FILED
IN THE SUPREME COURT
OF TEXAS
13 October 11 P2:49
BLAKE. A. HAWTHORNE
CLERK
No. 13-0043
IN THE SUPREME COURT OF TEXAS
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.
On Petition for Review from the Third Court of Appeals
PETITIONER ROBERT KINNEY’S
REPLY BRIEF ON THE MERITS
Andrew J. Sarne
State Bar No. 00797380
KANE RUSSELL COLEMAN
& LOGAN, P.C.
919 Milam, Suite 2200
Houston, Texas 77002
Telephone: (713) 425-7400
[email protected]
Martin J. Siegel
State Bar No. 18342125
LAW OFFICES OF
MARTIN J. SIEGEL, P.C.
Bank of America Center
700 Louisiana, Suite 2300
Houston, Texas 77002
Telephone: (713) 226-8566
[email protected]
Attorneys for Petitioner
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................ i
INDEX OF AUTHORITIES ................................................................................... ii
INTRODUCTION ................................................................................................ 1
ARGUMENT...................................................................................................... 2
I.
Waiver Does Not Bar Kinney’s Arguments ................................ 2
II.
Barnes Has Not Shown That The Texas Constitution
Provides Greater Protection In This Case ................................... 7
III.
Kinney’s Federal Authority Is Applicable To This Case ............ 9
IV.
The Injunction Kinney Seeks Would Not Be An
Unconstitutional Prior Restraint ............................................... 11
V.
Kinney Has Offered Sound Reasons For Adopting
The “Modern Rule” Permitting Permanent Injunctions
Against Defamation In Appropriate Cases ................................ 18
CONCLUSION ................................................................................................. 23
CERTIFICATE OF SERVICE .............................................................................. 25
CERTIFICATE OF COMPLIANCE ....................................................................... 26
i
INDEX OF AUTHORITIES
page
Cases:
Advanced Training Sys., Inc. v. Caswell Equip. Co.,
352 N.W.2d 1 (Minn. 1984) ............................................................... 16, 22
Alexander v. United States,
509 U.S. 544 (1993) .......................................................................... passim
Am. Univ. of Antigua Coll. of Med. v. Woodward,
837 F. Supp. 2d 686 (E.D. Mich. 2011) ................................................... 22
Auburn Police Union v. Carpenter,
8 F.3d 886 (1st Cir. 1993), cert denied, 511 U.S. 1069 (1994)........... 11, 17
Balboa Island Village Inn, Inc. v. Lemen,
156 P. 3d 339 (Cal. 2007) ................................................................. passim
Bentley v. Bunton,
94 S.W.3d 561 (Tex. 2002) ........................................................................ 7
Brammer v. KB Home Lone Star, L.P.,
114 S.W.3d 101 (Tex. App. – Austin 2003)....................................... 11, 12
Chambers v. Scutieri,
2013 WL 1337935 (N.J. Super. Ct. App. Div. April 4, 2013) ................. 22
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ................................................................................. 10
City of Lakewood v. Plain Dealer Publishing Co.,
486 U.S. 750 (1988) ................................................................................. 17
Davenport v. Garcia,
834 S.W.2d 4 (Tex. 1992) ...................................................................... 7, 8
Ex Parte Tucker,
220 S.W. 75 (Tex. 1920) ................................................................ 9, 17, 19
ii
Freedman v. Maryland,
380 U.S. 51 (1965) ............................................................................. 17, 18
Hajek v. Bill Mowbray Motors, Inc.,
647 S.W.2d 253 (Tex. 1983) ............................................................. passim
Hill v. Petrotech Resources Corp.,
325 S.W.3d 302 (Ky. 2010) ............................................................... 11, 18
Kingsley Books, Inc. v. Brown,
354 U.S. 436 (1957) .......................................................................... passim
Kramer v. Thompson,
947 F.2d 666 (3d Cir. 1991) ..................................................................... 11
Lothschuetz v. Carpenter,
898 F.2d 1200 (6th Cir 1990) .............................................................. 11, 22
Memon v. Shaikh,
401 S.W.3d 407 (Tex. App. – Houston [14th Dist.] 2013) ................. 12, 22
Near v. Minnesota,
283 U.S. 697 (1931) ............................................................... 13, 14, 16, 17
Nebraska Press Assoc. v. Stuart,
427 U.S. 539 (1976) ................................................................................. 10
Neely v. Wilson,
__ S.W.3d __, 2013 WL 3240040 (Tex. June 28, 2013).......................... 21
Nolan v. Campbell,
690 N.W.2d 638 (Neb. App. 2004, rev. overruled) .................................. 22
Operation Rescue-National v. Planned Parenthood
of Houston and S.E. Tex., Inc.,
975 S.W.2d 546 (Tex. 1998) .................................................................. 7, 8
Org. for a Better Austin v. Keefe,
402 U.S. 415 (1971) ........................................................................... 14, 16
iii
Osterberg v. Peca,
12 S.W.3d 31 (Tex.), cert. denied, 530 U.S. 1244 (2000) ......................... 5
