The Volokh Conspiracy
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Overbroad Anti-Speech Injunction Week continues here at the Volokh Conspiracy (see this post and this one), with another unconstitutionally overbroad injunction against speech, rightly overturned on First Amendment grounds by the Arizona Court of Appeals. From the Court of Appeals opinion, Streeter v. Visor:
[Dr. Matthew] Hansen, aided by physician's assistant [Geoffrey] Streeter, performed shoulder replacement surgery on LeRoy Visor. LeRoy Visor continued to see Hansen for follow-up care for several months after the surgery, during which he claims he suffered increasing pain. LeRoy Visor then underwent revision surgery with another surgeon.
Following the revision surgery, the Visors wrote Hansen and Streeter alleging medical malpractice and demanding compensation for LeRoy Visor's alleged injuries. The Visors also stated that, if their compensation demand was not met, they would "commence with legal action, filing a complaint with the medical board and alert various media sources of this malpractice."
After sending their demand letter, the Visors prepared two flyers titled "Malpractice Alert" and "Medical Negligence Awareness." Both flyers stated detailed allegations against Hansen and Streeter regarding LeRoy Visor's care and treatment. The Visors sent flyers to Hansen's and Streeter's homes and places of business, as well as to Streeter's neighbors and parents. Sharon Visor also handed flyers to people visiting Hansen's and Streeter's offices and placed flyers on vehicles in the parking lot.
Both Hansen and Streeter thereafter obtained injunctions against harassment against each of the Visors. The injunctions prohibited the Visors from contacting Hansen or Streeter or visiting their homes or workplaces. Each injunction also broadly prohibited the Visors from further distributing the flyers at issue, proscribing "mak[ing], post[ing] or distribut[ing] comments, letters, faxes, flyers or emails regarding [Hansen or Streeter] to the public (including but not limited to [Hansen's and Streeter's] family, neighbors, workplaces or colleagues) without agreement of the parties or permission of the court." …
This broad restriction expressly forbidding future speech is a classic example of a prior restraint. Prior restraints, which we have characterized as "the most serious and least tolerable infringement on First Amendment rights," carry a heavy presumption of invalidity…. Here, the injunctions at issue were not narrowly tailored and were overbroad because they prohibited all public speech regarding Hansen or Streeter.
Hansen and Streeter counter that the Visors' past behavior—targeting individuals associated with the medical providers with "detailed and defamatory statements"—justifies the scope of injunctions. But the injunctions sweep far beyond communications with particular individuals and instead enjoin any public speech about Hansen and Streeter, including for instance internet reviews (even wholly truthful ones) expressing dissatisfaction with treatment or even complaints to regulatory bodies. Moreover, although Hansen and Streeter now characterize the Visors' flyers as "defamatory," they expressly excluded the issue of defamation from consideration in this proceeding, and there is no record determination (judicial or otherwise) regarding the validity of the Visors' statements….