Summary
The Texas Supreme Court held that an injunction requiring removal of speech already adjudicated defamatory is not a prior restraint, but an injunction prohibiting future speech that is the same or substantially similar constitutes a prior restraint. The court concluded that such a restraint is unconstitutional under the Texas Constitution because it risks chilling protected speech and remanded the case for further proceedings.
Topics
Practice areas
Questions Presented
- Whether a permanent injunction requiring removal of speech adjudicated defamatory is a prior restraint.
- Whether a permanent injunction prohibiting future speech that is the same or similar to speech adjudicated defamatory is a prior restraint.
- Whether the Texas Constitution permits an injunction against future speech following an adjudication of defamation.
- Whether summary judgment was proper when the trial court treated all of Kinney's requested injunctive relief as constitutionally impermissible.
Holdings
- An injunction requiring removal or deletion of speech that has already been published and adjudicated defamatory does not prohibit future speech and therefore is not a prior restraint.
- An injunction prohibiting future speech based on an adjudication that the same or similar statements were defamatory is a prior restraint.
- The Texas Constitution does not permit injunctions against future speech following an adjudication of defamation because such injunctions impermissibly risk chilling constitutionally protected speech.
- Damages are generally the constitutionally permitted remedy and deterrent for defamation in Texas, rather than an injunction against future speech.
Key quotations
“Accordingly, we hold that an injunction against future speech based on an adjudication that the same or similar statements have been adjudicated defamatory is a prior restraint.” (at 94)
“The traditional rule of Anglo-American law is that equity has no jurisdiction to enjoin defamation.” (at 95)
“The latter impermissibly chills protected speech; the former does not.” (at 98)
“Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.” (at 100)
“We hold that, while a permanent injunction requiring the removal of posted speech that has been adjudicated defamatory is not a prior restraint, an injunction prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texans’ free-speech rights under Article I, Section 8 of the Texas Constitution.” (at 101)
Factual background
Robert Kinney worked as a legal recruiter for BCG Attorney Search and left in 2004 to start a competing firm. Andrew Barnes later posted statements on two websites alleging that Kinney had devised an unethical kickback scheme while employed by BCG. Kinney sued for defamation and requested a permanent injunction requiring removal of the statements and prohibiting Barnes from making the same or similar statements in the future.
Procedural history
Kinney sued Barnes and related entities after Barnes posted statements accusing Kinney of involvement in a kickback scheme. Kinney sought injunctive relief requiring removal of the statements and prohibiting future similar statements, but did not seek damages. The trial court granted summary judgment without deciding whether the statements were defamatory, and the court of appeals affirmed. The Supreme Court of Texas assumed for purposes of review that the statements were defamatory, reversed, and remanded because the requested removal remedy was not a prior restraint even though an injunction against future similar speech would be unconstitutional.
Remand instructions
The case was remanded to the trial court for further proceedings consistent with the opinion, including consideration of the portion of Kinney's requested injunction requiring removal of speech adjudicated defamatory. The court did not decide whether the statements were actually defamatory or whether an order directed at third-party websites was otherwise proper.