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations,
413 U.S. 376 (1973) ........................................................................... 10, 16
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) ................................................................................. 10
Saadi v. Maroun,
2009 WL 3617788 (M.D. Fl. Nov. 2, 2009) ............................................ 22
Schneider Nat. Carriers, Inc. v. Bates,
147 S.W.3d 264 (Tex. 2004) .................................................................... 20
Schussler v. Webster,
2009 WL 648925 (S.D. Cal. March 9, 2009) ........................................... 22
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) ..................................................................... 15, 17, 18
State v. Consaul,
982 S.W.2d 899 (Tex. Crim. App. 1998),
cert. denied, 526 U.S. 1160 (1999) ............................................................ 5
Times Film Corp. v. City of Chicago,
365 U.S. 43 (1961) ................................................................................... 15
United States v. Alvarez,
132 S. Ct. 2537 (2012) ............................................................................. 10
Vance v. Universal Amusement Co., Inc.,
445 U.S. 308 (1980) ................................................................................. 15
WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568 (Tex. 1998), cert. denied 526 U.S. 1051 (1999) ........... 21
iv
Constitutional Provisions:
U.S. CONST. amend. I............................................................................ passim
TEX. CONST. art. I, § 8 ........................................................................... passim
Other Authorities:
Roscoe Pound, Equitable Relief Against Defamation and
Injuries to Personalty, 29 HARV. L. REV. 640 (1916) ............................... 14
Stephen A. Siegel, Injunctions for Defamation, Juries and the
Clarifying Lens of 1868, 56 BUFF. L. REV. 655 (July 2008) .................... 11
Rodney A. Smolla, LAW OF DEFAMATION § 9.95 (2d ed. 2013) .................. 19
v
INTRODUCTION
This petition asks whether speech found to be defamatory after a full
trial on the merits must nevertheless remain online forever on the theory that
ordering its removal would violate freedom of speech. In his opening brief,
Kinney explains why the federal and Texas Constitutions permit courts to
permanently enjoin the republication of defamation, and why this Court
should join those that have recently discarded the outdated rule that “equity
will not enjoin a libel” in any circumstances.
In response, Barnes argues first that Kinney has waived his point that
defamation is constitutionally unprotected and therefore can be enjoined. In
fact, the court of appeals expressly reached this issue, so waiver is
inapplicable. Kinney’s arguments in this Court are not new.
Barnes also argues that the Texas Constitution extends broader
protection from the injunction Kinney seeks than does the First Amendment.
But Barnes must explain why the text, history, and purpose of Article I,
Section 8 confer greater rights in these circumstances. Because he has not
done so, First Amendment standards should govern this case.
Next, Barnes claims Kinney’s requested injunction would act as an
unconstitutional prior restraint. U.S. Supreme Court decisions make clear
that the constitutional evil addressed by the rule against prior restraints is the
1
suppression of speech without procedural safeguards before there has been a
final adjudication of its unprotected status. A permanent injunction ordering
the removal of defamation after trial on the merits does not fit the Supreme
Court’s definition of prior restraints – which is why state and lower federal
courts have increasingly imposed and upheld such orders.
Finally, Barnes contests Kinney’s arguments in support of changing
Texas law to adopt the “modern rule” allowing permanent injunctions in
appropriate defamation cases.
Barnes minimizes factors like the low
deterrent effect of damages in some instances, the inefficiency of requiring
serial lawsuits, the internet’s role in facilitating defamation today, and the
increase in cyber-bullying and online hate speech. As Kinney shows in his
opening brief, however, these are powerful reasons to update Texas law.
This Court should therefore reverse the decision below and permit
Kinney to seek a permanent injunction removing the malicious falsehood
about him that Barnes has maintained on the internet since 2009.
ARGUMENT
I.
Waiver Does Not Bar Kinney’s Arguments
Barnes argues first that this Court cannot consider the fact that
defamation lacks constitutional protection because Kinney did not raise the
point in the trial court. See Barnes Brf., Point I. He claims “[t]he only issue
2
properly before this Court is whether the injunction Kinney sought was an
impermissible prior restraint on speech or merely a subsequent punishment.”
Id. at 11. This is incorrect for two reasons.
First, because the court of appeals considered whether defamation is
unprotected and analyzed how its constitutional status affects the validity of
Kinney’s proposed injunction, this Court can do likewise. In the court of
appeals, Kinney urged reversal by citing lower court decisions upholding
injunctions against speech.
