Free Speech

#ShutUp #RightNow: Speech Restriction Quickly Imposed on Woman Who Accused Ex-Boyfriend of Being a Stalker

A Texas judge issued the temporary restraining order before any trial on the merits, and apparently without the ex-girlfriend even showing up -- and it seems inconsistent with Texas law and likely the First Amendment/

|The Volokh Conspiracy |

Brandon Davis is apparently a neurosurgeon in Florida, and also "owns a modeling and media company called Vybelle Fashion Agency." He briefly dated Danielle Ellis, "an aspiring model and fashion designer." (Quotes, unless otherwise noted, are from the court order, which is based on a proposed order submitted by Davis.)

After they broke up, Ellis publicly posted social media messages saying that Davis was "hacking" and "stalking" her, and that she had filed a police report against Davis. Davis denies hacking or stalking her, and states that a records search in Palm Beach County (where Davis lives) reveals no such police report. Davis also alleges that Ellis "arriv[ed] unannounced at [Davis's] residence …, to be stopped by the building security" and "sen[t] threatening text messages to Petitioner."

So Davis went to court (in Texas, where Ellis had apparently moved), and sued her for libel. "'Hell hath no fury like a woman scorned.' This statement encapsulates Defendant Ellis to a 'T,'" reads the opening line of the "Nature of the Case" portion of Davis's petition (filed by Elizabeth C. Brandon (Reed Smith LLP)).

The complaint was filed September 9, and then on September 12 Davis got a temporary restraining order, in which Judge Bridgett Whitmore forbade Ellis from (among other things),

  1. "Continuing to publicly post any defamatory statements bout Petitioner."
  2. "Refusing to remove the defamatory statements against Petitioner from any and all of her social media public posts."
  3. "Refusing to remove the personally-identifiable information about Petitioner—which includes Petitioner's name, work address, home address, phone number, photograph, company affiliation, and various social media hashtags associated with Petitioner—from any and all of her social media public posts."

As best I can tell from the court record, Ellis was not served with any of the documents until 6:30 pm the day after the order was issued (September 13). She thus had no opportunity to appear in court before her speech was ordered stopped and taken down. (I e-mailed Davis's lawyers but haven't heard back from them.)

Now I can't speak about who's telling the truth on the facts; but it seems to me that the court erred badly in issuing the order.

After certain statements are found to be libelous at trial, injunctions barring repeating the statements are likely allowed in most states; there's controversy about that, but that's the emerging modern view in recent court decisions. (I think the injunctions are constitutional only if they include particular procedural protections, but that's just my view, and I'll set it aside here.) Yet, even recognizing that most courts allow some such post-trial anti-libel injunctions, the injunction here is impermissible.

A. The injunction is unconstitutionally overbroad. Injunctions against defamatory statements, when they are allowed, are justified by the libel exception to the First Amendment. But this injunction goes beyond just requiring Ellis to remove libels: It also requires her to remove any "personally-identifiable information" about Davis, including his name. There is no First Amendment exception justifying any restriction that is so broad.

B. The injunction was apparently issued without notice to Ellis. Injunctions against speech, when they are allowed, are supposed to be issued following adversary hearings where both sides can present their arguments. In the Supreme Court's words in Carroll v. President & Comm'rs of Princess Anne (1968),

There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.

C. Pretrial anti-libel injunctions have generally been rejected, even by courts that allow such injunctions after trial. I give lots of examples here, but here's a sample of the reasoning, from the Kentucky Supreme Court:

[T]he speech alleged to be false and defamatory … has not been finally adjudicated to be, in fact, false. Only upon such a determination could 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.

And the Texas Supreme Court has expressly said (even when it allowed some post-trial anti-libel injunctions) that, "We have squarely held that a temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint."

4. Beyond that, in Texas, anti-libel injunctions can only order the removal of existing posts found to be defamatory; they can't ban the posting of future defamation. That's a minority view among recent court decisions, but it is the Texas Supreme Court's view, see Kinney v. Barnes (Tex. 2014):

Accordingly, we hold that the Texas Constitution does not permit injunctions against future speech following an adjudication of defamation. Trial courts are simply not equipped to comport with the constitutional requirement not to chill protected speech in an attempt to effectively enjoin defamation.

(And recall, see point 3 above, that the prohibition is even clearer when it comes to an injunction preceding a final adjudication of defamation, for instance a temporary restraining order.)

And indeed this is part of the reason why courts aren't supposed to restrict speech when the speaker hasn't had a chance to participate in the process (see item 2 above). Judges can make mistakes; indeed, they sometimes might not know their own state supreme court's precedents on the question. But such mistakes are especially likely when they hear only the plaintiff's side of the case.

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  1. So did the Reed Smith lawyer hide from the judge that there was a Texas Supreme Court directly on point barring the relief she sought? Shouldn’t that be sanctionable? Especially in ex parte proceedings, judges rely on attorneys to play it straight and give both sides, and to present the actual law. From this blog post at least, that may not have been done here. (Hopefully she’ll return your call or email and explain if any of your post is factually or legally incorrect.)

  2. I’m confused as to how you can’t confirm who is lying. She claims she filed a police report. He says she didn’t. Should be easy to confirm. If she’d lie about that then it makes you wonder what else she lied about.

    1. How exactly do you expect Prof. Volokh to confirm whether or not she’s filed a police report? Can he limit his inquiry to every police department in Texas and Florida, or does he need to expand his search to the entire country?

  3. Counterpoint: The court is saying stop talking about this person publicly because you keep telling provable lies about them, and he has evidence proving you keep lying.

    She’s perfectly willing to express her free speech and violate the court order. In fact, I’d be surprised if she doesn’t.

    1. “provable” is not enough. It has to be “proven” and “proven” has not yet been demonstrated in a court following the proper adversarial procedures. Until you get to “proven” evidence, the injunction is unconstitutional.

  4. Your link to the petition actually goes to the proposed order.

    1. Sorry, fixed, thanks!

  5. Do you happen to know the process by which the order was obtained? My recollection of California law, e.g., is that one would need to file a declaration about all steps taken to serve, and why the order was needed before service. Similar requirements in Utah federal court and state court. Which puts the lawyer (in theory) on the hook for sanctions. In addition to the unconstitutional nature of the order.

    1. JBogart: I had looked for such a declaration, but I didn’t see it in the case file (which is available online). It’s possible that Texas doesn’t require this for the TRO, or that it allows any such explanation for lack of service to be given orally at the hearing; I’m not sure.

  6. To quote one of the underlying fundamentals of law [along with others like, “Guns = authority”], “So, whatcha gonna do about it, huh?”

  7. An application for a TRO in Texas has to be verified. The order granting the application is supposed to set an evidentiary hearing within 15 days. The Responennt can move to dissolve the TRO and request an earlier hearing.

  8. It looks like this TROset t he hearing for seven days

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