H.C. "BLUE" HILL V. PETROTECH RESOURCES CORPORATION
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2010-SC-000182-1
MOVANT
H.C. "BLUE" HILL
V.
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2009-CA-002244-I
BARREN CIRCUIT COURT NO . 09-CI-00623
PETROTECH RESOURCES CORPORATION
AND JOHN BURNESS
RESPONDENTS
OPINION OF THE COURT BY JUSTICE VENTERS
DISSOLVING TEMPORARY INJUNCTION
The question presented in this case is one of first impression in
Kentucky : whether a court may enjoin the expression of certain thoughts and
opinions before a final adjudication determining that the expression is
unprotected by the federal or Kentucky Constitution . We conclude that the
circuit court's broad-sweeping and vaguely worded injunction against future
expression, before final adjudication of its defamatory character, constitutes an
improper prior restraint on speech in violation of the First Amendment of the
United States Constitution and Section Eight of the Kentucky Constitution .
Given the heavy presumption against the . constitutionality of any prior restraint
of expression, the issuance of the temporary injunction was an abuse of the
circuit court's discretion that presents this Court with extraordinary cause to
grant the relief sought by the Movant under CR 65 .09 . Price v. Paintsville
Tourism Com'n, 261 S.W.3d 482, 483 (Ky. 2008) ; National Collegiate Athletic
Association v. Lasege, 53 S .W.3d 77, 84 (Ky. 2001) .
For the reasons set forth below, we grant Hi11's motion for relief, and
vacate the circuit court's temporary injunction as an impermissible prior
restraint on speech.
I . FACTUAL AND PROCEDURAL BACKGROUND
From the limited record before us, the facts appear to be as follows .
Respondent John Burness is the sole shareholder of Respondent Petrotech
Resources Corporation. Petrotech engages in oil and gas drilling, and to
finance its operations, Burness sometimes solicits investments by members of
the general public. Among those investors was James Eickman, a resident of
Arkansas, who invested $8,500 .00 in the Respondents' drilling operations .
Believing that there was improper conduct by the Respondents associated with
his investment, Eickman sought the return of his funds . With this objective,
Eickman retained Movant, H.C. "Blue" Hill, a/k/a Colt Ledger . It appears from
the record that Hill's company, Colt Ledger 8v Associates, seeks to recover
investments for its clients using, to put it mildly, highly aggressive collection
techniques.
In Hill's initial communication with Respondents he alleged that they
were "in violation of several state and federal statutes and regulations ." He
threatened to file complaints with authorities in Kentucky and Arkansas, and
with the federal government unless Eickman's money was returned. Hill also
threatened to "post [his] findings on every known blog site dealing with
investment scams," and to "notify [Respondents'] potential client base of [their]
activity."
When Respondents refused to refund Eickman's investment, Hill began
to follow through on his threats. Among other things, he posted on the
internet statements that Respondents were engaged in illegal conduct, had
violated securities and criminal laws, and that "MOST OF WHAT THEY DO IS
CROOKED." (Capitalization in original) . He also directly contacted
Respondents' customers, clients, and investors, including the City of
Edmonton, with whom Respondents were negotiating a substantial gas
contract, claiming that Respondents were engaged in illegal activity .
In response to Hill's activities, on August 13, 2009, Respondents filed a
complaint in Barren Circuit Court alleging, among other things, defamation
and invasion of privacy, requesting damages and injunctive relief. On
November 24, 2009, Respondents filed a motion for a temporary injunction
pursuant to CR 65 .04 seeking to enjoin Hill from making further defamatory
comments relating to them.
On November 30, 2009, the circuit court entered an order that enjoined
Hill "from directly and/or indirectly contacting any customers, clients,
investors, and/or business associates of [Respondents] for the purpose of
defaming the [Respondents], and shall likewise be enjoined from publishing, by
any means, manner, or media, or otherwise making [any defamatory] public
comments pertaining in any way to the [Respondents] or [their] business
dealings ." The injunction was to remain in effect throughout the pendency of
the action, or until further orders of the court.
Hill subsequently moved for interlocutory relief in the Court of Appeals
pursuant to CR 65 .07 . The Court of Appeals denied the motion, thereby
upholding the temporary injunction. Hill's petition for relief from the
injunction is now before this Court pursuant to CR 65 .09 .
