First Amendment.

With regard to Linda’s publishing “false and defamatory statements,” online, the court of appeals held that the injunction was fatally flawed for two reasons:

[T]he preliminary injunction prohibiting Linda from publishing any `false and defamatory’ statements on the Internet is constitutionally invalid. Because there has been no trial and no determination on the merits that any statement made by Linda was defamatory, the court cannot prohibit her from making statements characterized only as `false and defamatory.’ . . .

This portion of the order is also . . .unconstitutionally vague and overbroad. The injunction broadly prohibited Linda from publishing any defamatory comments about Thomas. This sweeping prohibition fails to adequately delineate which of Linda's future comments might violate the injunction and lead to contempt of court. . . .

[O]ur conclusion should not be interpreted as an opinion on the merits of Thomas's . . . claims. It is well settled that a plaintiff may recover damages for speech that is proved to be defamatory or libelous. Additionally, a court may enjoin a defendant after trial from repeating defamatory statements. The only issue resolved here is that a court may not constitutionally prevent a person from uttering a `defamatory’ statement before it has been determined at trial that the statement was defamatory.

Evans v. Evans, supra. I understand what the court is saying, and I think it’s probably correct, as a matter of constitutional law. But it means you can’t do anything to stop the publication of “false and defamatory” statements until you’ve filed a complaint, taken the case to trial and won . . . which could be a long, long time. . . . well after the statements have done their damage.

The court of appeals reached essentially the same conclusions with regard to the injunction’s prohibiting the publication of “confidential personal information” online:

A prohibition against disclosing confidential information constitutes a prior restraint. . . . However, because it . . . concerns the right of privacy under the California Constitution, a prohibition may be proper under certain compelling . . .circumstances.

In determining whether such circumstances exist, courts . . .apply a balancing test, weighing the competing privacy and free speech . . .l rights. . . . Relevant factors include whether the person is a public or private figure, the scope of the prior restraint, the nature of the private information, whether the information is of legitimate public concern, the extent of the potential harm if [it] is disclosed, and the strength of the private and governmental interest in preventing publication. . .

We cannot determine whether the court properly applied the balancing test in this case because the order. . . . does not contain a definition of `confidential personal information’. . . . Without a definition, the injunction is not sufficiently clear to determine whether Thomas's privacy rights outweigh Linda's free speech rights. . . .

Thomas [says] Linda will place (or has placed) his telephone number, address, and Social Security number on the Internet. He argues the disclosure of the information will put his safety and well-being in jeopardy, . . . because of his job as a deputy sheriff. We agree a court would be fully justified in . . . preventing a party from putting this type of identifying information about a person on the Internet, particularly where . . . that person is a law enforcement officer. . . . Such a restriction does not involve information that has any public value and would serve the significant public interest of protecting the safety of a law enforcement officer. . . .

Thomas did not specifically request an order preventing his identifying information from being placed on the Internet. Instead, [he] focused primarily on his concern that Linda and/or her mother had placed, or planned to place, information about the divorce . . . on the Internet. . . . [T]he mere fact information is contained in court files does not necessarily mean it . . . cannot be disclosed. . . .[C]ertain information . . . may be protected from disclosure, such as information . . . that would compromise a person's financial security or personal safety. . . . But an order enjoining the disclosure must be narrowly tailored to protect only these specific interests and should not unnecessarily interfere with a person's free speech rights. . . .

[[T]he order preventing Linda from placing any `confidential personal information’ about Thomas on the Internet is vague, overbroad, and not narrowly tailored. On remand, the court should . . . determine whether there is a compelling reason such information be kept private. A compelling reason includes . . . facts showing the disclosure of information would jeopardize the personal safety of Thomas or his family and/or would lead him to fear for his or his family's safety. If a compelling reason exists, the court should . . . enjoin Linda from publishing the information.

Evans v. Evans, supra. So Thomas may be able to get an injunction barring Linda from posting his phone number and address online, and maybe his Social Security number. Now he has to go back and try to get a court to do that.

It seems the lower court and Thomas’ lawyer (Linda didn’t have one) were at fault for not specifying in more detail what kind of information was not to be put online. I assume it won’t be difficult for Thomas and his lawyer to do that on their next try. Of course, I get the impression it may already have been out there for a while, but maybe he moved.

This case is an object lesson in what can happen if someone is really angry at you and knows how to use the web to take out their anger.