The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Larry Martin and Michael Snapp think their neighbor, William Siegle, had mistreated them. They say, for instance, that he threw rocks at their home, and damaged their window; they claim to have a video from another neighbor showing this. They say they contacted the police about this, and the police arrested plaintiff for criminal mischief; that case appears to be pending.
They wrote about this, and other things, on a web site criticizing Siegle (who is a local real estate agent), available under www.williamsiegle.com and www.billsiegle.com; among other things, they included a copy of the police incident report. (All this is drawn from a motion they filed in court.)
Siegle sued them, for defamation and for interference with business relations; and he got Judge John E. Harrington to issue an injunction banning not just false and defamatory statements by defendants about him, but all online statements:
[T]he Defendants shall immediately …
[b.] Immediately delete and shut down any and all additional websites created by them or at their direction that disclose information related to William Siegle;
[c.] Immediately delete any and all information posted by Defendant regarding William Siegle on any internet site as well as any and all social media outlets;
[d.] Defendants shall not create or cause to be created any additional websites related to William Siegle;
[e.] Defendant shall not post on the internet as well as any other social media outlets any information whatsoever regarding William Siegle;
[f.] Defendants shall not use or continue to use automated or "robo" calls/text messages to disseminate the existence of the aforementioned websites ….
This injunction covers true statements and opinions, and not just false statements; indeed, Siegle's papers responding to the defendants' motion don't deny that Siegle threw the rocks or was cited by the police. And the injunction has no exception for reposting of public record government documents, such as the police incident report.
This can't be right; as defendants argue in their motion,
Defendants' right to publish factually accurate information about the manner within which Plaintiff attacked their home is undeniably protected by the First Amendment. Although Defendants may have no Constitutional right to publish information that is clearly false, Plaintiff has been unable to establish that any statement contained in the website was defamatory, libellous, incorrect, or even inaccurate…. Every single fact published on the website attached as Exhibit "A" to Plaintiff's filing involved either information within the public sphere or occurrences where the Defendants were direct participants with personal knowledge of the events….
Nor can the ban on true statements be justified on the theory that they interfere with Siegle's business relations.There is a libel exception to the First Amendment, for certain kinds of false and defamatory factual statements. But there is no interference-with-business-relations exception that would cover true statements and opinions. (See NAACP v. Claiborne Hardware (1982).)
As New Jersey courts recognize, "An action for tortious interference based on the same verbal conduct [as raised in a defamation action] would equally chill the free expression we seek to protect. If the public policy [for protecting expression against a defamation claim] is to be effective, 'we must not permit its circumvention by affording an almost equally unrestricted action under a different label.'" Binkewitz v. Allstate Ins. Co. (N.J. Super. Ct. App. Div. 1988). (I set aside here the robotext issue, which appears to refer to a group text to various real estate agents who work with Siegle publicizing the web sites; I think such robotexts are also generally constitutionally protected, though targeted laws authorizing recipients to order the sender to stop sending them might be constitutional, see Rowan v. U.S. Post Office Dep't (1970).)
Defendants acknowledge that some state courts allow injunctions against libel limited to libel, after a trial at which the material has been found libelous:
Once a litigant has proceeded through trial and obtained a jury verdict that the defendant has published statements that are libellous, only then will a court "adopt this exception to the general rule that equity will not enjoin a defamation." After a trial by jury, the traditional reasons supporting the general rule no longer apply, since "it obviously cannot be said that a defendant has been denied the right to a jury determination of the veracity of his statements if a judge issues an injunction against further statements after a jury has determined that the same statements are untrue" and the restraint is no longer an "unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected."
But there has been no such trial finding the speech to be false and defamatory in this case. And, as defendants argue,
If there remains sufficient doubt as to whether a restraint on speech is proper after a jury determines that the defendant's publication was defamatory, then certainly Plaintiff has failed to satisfy his burden of establishing that his claim is predicated upon a settled legal right when the issue concerns a restraint on speech prior to a jury verdict.
The plaintiff's argument, as best I can tell, simply seems to be (1) that the defendants' statements are "false and defamatory," but without an explanation of why that is so, and why that would justify a ban on all statements by defendants about the plaintiff, and (2) that the First Amendment doesn't apply to this dispute:
Defendants' brief is replete with references to the First Amendment, but this case is not about "free speech." Defendants' false and defamatory statements that Plaintiff is victimizing the gay community are not protected by the First Amendment. [Note that defendants deny that they alleged that plaintiff was motivated by defendants' being gay. -EV] This not a case that involves the public interest and there will be no harm to the public, or for that matter, even to Defendants, if the restraints remain. However, there will be irreparable hmm to Plaintiff if the [restraints] are removed; Plaintiff has a valid claim for tortious interference with prospective business relations and that is a basis to maintain the restraints….
As previously detailed, this matter is a dispute between neighbors that has nothing to do with freedom of expression, religion, press, or assembly. It is alleged that Plaintiff threw a rock at Defendants' home and now they are pursuing a vendetta against him. Their vendetta includes false, malicious, and defamatory statements that Plaintiff is victimizing the gay community. They should not be permitted to subvert the First Amendment as a way to vent their personal animosity. When questioned by the Court as to the purpose of the websites, … Defendants failed to provide a specific direct response; that is the "proof of the pudding." That Defendants arc unable to state a purpose for the websites "speaks volumes.["] These false, malicious, and defamatory statements are not protected by the First Amendment.
Defendants are pursuing an improper crusade against Plaintiff. He has offered to pay for the damage and Defendants have refused to accept that reasonable, appropriate offer. Instead, they seek to wage a personal campaign against Plaintiff that improperly seeks to rely upon the protections of the First Amendment….
This is not a case involving protected speech; it involves dispute between neighbors, nothing more, and nothing less. While Defendants cannot be compelled to accept a settlement offer, they can and should be compelled to refrain from their personal crusade. They have no protected right to publish false, defamatory statements as part of their continued campaign to harass Plaintiff.
But the First Amendment generally protects speech, including by neighbors about each other, whether or not motivated by a "vendetta." While such speech can be restrained in certain narrow circumstances (chiefly if it's false and defamatory, or if it's threatening), it can't just be categorically banned because the judge thinks it's ill-motivated. (For more on all this, see this article of mine on "harassment" prosecutions and stop-talking orders, including the section on speech on matters of private concern.)
A hearing on the defendants' motion for reconsideration is scheduled for tomorrow.