For the reasons set forth below, we hold that both the United States
Constitution and the Kentucky Constitution forbid the issuance of an
injunction to restrain allegedly defamatory speech until the falsity of the speech
has been finally adjudicated in the trial court. Since there has been no final
determination upon that issue in this case, we grant Hill's motion for relief, and
vacate the circuit court's injunction as an impermissible prior restraint on
speech .
I I. ANALYSIS UNDER THE FIRST
AMENDMENT OF THE UNITED STATES CONSTITUTION
As explained below, the temporary injunction entered by the circuit court
is an improper prior restraint of speech under the First Amendment of the
United States Constitution .
A. Rule Against Prior Restraint of Speech
Since,New York Times Co. v. Sullivan, 376 U .S . 254 (1964), the United
States Supreme Court has recognized a tension between protection of
reputation and protection of freedom of expression . Of course, the tension is
strongest when there is a media defendant,) the subject matter is one of public
interest, or the plaintiff is a public official or a public figure. See Gertz v.
Robert Welch, Inc., 418 U .S . 323 (1974) ; Dun & Bradstreet, Inc. v. Greenmoss
Builders, Inc., 472 U.S . 749 (1985) . "This case does not come close to
implicating such weighty concerns . Nevertheless, it is clear that even where a
purely private matter between private parties is at issue, the defendant's
freedom of expression is still implicated, and the First Amendment still affords
some, though less substantial, protections." Innes v. Howell Corp., 76 F.3d
702, 709 (6th Cir. 1996) (citing Connick v. Myers, 461 U .S. 138 (1983))
(describing "an employee's false criticism of his employer on grounds not of
public concern" as an example of less important but still-protected speech,
cited with approval in Dun & Bradstreet, 472 U.S . at 760) .
Moreover, a fundamental principle which has emerged from the cases
interpreting the First Amendment is that governmental units and courts may
not impose a prior restraint on speech. See Nebraska Press Assn. v. Stuart,
427 U .S . 539 (1976) ("[P]rior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amendment rights") ;
Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376
(1973) (a prior restraint should not "swee[p]" any "more broadly than
necessary") . As such, the Constitution forbids it. See Carroll v. President and
Comm'rs of Princess Anne, 393 U.S . 175, 183-184 (1968) (An "order" issued in
1 The involvement of a media defendant usually implicates freedom of the press, as well
as freedom of speech .
"the area of First Amendment rights" must be "precis[e]" and narrowly
"tailored" to achieve the "pin-pointed objective" of the "needs of the case") ; see
also Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S .
569 (1987) (regulation prohibiting "all `First Amendment activities"'
substantially overbroad) ; Tory v. Cochran, 544 U .S . 734, 738 (2005) .
"Any prior restraint on expression comes to this Court with a `heavy
presumption' against its constitutional validity . Respondent[s] thus carr[y] a
heavy burden of showing justification for the imposition of such a restraint."
Organization for a Better Austin v. Keefe, 402 U.S . 415, 419 (1971) (citations
omitted) .
The temporary injunction that prohibits Hill from making future
statements about Respondents is a prior restraint on speech. Therefore, our
review begins with a presumption that the injunction is invalid.
B. The Traditional Rule Forbidding Injunctions Against Defamation
Aside from the First Amendment's heavy presumption against prior
restraints, courts have long held that equity will not enjoin a libel . See
Nebraska Press Ass'n, 427 U .S . at; Kramer v. Thompson, 947 F.2d 666, 677-78
(3rd Cir. 1991) ; Community for Creative Non-Violence v. Pierce, 814 F.2d 663,
672 (D .C . Cir. 1987) ("The usual rule is that equity does not enjoin a libel or
slander and that the only remedy for defamation is an action for damages .") ;
American Malting Co. v. Keitel, 209 F. 351, 354 (2d Cir. 1913) ("Equity will not
restrain by injunction the threatened publication of a libel, as such, however
great the injury to property may be . This is the universal rule in the United
States . . . .") ; Metropolitan Opera. Ass'n, Inc. v. Local 100, Hotel Employees and
Restaurant Employees International Union, 239 F.3d 172, 1,77 (2d Cir. 2001);
42 Am. Jur. 2d, Injunctions, § 97 (2010) ("The general rule is that equity does
not enjoin libel, rather, the only remedy for defamation is an action for
damages, and there is a heavy presumption that prior restraints on expression
are unconstitutional .") . (footnotes omitted)
"Although the rule has been severely criticized by legal scholars, and the
courts have occasionally deviated therefrom in extreme cases or where a
collateral ground of equity jurisdiction could be found, it appears to be clearly
established by the large majority of the cases upon this question that equity
will not grant an injunction against the publication of a personal libel or
slander in the absence of some independent ground for the invocation of
equitable jurisdiction ." W.E. Shipley, Annotation, Injunction as a Remedy
Against Defamation ofPerson, 47 A.L.R .2d 715 (1956) .