See App. 008 n. 4.
The court of appeals
distinguished his authority on the ground that it involved constitutionally
unprotected speech: “In all those cases, the courts determined the language
to be enjoined was not constitutionally protected and therefore not subject to
the prohibition against prior restraints either because it was false or
misleading commercial speech, private communication, or dealt with
instances of stalking, theft, threats, assaults, abuse of process, and
interference with contractual relations.” Id. (citations omitted). The court
then contrasted these forms of unprotected expression with defamation,
which it held to be protected: “Here, none of the exceptions to the general
protection of speech are applicable, so the statement, even if determined to
be defamatory, is still constitutionally protected.” Id. It cited Hajek v. Bill
Mowbray Motors, Inc. for this proposition and quoted dicta from that
3
decision: “Defamation alone is not sufficient justification for restraining an
individual’s right to speak freely.” Id. (quoting 647 S.W.2d 253, 254 (Tex.
1983)).
The court of appeals therefore directly considered the point Barnes
claims is now off limits to Kinney: whether defamation enjoys constitutional
protection and how its status as protected or unprotected bears on the
constitutionality of Kinney’s requested injunction. Based on its reading of
Hajek, the court held that defamatory speech is safeguarded by Article I,
Section 8 and so cannot be enjoined either preliminarily or permanently. See
id.
To the court of appeals, this set defamation apart from forms of
expression, like threats and false advertising, that have traditionally been
unprotected and therefore “not subject to the prohibition against prior
restraints.” Id.
Presumably, if the court of appeals had decided this issue
differently and viewed defamation as analogous to other forms of
unprotected speech, the outcome of Kinney’s appeal might have been
different. In this Court, Kinney contests the court of appeals’ expressed
view of defamation and notes that the U.S. Supreme Court has consistently
grouped it with other kinds of unprotected and sanctionable expression. See
Kinney Brf. at 19-20. Thus, because the court of appeals had sufficient
opportunity to consider this issue, did so, and ruled on the point, this Court
4
may do the same. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 40 (Tex.),
cert. denied, 530 U.S. 1244 (2000); State v. Consaul, 982 S.W.2d 899, 902
(Tex. Crim. App. 1998) (applying waiver because issue “ha[d] not been
addressed by the lower appellate court”), cert. denied, 526 U.S. 1160 (1999).
Second, Barnes’s waiver argument rests on an overly narrow
description of what Kinney argued to the trial court. In his response to
Barnes’s motion for summary judgment, Kinney stated: “Although Texas
case law is largely silent on this point, multiple courts, including the
California Supreme Court and the United States Supreme Court, have
specifically found that an injunction based on statements already found to be
defamatory does not offend a defendant’s constitutional right against a prior
restraint on speech.” CR 44. He discussed and quoted Alexander v. United
States, 509 U.S. 544 (1993), Kingsley Books, Inc. v. Brown, 354 U.S. 436
(1957), and Balboa Island Village Inn, Inc. v. Lemen, 156 P. 3d 339 (Cal.
2007), and explained how this case is on all fours with those. CR 44-48.
This argument – that post-trial, remedial injunctions are constitutional
and distinct from invalid prior restraints – is the same as Kinney’s main
point here. See Kinney Brf., Point I(B). Then and now, Kinney’s primary
contention is that an injunction after trial on the merits is not treated as a
forbidden prior restraint under the U.S. Supreme Court’s precedents and the
5
most recent case law of other states and lower federal courts. And Kinney
relies on the same key authority in this Court as in the trial court: Alexander,
Kingsley Books, Balboa, and other decisions that reached the same
conclusion. See id. at 11-15, 18, 21, 26-30. At most, Kinney has amplified
and expanded on this point here, as is typical when a case reaches this Court.
Moreover, Barnes acknowledges that Kinney opposed the motion for
summary judgment by arguing that enjoining Barnes’s defamation would be
a permissible “subsequent punishment” rather than a forbidden “prior
restraint.” Barnes Brf. at 11. The court of appeals also described Kinney’s
argument this way. See App. 006-7. The phrase “subsequent punishment”
necessarily presupposes that there is something properly punishable about
the speech at issue. See, e.g., Kingsley Books, 354 U.S. at 443 (discussing
“subsequent penalization” of obscenity). But if defamation enjoys
constitutional cover, as the court of appeals held, it cannot be punished in the
same manner (if at all), before or after adjudication.
Implicit, then, in
Kinney’s argument in the trial court that defamation can be enjoined as a
subsequent punishment is his position that it can be punished in the first
place, that is, that it lacks the constitutional immunity of protected speech.
In finding waiver, the court of appeals overlooked this point and failed to
analyze fully what Kinney argued to the trial court.
