Earlier this year I blogged about a Vermont divorce court's recognition of the fact that the First Amendment places limits on a court's ability to enjoin divorcing couples' ability to write nasty things about each other on the Internet. The court recognized the issue, but did not decide it, given the court's limited subject-matter jurisdiction.
Yesterday a California appellate court weighed in with a fuller analysis in another case involving a trial court's decision to enjoin a spouse from posting on the Internet allegedly defamatory remarks about her husband.
A couple lessons can be drawn from the California court's opinion. The First Amendment does not allow for injunctions against future, unspecified defamatory statements. However, a narrowly tailored injunction to protect privacy interests -- such as a real threat of personal harm -- is possible if the interest is sufficiently compelling.
Alleged Defamatory Remarks: Injunction Was Prior Restraint
Following a hearing, the trial court issued an order enjoining the wife (and her mother) "from publishing false and defamatory statements and/or confidential personal information about [the husband] on the internet. ..."
Two distinct types of information are implicated here: allegedly defamatory statements about the husband, and statements that allegedly violated the husband's privacy rights. The court's analysis was different for each type.
The appellate court concluded that the decision to enjoin the wife's allegedly defamatory Internet speech was an unconstitutional prior restraint. California courts applying the First Amendment to defamation claims have concluded that an injunction is constitutional only to the extent it prohibits a person from repeating statements that have been determined during a trial to be defamatory. Here, whether or not the wife's prior online publications were defamatory had yet to be determined, and the injunction was broader than a mere ban on repeating what the husband alleged the wife to have previously posted online. This aspect of the trial court's order also suffered from constitutional vagueness and overbreadth flaws, the court said, because it "fails to adequately delineate which of [the wife's] future comments might violate the injunction and lead to contempt of court."
Alleged Invasion of Privacy: Balancing Test Required
Taking up the portion of the trial court's injunction forbidding the wife from posting online "confidential personal information," the court ruled that a balancing test was required, an inquiry that weighed the husband's privacy interests against the wife's free speech constitutional rights. Relevant factors here included whether the husband is a public figure, the nature of the information involved, whether the information is of legitimate public concern, the extent of harm caused by online publication of the information, and the strength of the private and governmental interest in preventing its publication.
The first problem with the trial court's order was that it failed to define "confidential personal information." Without a clear definition, it is impossible to assess the extent of the husband's privacy interests and difficult for the wife to determine what information she was prohibited from placing on the Internet, the court said.
The husband claimed that the wife would, if permitted, post his telephone number, address, and social security number on the Internet. The husband argued that, because he is a deputy sheriff, posting this information would jeopardize his safety. And the court agreed, ruling that a court would be "fully justified" in enjoining the publication of this kind of information on the Internet:
We agree that a court would be fully justified in issuing an order preventing a party from putting this type of identifying information about another person on the Internet, particularly where, as here, that person is a law enforcement officer. To the extent that [the husband] seeks such an order and supports this request for evidence, the court would be justified in immediately ordering that this type of information be kept private. 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.
However, the court noted, the trial court's injunction was not limited to this kind of information. Any injunction prohibiting the online publication of any "confidential personal information" is vague, overbroad, and not narrowly tailored, the court said. On remand, the trial court should determine exactly which information the husband wants to keep private, and then engage in a balancing test to determine whether there is a compelling reason that the information be kept private. Information contained in court files is not necessarily exempt from disclosure, the court cautioned; in fact, it said, there is a presumption that this information is a matter of public record. Personal safety could be a compelling reason, the court suggested, but any order protecting this interest must be narrowly tailored so it does not interfere with the wife's First Amendment rights.
Update: The Citizens Media Law Blog also has a comment and more background information about the case.
The case is Evans v. Evans, No. D051144 (Calif. Ct.App., May 12, 2008).
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