The traditional rule against enjoining defamation is of long-standing
effect, having been first established in eighteenth-century England . Balboa
Island Village Inn, Inc. v. Lemen, 156 P.3d 339, 349 (Cal. 2007) (discussing
historical background of rule) . As later discussed, while there appears to be an
emerging modern trend toward permitting such injunctions upon a final
adjudication that the speech under question is false, there nevertheless remain
staunch advocates of the traditional rule that a prior restraint on speech is
unacceptable under any circumstances . This position, along with supporting
authorities, is defended by prominent constitutional law professor Erwin
Chemerinsky in his law review article, Injunctions in Defamation Cases, 57
Syracuse L. Rev . 157 (2007) .
Defenders of the traditional rule argue that we should not disturb the
maxim that equity will not enjoin defamation, and that injunctions should
never be allowed as a remedy in defamation cases . Professor Chemerinsky
argues that even after a judicial determination that the speech at issue is false,
"[t]he injunction means that a person can only speak by going before the judge
and getting permission . That is the very essence of a prior restraint ." Id. at
163. He advocates that "[i]f history matters in interpreting the First
Amendment, it could not be clearer: injunctions were not allowed as a remedy
in defamation actions ." Id. at 168. In his view, it is always the case that
"damages, not injunctions, are the appropriate remedy in a defamation action,"
id. at 169, "even in the case of the "judgment proof defendant[ .]" Id. at 170 .
Under the traditional rule, it is of no concern that the defendant may not be
able to pay the damage award because "[c]ourts . . . do not find that damages
remedies are inadequate simply because the plaintiff cannot afford to pay
them." Id. However, as next discussed, we find that this absolutist view is
flawed .
C. False, Defamatory Speech is Unprotected Speech
The rationale of the traditional rule is severely undercut by the
countervailing view that defamatory speech is unguarded by the Constitution .
Application of the rules relating to unprotected speech would compel the
conclusion that the First Amendment is not even implicated in the case of
false, defamatory speech, and therefore the Constitution poses no bar to any
injunction restraining such speech .
"From 1791 to the present," the First Amendment has "permitted
restrictions upon the content of speech in a few limited areas," and has never
"include[d] a freedom to disregard these traditional limitations ." R.A. V v. St.
Paul, 505 U.S . 377, 382-383 (1992) . These "historic and traditional categories
long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime
Victims Bd., 502 U .S . 105, 127 (1991) (Kennedy, J., concurring in judgment),
include obscenity, Roth v. United States, 354 U.S . 476 (1957) ; defamation,
Beauharnais v. Illinois, 343 U.S . 250 (1952) ; fraud, Virginia Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U .S. 748, 771 (1976) ; incitement,
Brandenburg v. Ohio, 395 U .S . 444 (1969) (per curiam) ; and speech integral to
criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .
These are "well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem." Choplinsky v. New Hampshire, 315 U.S . 568, 571-572 (1942) ; U.S. v.
Stevens, 130 S. Ct. 1577, 1584 (2010) .
Defamation's place on the list of unprotected speech is secure . As
straightforwardly stated in Beauharnais almost sixty years ago, "[l]ibelous
utterances [are not] within the area of constitutionally protected speech ."
Beauharnais, 343 U.S . at 267 .