6
In short, Kinney’s arguments in this Court are nothing new and were
expressly ruled on by the court of appeals. As a result, there is no waiver.
II.
Barnes Has Not Shown That The Texas Constitution
Provides Greater Protection In This Case
Barnes maintains that the Texas Constitution offers more protection
from Kinney’s requested injunction than is found in the First Amendment,
but the argument is misplaced. See Barnes Brf. at 12-15.
Barnes cites Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) for the
claim that “[t]his Court has consistently interpreted Texas’s constitutional
recognition of free speech rights more broadly than its federal counterpart.”
Id. at 12. But he simply ignores the wealth of case law on this subject since
Davenport.
More recently, the Court has cautioned that “[t]he mere
assertion that the state provision is broader than the federal means nothing.”
Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002). If Article I, Section 8
confers greater rights, it “must be because of the text, history, and purpose of
the provision, not just simply because.”
Operation Rescue-National v.
Planned Parenthood of Houston and S.E. Tex., Inc. 975 S.W.2d 546, 559
(Tex. 1998) (emphasis in original).
“If anything, in the context of
defamation, the First Amendment affords more protection.” Bentley, 94
S.W.3d at 578. And there is “nothing to suggest that injunctions restricting
speech should be judged by a different standard under the state constitution
7
than the First Amendment.” Operation Rescue-National, 975 S.W.2d at
559.
Barnes’s sole effort to distinguish the authority that followed
Davenport is his assertion that Operation Rescue-National involved a
content-neutral injunction while Davenport did not. See Barnes Brf. at 1213 n. 7. But the rules enunciated in the post-Davenport cases governing
when courts should look to the Texas Constitution rather than the First
Amendment do not turn on content-neutrality. See Kinney Brf. at 7-10 (and
authority cited therein). They more generally require Barnes to show how
the text, history, and purpose of Article I, Section 8 extend greater protection
in this case. Far from offering such an explanation, Barnes simply presents
his own ipse dixit and waves off the entirety of First Amendment law as “not
relevant.” Barnes Brf. at 12-13 n. 7.
In addition, Operation Rescue-National noted that Davenport looked
to state law in part because “the First Amendment standard for reviewing
such an order had not been clearly defined in federal case law.” 975 S.W.2d
at 558. In this case, however, authority from the Supreme Court and lower
federal courts makes clear that a post-trial injunction restricting the
republication of defamation is constitutional. See Kinney Brf. at 11-18, 2930 (and authority cited therein). This Court has also consistently applied
8
First Amendment law in defamation cases, and this case should be no
exception. See id. at 9-10 and n. 5 (collecting authority).
Barnes also cites Hajek and decisions from lower courts to support his
contention that the Texas Constitution precludes injunctions against
defamation. See Barnes Brf. at 13-14. Hajek did not consider whether First
Amendment law or state law provides the better guideposts, though. See
647 S.W.2d at 255. It is also distinguishable because it did not involve
permanent injunctions; its statement that “[d]efamation alone is not a
sufficient justification for restraining an individual's right to speak freely” is
dicta when applied to such orders. Id. Moreover, by relying exclusively on
Ex Parte Tucker, 220 S.W. 75 (Tex. 1920), Hajek ignored decades of
intervening precedent from the U.S. Supreme Court. See 647 S.W.2d at 255.
Finally, to the degree Hajek stands as a barrier to bringing Texas law in line
with First Amendment principles and the trend in other states permitting
permanent injunctions in appropriate defamation cases, the Court should
overrule it.
III.
Kinney’s Federal Authority Is Applicable To This Case
Next, Barnes takes issue with the federal cases Kinney cites because
they do not involve defamation. See Barnes Brf. at 15-16. But Barnes does
not grapple with the long line of U.S. Supreme Court decisions placing
9
defamation in the same class as other forms of unprotected expression, such
as obscenity, fighting words, incitement, and speech integral to crime. See,
e.g., United States v. Alvarez, 132 S. Ct. 2537, 2544-45 (2012); R.A.V. v.
City of St. Paul, 505 U.S. 377, 382-83 (1992); Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942); see generally Kinney Brf. at 1920 (and authority cited therein). Moreover, in Nebraska Press Assoc. v.
Stuart, the Supreme Court specifically contrasted prior restraints with
remedial steps following trial in defamation cases:
A criminal penalty or a judgment in a defamation case is
subject to the whole panoply of protections afforded by
deferring the impact of the judgment until all avenues of
appellate review have been exhausted. Only after judgment has
become final, correct or otherwise, does the law's sanction
become fully operative.
A prior restraint, by contrast and by definition, has an
immediate and irreversible sanction.
