Lemen

In this defamatory speech action, the Court of Appeal invalidated the trial court’s permanent injunction against defendant. The majority here affirms the Court of Appeal’s judgment. So would I.

Unlike the majority, however, I would not remand the matter for issuance of a narrower injunction. Rather, I agree with the Court of Appeal that an *1163 injunction permanently prohibiting defendant’s future speech is an unconstitutional prior restraint. And, unlike the majority, I would hold that the remedy for defamation is to award monetary damages. To forever gag the speaker— the remedy approved by the majority—goes beyond chilling speech; it freezes speech.

The majority acknowledges that the statements the trial court has prohibited defendant from uttering may in the future become true. In that event, the majority concludes, defendant has an adequate remedy because she may apply to the trial court for modification of the injunction. I disagree. To require a judge’s permission before defendant may speak truthfully is the essence of government censorship of speech and in my view is constitutionally impermissible.

I

Plaintiff Balboa Island Village Inn, Inc., owns the Balboa Island…

For reasons that will appear, I concur in the disposition. However, finding the majority’s analysis flawed, I otherwise dissent.

A little more than seven years ago, a bare majority of this court “sail[ed] into uncharted First Amendment waters” (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 148 [ 87 Cal.Rptr.2d 132 , 980 P.2d 846 ] (conc, opn. of Werdegar, J.) (Aguilar)) and held that despite the free speech guarantee in the First Amendment to the United States Constitution, an injunction prohibiting a person from uttering certain words or phrases in the future was permissible. In that case, the defendant had been found guilty of employment discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for directing racially derogatory comments at his Latino employees at their workplace. A plurality of three justices found the injunction in Aguilar permissible under the First Amendment because the jury, having found a FEHA violation, necessarily found the defendant’s racial comments were unprotected speech. The plurality reasoned: “[T]he injunction at issue is not an invalid prior restraint, because the order was issued only…

Following a court trial in which defendant Anne Lemen was found to have repeatedly defamed plaintiff Balboa Island Village Inn, Inc., the superior court issued a permanent injunction prohibiting defendant from, among other things, repeating certain defamatory statements about plaintiff. For the reasons that follow, we hold that the injunction is overly broad, but that defendant’s right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory.

Facts

Aric Toll owns and manages the Balboa Island Village Inn (hereafter Village Inn or Inn), a restaurant and bar located on Balboa Island in Newport Beach. He bought it on November 30, 2000, but the Village Inn has been operating at that location for more than half a century.

In 1989, defendant Anne Lemen purchased the “Island Cottage,” which lies across an alley from the Village Inn. She lives there part of the time and rents the cottage as a vacation home part of the time. Lemen is a vocal critic of the Village Inn and has contacted the authorities numerous times to complain of *1145 excessive noise and…

I join fully in the majority opinion. I write separately only to point out that if a defendant were to be enjoined from repeating statements already determined to be defamatory, such a defendant may not only move the court to modify or dissolve the injunction based on a change in circumstances or context, as the majority notes, but may also speak out, notwithstanding the injunction, and assert the present truth of those statements as a defense in any subsequent prosecution for violation of the injunction. (People v. Gonzalez (1996) 12 Cal.4th 804, 818 [ 50 Cal.Rptr.2d 74 , 910 P.2d 1366 ] [“this court has firmly established that a person subject to a court’s injunction may elect whether to challenge the constitutional validity of the injunction when it is issued, or to reserve that claim until a violation of the injunction is charged as a contempt of court”]; see In re Berry (1968) 68 Cal.2d 137, 149-150 [ 65 Cal.Rptr. 273 , 436 P.2d 273 ].)

Our decision thus does not require a citizen to obtain government permission before speaking truthfully. In this respect, California law “is ‘considerably more consistent with the exercise of First Amendment freedoms’ than that of other…

Following a court trial in which defendant Anne Lemen was found to have repeatedly defamed plaintiff Balboa Island Village Inn, Inc., the superior court issued a permanent injunction prohibiting defendant from, among other things, repeating certain defamatory statements about plaintiff. For the reasons that follow, we hold that the injunction is overly broad, but that defendant's right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined at trial to be defamatory.

Aric Toll owns and manages the Balboa Island Village Inn, a restaurant and bar located on Balboa Island in Newport Beach. He bought it on November 30, 2000, but the Village Inn has been operating at that location for more than half a century.

In 1989, defendant Anne Lemen purchased the "Island Cottage," which lies across an alley from the Village Inn. She lives there part of the time and rents the cottage as a vacation home part of the time. Lemen is a vocal critic of the Village Inn and has contacted the authorities numerous times to complain of excessive noise and the behavior of inebriated customers…