The traditional view, however, is also subject to fair criticism. What is or
is not defamatory expression cannot often be summarily ascertained . A rush
to enjoin distasteful, annoying, unpopular, or even damaging speech would
often result in the suppression of truthful, legitimate discourse. Thus, given
the flaws inherent in each of the foregoing views, we find it appropriate to
consider a more modern and moderate analysis that recognizes the need to
minimize the damage of unprotected, defamatory speech in a way that
preserves the important constitutional values of free speech and due process .
D. Modern Rule Permitting Injunctions Against Defamation
The recognition that false, defamatory speech is unprotected by the First
Amendment has resulted in the development of a modern, superseding rule
concerning the enjoining of defamatory speech . Under the modern rule, once a
judge or jury has made a final determination that the speech at issue is
defamatory, the speech determined to be false may be enjoined . The rule has
been stated as follows:
[T]he prohibition [against enjoining defamation] is not absolute, as
there are exceptional cases in which a prior restraint is acceptable .
For instance, an injunction would issue to prohibit a defendant
from reiterating statements which had been found in current and
prior proceedings to be false and libelous to prevent future injury
to the libel plaintiffs personal reputation and business relations .
An injunction restraining the publication of matter defaming a
plaintiff personally [is] proper where there [is] no adequate remedy
at law because of the recurrent nature of the defendant's invasions
of the plaintiffs rights, the need for a multiplicity of actions to
assert the plaintiffs rights, the imminent threat of continued
emotional and physical trauma, and the difficulty of evaluating the
injuries in monetary terms.
42 Am. Jur. 2d, Injunctions, § 97 (2010) (footnotes omitted) ; see also Pittsburgh
Press Co., 413 U.S . 376; Metropolitan Opera Assn, Inc, 239 F.3d 172
(preliminary injunction against picketing and statements made in labor dispute
10
reversed ; equity will enjoin a libel only in extraordinary circumstances) ; San
Antonio Cmty . Hosp : v. Southern Calif. Dist. Council of Carpenters, 125 F .3d
1230 (9th Cir. 1997) (admitted falsity) ; Kramer, 947 F.2d 666 (injunction
reversed ; Pennsylvania law; extensive review of modern and historical
authorities) ; Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir. 1990)
(injunction permitted if prior adjudication of falsity; District of Columbia law) ;
Karhani v. Meijer, 270 F.Supp .2d 926 (D . Mich . 2003) (temporary restraining
order enjoining libel and ethnic intimidation would be unconstitutional prior
restraint) ; Aguilar v. Avis Rent A Car System, Inc., 980 P.2d 846 (Cal . 1999)
(narrowly drawn injunction prohibiting ethnic intimidation upheld) ; Balboa
Island Village Inn, Inc., 56 P.3d 339; Sid Dillon Chevrolet-Oldsmobile-Pontiac,
Inc. v. Sullivan, 559 N .W.2d 740 (Neb. 1997) (injunction denied; no prior
adjudication of falsity) ; O'Brien v. Univ. Cmty. Tenants Union, Inc., 327 N .E.2d
753 (Ohio 1975) (injunction proper if prior judicial determination of falsity) ;
Nolan v. Campbell, 690 N.W.2d 638 (Neb . App . 2004) (narrowly drawn
injunction proper where prior adjudication of falsity) .
The emergence of the modern rule was anticipated by now U.S . District
Judge William O . Bertelsman in his 1971 law review article, Injunctions Against
Speech and Writing: A Re-evaluation, 59 Ky . L .J. 319 (1971) . In the article,
Judge Bertelsman suggested that the traditional view, which was firmly
entrenched at the time, should be reevaluated, and that injunctions could be
constitutionally granted in defamation and privacy cases under a standard
similar to the rule as stated above . More recently, in Lassiter v. Lassiter, 456
F.Supp .2d 876, 882 (E.D . Ky. 2006), Judge Bertlesman addressed the matter
further.
In Lassiter, after discussing developments in the law since the
publication of his 1971 article, Judge Bertelsman noted that this Court had not
addressed the issue, but he surmised that when afforded the opportunity to
rule on the propriety of injunctive relief against defamation or invasion of
privacy, we would, if we permitted an injunction at all, do so only under the
following standards :
l . That the injunction be clearly and narrowly drawn so as not to
prohibit protected expression ;
2 . That the falsity or illegality of the expression be finally
adjudicated prior to the issuance of the injunction;
3 . That the falsity or illegality be established by at least clear and
convincing evidence ;
4. That the enjoined expression not be political in nature, or
otherwise protected by the First Amendment, or on a subject so
imbued with the public interest that its publication outweighs the
social policy in the protection of reputation and privacy; and
5 . That the usual equitable requirements for an injunction be met.