427 U.S, 539, 559 (1976).
Given defamation’s categorical identity with other forms of
unprotected expression, it is no surprise that lower federal and state courts
have interpreted decisions like Pittsburgh Press Co. v. Pittsburgh Comm’n
on Human Relations, 413 U.S. 376 (1973) and Kingsley Books to permit
permanent injunctions in defamation cases. The Supreme Court’s decisions
“all appear to agree that a full jury determination as to the protected status of
10
speech is adequate to support the issuance of an injunction.” Kramer v.
Thompson, 947 F.2d 666, 676 n. 25 (3d Cir. 1991); accord, e.g., Auburn
Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993); Lothschuetz v.
Carpenter, 898 F.2d 1200, 1209 (6th Cir 1990); Hill v. Petrotech Resources
Corp., 325 S.W.3d 302, 309 (Ky. 2010); Balboa Island Village Inn, 156 P.
3d at 346-49; see generally Kinney Brf. at 26-30 (and authority cited
therein). “Over the past thirty years, several state courts of last resort have
upheld injunctions restraining defamatory speech. So have federal appellate
courts.”
Stephen A. Siegel, Injunctions for Defamation, Juries and the
Clarifying Lens of 1868, 56 BUFF. L. REV. 655, 657 (July 2008). Barnes
fails in his attempt to distinguish relevant U.S. Supreme Court authority
because it does not involve defamation.
IV.
The Injunction Kinney Seeks
Unconstitutional Prior Restraint
Would
Not
Be
An
Barnes urges that “[a]ny injunction on defamation, whether temporary
or permanent, constitutes a prior restraint on speech because it dictates the
content of speech prior to its publication.” Barnes Brf. at 17. He relies on
Hajek, Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex. App. –
Austin 2003), and four U.S. Supreme Court cases to make his point. See id.
at 17-22. But Kinney’s requested injunction is not properly viewed as an
unconstitutional prior restraint.
11
Initially, Barnes likens this case to Hajek because “requiring
Respondents to remove speech from websites is the functional equivalent of
requiring Mr. Hajek to remove his speech from his car.” Barnes Brf. at 18.
This overlooks that what this Court reversed in Hajek was a temporary
injunction only – an order preventing Hajek from driving around with the
message “Mowbray Motors sold him a ‘lemon’” pending trial on the merits.
647 S.W.3d at 254. Hajek did not determine whether such an order might be
appropriate after trial or whether such an injunction would represent a prior
restraint. See id. at 254-55. As for Brammer, that decision rests almost
entirely on Hajek and also adjudicated a temporary rather than a permanent
injunction. See Barnes Brf. at 18-19; Brammer, 114 S.W.3d at 106-08. Like
Hajek, Brammer should be overruled if it is construed to preclude injunctive
relief in all defamation cases.1
Barnes also invokes four Supreme Court decisions in support of his
argument about prior restraint. First, he quotes the statement in Alexander
that “temporary restraining orders and permanent injunctions – i.e., court
orders that actually forbid speech activities – are classic examples of prior
1
As noted in Kinney’s opening brief, other lower courts in Texas have granted
speech-restricting injunctions. See Kinney Brf. at 25-26 n. 9. Earlier this year, the
Fourteenth Court of Appeals also upheld an injunction ordering the defendant not to
republish statements a jury found to be defamatory following trial on the merits, though
the defendant did not argue that the injunction was unconstitutional. See Memon v.
Shaikh, 401 S.W.3d 407, 423 and n. 11 (Tex. App. – Houston [14th Dist.] 2013). This
decision was not cited in Kinney’s opening brief.
12
restraints.” Barnes Brf. at 20 (quoting 509 U.S. at 550).
That sentence
might bolster Barnes’s position except that the Court went on to distinguish
between prior restraints and restrictions imposed after a final judicial
determination that the speech is unprotected:
The constitutional infirmity in nearly all of our prior restraint
cases involving obscene material… was that the Government
had seized or otherwise restrained materials suspected of being
obscene without a prior judicial determination that they were in
fact so. In this case, however, the assets in question were
ordered forfeited not because they were believed to be obscene,
but because they were directly related to petitioner's past
racketeering violations.
509 U.S. at 551.
The Court also differentiated the seizure of obscene
material in Alexander from pretrial seizure based only on probable cause
because the defendant in Alexander received “a full criminal trial on the
merits.” Id. at 552. Here too, any restriction would follow trial on the
merits.
Barnes also cites Near v. Minnesota, 283 U.S. 697 (1931). See Barnes
Brf. at 21.
But the statute in Near was “not aimed at the redress of
individual or private wrongs,” and the case did not involve “questions as to
the extent of authority to prevent publications in order to protect private
rights according to the principles governing the exercise of the jurisdiction
of courts of equity.” 283 U.S. at 628, 631. The Court also cited Pound’s
famous article supporting equitable relief against libel. See id. at 631 n. 7.
13
(citing Roscoe Pound, Equitable Relief Against Defamation and Injuries to
Personalty, 29 HARV. L. REV. 640 (1916)). Moreover, the law in Near
proscribed all “malicious, scandalous or defamatory” speech in advance,
before speakers could tell if their statements might qualify. 283 U.S. at 706,
712-13. For that reason, the Supreme Court distinguished Near in Kingsley
Books by observing: “Unlike Near, [the statute at issue in Kingsley Books] is
concerned solely with obscenity and, as authoritatively construed, it
studiously withholds restraint upon matters not already published and not yet
found to be offensive.” 354 U.S. at 445. This case is like Kingsley Books,
not Near, because no injunction would issue here until Barnes’s statements
were “found to be offensive,” that is, defamatory, after trial.
Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971), which Barnes
also cites, is equally inapposite. See Barnes Brf. at 21-22. The injunction in
that case “suppress[ed], on the basis of previous publications, distribution of
literature ‘of any kind’ in a city of 18,000.” 402 U.S. at 418-19. As in Near,
the order did not merely proscribe republication of specific content already
found to be unprotected, but banned handing out material of all kinds. See
id. Nor did it aim to “redress alleged private wrongs.” Id. In contrast, the
injunction Kinney seeks would only redress the private wrong of specific
14
defamatory statements Barnes has maintained online for four years, not stifle
previously unadjudicated speech of all kinds.
Finally, Barnes cites Vance v. Universal Amusement Co., Inc., 445
U.S. 308 (1980). See Barnes Brf. at 22. But as Barnes himself observes, the
Texas nuisance laws struck down in Vance authorized temporary orders
barring the “showing of any films in the future even if those films had not
yet been found to be obscene.” Id.; see also Vance, 445 U.S. at 316. As
with Near and Keefe, the constitutional objection in Vance stemmed from
the advance prohibition of potentially lawful speech, not the after-the-fact
removal of speech found at trial to be unlawful, as in this case. The Vance
Court further disclaimed the notion that “there can never be a valid prior
restraint on communicative activity,” and noted that the lower court properly
invalidated the Texas laws because they were “procedurally deficient” and
“more onerous than permissible.” Id. at 317.
In the end, tarring an order with the label “prior restraint” cannot
replace careful constitutional deliberation.
The phrase “is not a self-
wielding sword. Nor can it serve as a talismanic test.” Times Film Corp. v.
City of Chicago, 365 U.S. 43, 49 (1961) (quotation omitted); Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (“Labeling
respondents’ action a prior restraint does not end the inquiry”). Courts
15
should employ “closer analysis and critical judgment” to make “a pragmatic
assessment of [a restriction’s] operation in the particular circumstances.”
Kingsley Books, 354 U.S. at 442 (quotation omitted).
Several U.S. Supreme Court decisions have held that the kind of order
Kinney seeks is not invalid as a prior restraint, though its effect after trial
would be to prevent people from seeing the defamation Barnes first posted
on his website in 2009. See Kinney Brf. at 12-16 (collecting cases). As one
of these decisions put it: “The special vice of a prior restraint is that
communication will be suppressed, either directly or by inducing excessive
caution in the speaker, before an adequate determination that it is
unprotected by the First Amendment.” Pittsburgh Press, 413 U.S. at 390.
Because it avoids this “special vice,” Kinney’s injunction is not an
unconstitutional prior restraint. See Advanced Training Sys., Inc. v. Caswell
Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984) (Near and Keefe “may once
have stood for the proposition that any injunction against speech activity was
a ‘prior restraint’ on speech,” but more recent authority indicates otherwise).
Moreover, in arguing that the injunction Kinney requests would serve
as an unconstitutional prior restraint, Barnes ignores the other hallmark of
such measures: the unconstrained discretion vested in a government censor.
See Kinney Brf. at 16-18 (and authority cited therein). “In such cases, it is
16
the very existence of unbridled discretion that is constitutionally
unacceptable because it ‘intimidates parties into censoring their own speech,
even if the discretion and power are never actually abused.’” Auburn Police
Union v. Carpenter, 8 F.3d 886 (1st Cir. 1993) (quoting City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750, 756 (1988)), cert. denied, 511
U.S. 1069 (1994). Kinney’s requested injunction would not outlaw or chill
new speech before it happens based on nebulous, catchall criteria like
whether it is “malicious, scandalous or defamatory.” Near, 283 U.S. at 706.
It does not confer discretion on a judge to determine that speech constitutes
an “opprobrious epithet,” and allow her to impose contempt sanctions when
the speaker could not have known in advance that he would run afoul of the
vague dictate. Tucker, 220 S.W. at 75. This is an additional reason why
Kinney’s requested injunction would not be an invalid prior restraint.