Id. at 884 .
We generally agree with the formulation suggested by Judge Bertelsman,
and adopt all of it except the requirement that the falsity of the speech at issue
be proven by clear and convincing evidence . 2 While Judge Bertlesman proffers
2 We emphasize at this point that the discussion herein excludes injunctions that may
relate to media defendants, public figures, and matters of public interest . An
entirely separate set of rules is implicated when the litigation involves these parties
and issues. See New York Times v. Sullivan, 376 U .S . 254 and its progeny.
12
a commendable suggestion advancing the cause of freedom of speech, the rule
as it has developed in other jurisdictions has not required an elevated standard
of proof, and we believe that the well-established preponderance of evidence
standard normally used in civil cases strikes the proper balance between the
traditional rule that defamation cannot be enjoined at all and the recognition
that false, defamatory speech is unprotected speech.
Thus, as a matter of first impression, we adopt the modern rule that
defamatory speech may be enjoined only after the trial court's final
determination by a preponderance of the evidence that the speech at issue is,
in fact, false, and only then upon the condition that the injunction be narrowly
tailored to limit the prohibited speech to that which has been judicially
determined to be false.
E. Application of Modern Rule to this Case
Application of the modern rule that defamatory speech may be enjoined
only following a final determination that the speech is false compels the result
that Hill be granted the relief requested in his CR 65 .09 motion, and that the
injunction entered by the circuit court be set aside .
We first note that the cases cited by the Respondents in support of the
injunction, Lothschuetz, 898 F.2d 1200 and In re Davis, 347 B .R. 607 (W.D . Ky .
2006), follow the modern rule as described above, and provide no support for
the temporary injunction .
In Lothschuetz, the defendants (Carpenter and Carpenter Radio Co .),
among other things, sent correspondence to agencies and politicians alleging
13
that co-plaintiffs (Lothschuetz, Carolyn C. Hill, and United
Telecommunications, Inc.) had violated conflict-of-interest laws, had ignored
ethical responsibilities, and had stolen defendants' communications
equipment. The plaintiffs filed an action alleging, among other things, libel.
Following discovery violations, the trial court entered a default judgment
against both defendants, thereby finally adjudicating the complained of
statements to be false. Id. at 1204 . See Davis v. Tuggle's Adm'r, 297 Ky. 376,
178 S . W.2d 979 (1944) (The fact that no defense was offered in first suit does
not affect conclusiveness of judgment in subsequent litigation between same
parties over same subject matter, since rule as to conclusiveness of judgment
applies to a judgment by default or decree pro confesso) . The trial court
awarded the plaintiffs nominal damages, but refused their request for an
injunction preventing future defamatory comments by the defendants .
On appeal, the Sixth Circuit held "[I]n view of Carpenter's frequent and
continuing defamatory statements, an injunction is necessary to prevent future
injury to Carolyn Hill's personal reputation and business relations. [citations
omitted], . . . [but] would limit the application of such injunction to the
statements which have been found in this and priorproceedings to be false and
libelous ." Lothschuetz, 898 F.2d at 1208-1209 (Wellford, Judge, concurring in
part and dissenting in part) 3 (emphasis added) .
3 Judge Wellford's dissent on this point was joined by Judge Hull, and was thus the
majority opinion upon the issue. Judge Guy, who wrote the lead opinion, agreed
with the District Court that the injunction requested by the plaintiffs was an
unwarranted prior restraint on freedom of speech, citing Community for Creative
14
Thus, in Lothschuetz, unlike in the present case, there had been a
definitive adjudication (albeit by default judgment) that the defendants' public
accusations were false, and the injunction. was narrowly confined to those
statements proven to be false as a matter of res judicata..