Finally, it bears recalling that even prior restraints are constitutional if
accompanied by sufficient procedural safeguards. See Southeastern
Promotions, 420 U.S. at 559; Freedman v. Maryland, 380 U.S. 51, 58
(1965); accord Alexander, 509 U.S. at 552 (“Nor were the assets in question
ordered forfeited without according petitioner the requisite procedural
safeguards, another recurring theme in our prior restraint cases”); Kinney
Brf. at 18. These include requiring the plaintiff to show the speech is
17
unprotected, keeping preliminary restrictions brief and limited to
maintaining the status quo, and guaranteeing prompt judicial determination
on the merits. See id. As Kinney noted in his opening brief, the order he
seeks clearly meets these tests.
See Kinney Brf. at 22-23.
Barnes
completely fails to address this aspect of prior restraint case law and its role
in this case.
V.
Kinney Has Offered Sound Reasons For Adopting The
“Modern Rule” Permitting Permanent Injunctions Against
Defamation In Appropriate Cases
Barnes lastly contests the reasons Kinney advances in his opening
brief for adopting what the Kentucky Supreme Court recently called “the
modern rule” allowing remedial injunctions against defamation after a trial
on the merits. Hill, 325 S.W.3d at 309; see Barnes Brf. at 23-29. First,
Barnes reprises his contention that such an injunction would constitute a
prior restraint and therefore be “disfavored” and “presumptively
unconstitutional.”
Id. at 23.
As discussed above, Kinney’s requested
injunction would not act as an invalid prior restraint. See supra, Point IV.
The “distaste” Barnes claims Texas and federal courts exhibit for such
orders is irrelevant here. Barnes Brf. at 24.
Barnes next maintains that most states have not yet reconsidered the
traditional rule against enjoining libel. See Barnes Brf. at 25-26. Since U.S.
18
Supreme Court decisions beginning in the 1950s and continuing into the
1990s, however, the trend has strongly favored permitting post-adjudication
orders enjoining the republication of defamation. See Kinney Brf. at 26-30.
Thus, the “traditional maxim that ‘equity will not enjoin a libel’… is giving
way to more nuanced analysis suggesting that, in appropriate circumstances,
equitable relief may be appropriate.”
Rodney A. Smolla, LAW
OF
DEFAMATION § 9.95 (2d ed. 2013). State courts and lower federal courts
alike have increasingly embraced the kind of injunction Kinney seeks. See
Kinney Brf. at 26-30. If the old rule still governs in some jurisdictions, it
may be simply because they have not yet had occasion to reevaluate in light
of the most recent authority.
Further, Barnes argues that concern about relegating plaintiffs to “a
series of lawsuits resulting from continued defamation” is unimportant in
light of “black-letter Texas law, which limits sanctions for defamation to
monetary damages only.” Barnes Brf. at 26 (citing Tucker, 220 S.W. at 76).
But the question is whether broadly construing decisions like Hajek and
Tucker to preclude all injunctions in all defamation cases remains viable in
light of more recent precedent. Other than citing the authority that is itself
being scrutinized in this case, Barnes has no answer for Kinney’s point that
it is inefficient and often insufficiently remedial to force people victimized
19
by malicious falsehoods to bring serial lawsuits whenever additional damage
occurs. Juries may award future damages, as Barnes asserts, see Barnes Brf.
at 26-27, but gauging them is notoriously difficult and they may not compare
in remedial efficacy to simply halting the character assassination. See, e.g.,
Balboa Island Village Inn, 156 P.2d at 351.
Barnes also downplays concerns about judgment-proof defendants as
ordinary “collection difficulties,” and claims Kinney wants less wealthy
defendants to accept “diminished constitutional rights.” Barnes Brf. at 2728. Kinney has shown that a permanent injunction against republishing
specific defamatory communication would not infringe on constitutional
rights, however. With that objection out of the way, the issue is whether
there are advantages to permitting injunctive relief for defamation in
appropriate cases. An injunction’s ability to ameliorate the harm in cases
where an award of damages is ineffective is obviously a point in its favor,
and courts have taken this consideration into account in particular cases. See
Note 2, infra. (and authority cited therein). As Kinney noted in his opening
brief, where damages are sufficient, long-established Texas law precludes
the entry of injunctive relief. See Kinney Brf. at 31 (citing Schneider Nat.
Carriers, Inc. v. Bates, 147 S.W.3d 264, 284 (Tex. 2004)).
20
In addition, Barnes contends that injunctions can never be ordered in a
defamation case because plaintiffs must show “pecuniary harm” to recover,
in which case “an economic remedy is available” that supposedly disentitles
the plaintiff to injunctive relief. Barnes Brf. at 29. This proves too much,
however, since it would apply just as well to all causes of action where a
plaintiff must show harm to prevail and would therefore seem to preclude all
injunctive relief in virtually every kind of case across the board. Regardless,
it is not necessary to show “pecuniary harm” in order to prove defamation.
A private-figure plaintiff like Kinney need only show that Barnes published
a statement that defamed him while acting negligently as to the statement’s
truth. See Neely v. Wilson, __ S.W.3d __, 2013 WL 3420040 at * 5 (Tex.
June 28, 2013) (listing elements of defamation); WFAA-TV, Inc. v.
McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (same).
More importantly, damages may be “available,” as Barnes puts it, but
ultimately inadequate to redress the harm caused by defamation. In practice,
state and federal courts in Texas and elsewhere have found that injunctions
against republishing defamation are sometimes necessary to effectively
protect the plaintiff from future violations of his right to a good name,
21
despite the existence of a remedy in damages.2
They have taken into
account factors such as the solvency of the defendant, the difficulty in
assigning a monetary value to reputational harm, and other concerns. See
supra at n. 2 (collecting cases). Here, the trial court will make the casespecific and fact-dependent decision about whether Kinney qualifies for
injunctive relief if this action is remanded for trial. See, e.g., Balboa Island
Village Inn, 156 P.2d at 351 n. 10 (“We… hold that an award of damages is
not the sole remedy available for defamation. We express no view on
whether, in an individual case, an injunction prohibiting the defendant from
repeating defamatory statements could, or should, be denied because an
award of damages would be an adequate remedy”).
Finally, in his opening brief, Kinney explained why permitting
permanent injunctions is all the more important in light of technological and
social developments that postdate this Court’s last consideration of the
subject. See Kinney Brf. at 35-38. These include the astonishing ease with
which one can defame a target online and the rise of cyber-bullying and hate
2
State and federal decisions granting or affirming permanent injunctions against
the republication of defamation include Memon v. Shaikh, 401 S.W.3d 407, 423 (Tex.
App. – Houston [14th Dist.] 2013); Chambers v. Scutieri, 2013 WL 1337935 (N.J. Super.
Ct. App. Div. April 4, 2013); Am. Univ. of Antigua Coll. of Med. v. Woodward, 837 F.
Supp. 2d 686, 701-02 (E.D. Mich. 2011); Saadi v. Maroun, 2009 WL 3617788 at ** 2-3
(M.D. Fl. Nov. 2, 2009); Schussler v. Webster, 2009 WL 648925 at ** 7-9 (S.D. Cal.
March 9, 2009); Balboa Island Village Inn, 156 P.2d at 351-53; Nolan v. Campbell, 690
N.W.2d 638, 652-53 (Neb. App. 2004, rev. overruled); Lothschuetz, 898 F.2d at 1206,
1208-09; Advanced Training Sys., 352 N.W.2d at 11.
22
speech. See id. In response, Barnes says that this case does not involve
cyber-bullying or online hate speech, and he is correct. See Barnes Brf. at
27. But if the Court grants the petition, it will consider whether a new rule is
appropriate for all defamation cases. The need for the remedy Kinney seeks
is perhaps even more acute in these other kinds of actions, and the Court
should and undoubtedly will consider the effect of its decision here on future
cases that may present different facts but turn on the same important legal
question.
CONCLUSION
For the foregoing reasons, the Court should grant the petition, reverse
the decision below, and permit Kinney’s case to proceed.
October 11, 2013
Respectfully Submitted,
/s/
Martin J. Siegel
Martin J. Siegel
Texas State Bar No. 18342125
LAW OFFICES OF MARTIN J. SIEGEL, P.C.
Bank of America Center
700 Louisiana St., Suite 2300
Houston, Texas 77002
Telephone: (713) 226-8566
[email protected]
23
Andrew J. Sarne
State Bar No. 00797380
KANE RUSSELL COLEMAN & LOGAN, P.C.
919 Milam, Suite 2200
Houston, Texas 77002
Telephone: (713) 425-7400
[email protected]
Attorneys for Petitioner
24
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply was served on
counsel of record for Respondents on October 11, 2013 by electronic means
and first class mail:
Dale L. Roberts
Daniel H. Byrne
Eleanor Ruffner
Fritz, Byrne, Head & Harrison, PLLC
98 San Jacinto Blvd., Suite 2000
Austin, TX 78701
/s/
Martin J. Siegel
Martin J. Siegel
25
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the word limit of TEX. R. APP. P.
9.4(i)(2) because this brief contains 5,117 words, excluding the parts of the
brief exempted by TEX. R. APP. P. 9.4(i)(1).
/s/
Martin J. Siegel
Martin J. Siegel
Dated: October 11, 2013
26