Similarly, in In re Davis, 347 B.R . 607, the Davises opened a webpage
that contained material suggesting that Kenneth Mitan and his family,
including Frank Mitan, were con artists, and that one should avoid doing
business with them. The Bankruptcy Court found for the Davises on all claims
except Frank's claim for libel. The court awarded Frank Mitan nominal
damages, ordered any reference to Frank to be stricken from the Davises'
website, and enjoined the Davises from operating the offensive website or any
similar website for the duration of their Chapter 13 plan. Id. at 610.
Upon review, the federal District Court recognized this country's "rich
tradition of freedom of speech" and that "[a)ccordingly, the courts must tread
lightly when enjoining speech ." Id. at 612 - 613 . The court nevertheless
concluded that "[t]he . freedom of speech is not an absolute right, and a court
may use its equitable power to protect an entity from defamatory speech where
there is no adequate remedy at law." Id . a t 613 (citing Lothschuetz, 898 F.2d
1200, and Pittsburgh Press Co, 413 U.S . 376) . The District Court then held:
The Davises do not object to the order compelling them to remove
all reference to Frank Mitan so much as they object to the
enjoining of their entire website for the duration of their Chapter
13 plan, a period that could be as long as five years . 11 U .S.C. §
Non-Violence, 814 F .2d at 672 ("[t)he usual rule is `that equity does not enjoin a libel
or slander and that the only remedy for defamation is an action for damages ."') .
15
1322 . The court agrees that the scope of this injunction is overly
broad . While Frank Mitan may be entitled to injunctive relief to
protect him from future defamation, this relief does not require the
Davises' complete silence over a multi-year period. Although the
Bankruptcy Court's description of the website as a "scandal sheet"
may be apt, there has been no finding that it is defamatory with
regard to anybody but Frank. On remand, the Bankruptcy Court is
to reconsider the scope of its injunction . To the extent that Frank
still requires protection from defamation, the Court is to craft a
solution that provides that protection without unduly trampling on
the Davises' right to publish.
Id. (emphasis added) .
Accordingly, in Davis, there had been a final adjudication that the
Davises' statements concerning Frank Mitan were false, unlike our present
case in which there has been no final adjudication of the falsity of Hill's speech.
Further, .Davis narrowly tailored the remedy to restrain only such speech that
had been finally adjudicated as false .
In summary, neither Lothschuetz nor Davis supports, as suggested by
the Respondents, a broad authority for courts to enjoin allegedly defamatory
speech prior to final adjudication that the speech is false . Thus, Lothschuetz
and Davis provide no support for the temporary injunction entered in this case.
Upon application of the modern rule as described above to the
circumstances of the present case, we need go no further than to note that the
speech alleged to be false and defamatory by the Respondents has not been
finally adjudicated to be, in fact, false.4 Only upon such a determination could
4 While there may be indicia of falsity in the record before us, nevertheless, it is
possible that, ultimately, it may be determined that Hill's speech, or part of it, is
truthful, and he is aiding the public interest by exposing questionable investment
solicitations by Respondents.
16
the speech be ascertained to be constitutionally unprotected, and therefore
subject to injunction against future repetition . We are mindful that the rule
announced herein delays the availability of injunctive relief during the time it
takes to litigate the issue . Thus, while the rule may temporarily delay relief for
those ultimately found to be innocent victims of slander and libel, it prevents
the unwarranted suppression of speech of those who are ultimately shown to
have committed no defamation, and thereby protects important constitutional
values . We trust that our trial courts will use their discretion to balance those
competing interests by bringing such cases to final adjudication in a
reasonably timely manner .
Accordingly, we grant the relief requested by Movant in his CR 65 .09
motion, and dissolve the circuit court's injunction. We also hold, consistent
with our determination herein, that upon a final adjudication of the falsity of
any statements made by Hill, a narrowly tailored injunction may be issued,
covering only those specific statements found by a jury or by a judge in a
bench trial, to be false. 5
5 As previously noted, the circuit court's order enjoined Hill "from directly and/or
indirectly contacting any customers, clients, investors, and/or business associates
of Plaintiffs for the purpose of defaming the Plaintiff[s], and shall likewise be
enjoined from publishing, by any means, manner, or media, or otherwise making
[any defamatory] public comments pertaining in any way to the Plaintiffs or
Plaintiffs' business dealings." This wide-sweeping language could well serve as a
model of an injunction that does not meet the narrow tailoring requirements
necessitated by the rule as explained . Thus, in any event, based upon its wording,
it would be necessary to vacate the injunction as impermissibly overly-broad .
17
III . ANALYSIS UNDER THE SECTION ONE AND SECTION EIGHT OF THE
KENTUCKY CONSTITUTION
Independently of the First Amendment analysis set forth above, we also
conclude that the injunction is in violation of the free speech provisions set
forth in Section 8 and Section 1(4) of our Kentucky Constitution . We begin by
noting that there is no authority addressing the specific issue before us under
the Kentucky Constitution, and so our references are principally limited to the
text of the relevant provisions of the Kentucky Constitution, and the 1890
Constitutional Debates addressing the drafters' understanding of their
meaning .
Section 1(4) of the Kentucky Constitution provides as follows: "All men
are, by nature, free and equal, and have certain inherent and inalienable
rights, among which may be reckoned : . . . Fourth: The right of freely
communicating their thoughts and opinions ."
Section 8, titled "Freedom of speech and of the press," provides as
follows : "Printing presses shall be free to every person who undertakes to
examine the proceedings of the General Assembly or any branch of
government, and no law shall ever be made to restrain the right thereof. Every
person may freely and fully speak, write and print on any subject, being
responsiblefor the abuse of that liberty." (emphasis added) .
Read literally, the provision would appear to prohibit any restriction of
speech on any subject, though the speaker would thereafter be subject to any
criminal or civil consequences available through our court system . Thus, as
relevant to the present case, a reasonable restatement of the second sentence
18
of Section 8 may well be as follows: "No prior restraint against speech shall
issue against a speaker by injunction, but if the speaker goes too far, he must
thereafter answer civilly or criminally in the Courts of the Commonwealth ."
Thus. , Section 8 could reasonably be interpreted as supporting the traditional
rule that defamatory speech may not be enjoined at all . In any event, the
provision does not support the Respondents' position that courts may broadly
enjoin defamatory speech. The issue, then, is whether speakers, such as Hill,
may, under Section 8, have protections above and beyond the floor established
by the First Amendment.
While the unmistakable clarity of Section 8 may compel, in certain
instances, greater protection to speech than the First Amendment, at the same
time, in interpreting the provision, it must also be recognized, as previously
discussed, that some categories of speech are undeserving of any constitutional
protection at all, including false, defamatory speech . In this vein, we conclude
that Section 8 may be interpreted consistently with the modern rule that
defamatory speech may be enjoined following a judicial determination of falsity.
Since the late 1500's the common law has afforded a cause of action for
damage to a person's reputation by the publication of false and defamatory
statements, not only to allow an individual to vindicate his good name, but also
to allow him to obtain redress for harm caused by the statements . Milkovich v.
Lorain Journal Co., 497 U.S . 1 (1990) . Thus, there is a long-standing cause of
action, predating our 1891 Constitution, permitting a plaintiff to seek remedy
through the courts against those spreading false information about him. It
19
follows that Section 8 must be interpreted with this principle in mind, and with
the recognition that its drafters understood this limitation on speech . The
debates themselves reflected a strong sentiment against the tolerance of
defamation . For example, in his discussion of Section 8 before the Convention,
Delegate C . J. Bronston, of Lexington, in the colorful language of the times,
orates as follows :
. . . "Is libel worse than murder?" I answer the gentleman, in the
presence of this intelligent audience, yes, it is worse than murder .
You may kill a man and put him away beneath the sod, and there,
over his mouldering body, may grow the green. grass, and his
children and grandchildren may come about and shed a tear ; but
take from him his reputation, and he is a living corpse walking
among men - a stench in their nostrils - a being subject to the
scorn of the human race. Worse than murder ; because the man
who strikes down his fellow-man invokes at once the anger and the
determination of every human being to prosecute him; but let him,
by the insidious means of the press, strike down a man's
character; and the people have their prurient taste gratified for a
moment, and then forget, as it were, and leave the poor wretch to
wander degraded throughout this life .
1 1890 Kentucky Constitutional Convention Debates, 543 .
As previously discussed, false defamatory speech enjoys no
constitutional protections under the First Amendment . Section 8 should be
similarly construed, and this construction, as reflected in the comments of
Delegate Bronston, would be consistent with the sentiments of its drafters.
False, defamatory speech advances no public interest, whereas there is an
important right of long-standing recognition allowing a citizen redress, through
the courts, of protection against false, defamatory statements against his good
name and reputation .
20
Accordingly, we conclude a. reasonable interpretation of the phrase "being
responsible for the abuse of that liberty (to speak freely)" (emphasis added)
would, in addition to monetary damages, also include a speaker's "being
responsible" to respect, and abide by, a final determination by a judge or jury
that his defamatory speech is false. This obligation of "being responsible"
would seem to include a duty to refrain from repetition of speech adjudicated to
be false, and, it follows, would also include the responsibility to abide by a
narrowly tailored injunction against repetition of the false speech.
As such, Section 8 may be interpreted consistently with authorizing an
injunction once speech has been finally adjudicated as false . We so interpret
the provision. See Balboa Island Village Inn, Inc., 56 P.3d 339, (Interpreting a
California constitutional provision similar to Section 8 as permitting an
injunction against defamatory speech upon an adjudication of falsity.6) .
In summary, consistent with the modern rule, we construe Section 8 as
permitting an injunction against false, defamatory speech, but only upon a
final judicial determination that the speech is false . See CR 65 .01 . "A party
may obtain injunctive relief in the circuit court by permanent injunction in a
final judgment." (emphasis added.) Until such determination of falsity,
however, the provision is best interpreted as proscribing a preliminary restraint
upon the alleged defamatory speech . We hold that neither a restraining order
6 Article I, section 2, subdivision (a) of the California Constitution states : "Every
person may freely speak, write and publish his or her sentiments on all subjects,
being responsible for the abuse of this right ."
21
under CR 65 .03, nor a temporary injunction . under CR 65.04 may be used to
enjoin allegedly defamatory speech.
CONCLUSION
For the foregoing reasons we grant Hill's motion for CR 65 .09 relief, and
vacate the temporary injunction . If, however, upon final adjudication in the
trial court, specific and particular statements alleged to have been made by Hill
are found to be false, the trial court may then enter a narrowly tailored
injunction to prevent further dissemination of the false and defamatory
statements .
All sitting . Minton, C .J., Abramson, Noble, Schroder and Scott, JJ .,
concur. Cunningham, J., concurs in result only by separate opinion .
CUNNINGHAM, J ., CONCURRING IN RESULT ONLY : "Who steals my
purse steals trash ; `tis something, nothing. Twas mine, `tis his, and has been
a slave to thousands . But he that filches from me my good name robs me of
that which not enriches him, and makes me poor indeed."
It is precisely for this reason, so cogently expressed by Shakespeare, that
our law does not protect defamation of -character. John Burness and Petrotech
were in the process of being defamed and maligned . They have resorted to the
protection of the courtnot the vindication of the street-to protect their good
names .
Therefore, while I concur with the excellent writing and rationale of
Justice Venters, I wish to make clear that, in my view, the courts are still able
to protect one from perpetual vilification .
22
I write to express my concern about the term, "final adjudication," used
by the majority. It would have been sufficient, in my opinion, if the trial court,
in this case, had conducted a full blown hearing and, had entered findings on
the falsity of the statements, even though other claims might still be pending.
To that extent, there would not have been a "final adjudication" of the case, but
there would have been one on the falsity of the statements . To my mind, that
would have been sufficient "adjudication" to have protected the constitutional
rights of the declarant as well as the reputation of the person aggrieved. Such
was not done here and, thus, I concur in result.
I am heartened by the words of Justice Venters that "upon a final
adjudication of the falsity of any statements made by Hill, a narrowly tailored
injunction may be issued . . . ." It is my opinion that a temporary injunction
may still be obtained if the trial judge holds a hearing and makes a finding that
the statements are, in fact, false. This would allow a temporary injunction to
be in place to protect the reputation of the complainant as the lawsuit proceeds
to a conclusion .
With the expression of this view, I concur in result only.
COUNSEL FOR MOVANT :
Matthew James Baker
911 College Street, Suite 200
Bowling Green, Kentucky 42 101
COUNSEL FOR RESPONDENTS:
Michael Scott Vitale
English, Lucas, Priest and Owsley
1101 College Street
P O Box 770
Bowling Green, Kentucky 42102
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