Ex-tenant barred from saying that ex-landlord had been in the Witness Protection Program, '[r]egardless of the truth or falsity of this information'

[UPDATE: By coincidence, the very morning I blogged about this, Hartzell dropped the lawsuit (with a motion that has the very Pennsylvania of "praecipe to discontinue and end"), so the injunction will now be automatically vacated.]

Edward Cummings published that Kevin Hartzell, a real estate developer and Cummings's former landlord, had been in the federal Witness Protection Program (but was now living under his real name in his home town). A Pennsylvania trial court issued an injunction—now on appeal—ordering Cummings to stop saying that, "[r]egardless of the truth or falsity of this information." (The Legal Intelligencer (Lizzy McLellan) first wrote about the story.)

That, I think, violates the First Amendment. And it illustrates the broader trend, which I've written a law review article about: Trial courts are increasingly ordering people to stop speaking about others, even when the statements are true or are opinions, when they think the speaker is ill-motivated. (For three other such cases from the last month, see here, here and here.)

From 1997 to 2006, Cummings had been one of Hartzell's tenants, and they had their differences (related to allegedly unperformed maintenance and other things). Cummings then looked into Hartzell's past and found that Hartzell had been a mobster.

According to a 1990 Pennsylvania Crime Commission report (the Commission is a state agency), "Kevin Hartzell was an associate of Scarfo Family members and was involved in extortion; he is now in the Witness Protection Program." Hartzell, among others, was "charged with extorting … as much as $1,000 per week from drug dealers and then giving a percentage of the money to the Scarfo Family. One of the drug dealers extorted ($1,000 per week} was Frank Trachtenberg; at a meeting with [Norman] Lit and Hartzell to make his first payment, Trachtenberg refused to name his cocaine source and Hartzell slashed his forehead with a knife. In June 1988, Hartzell pled guilty and was sentenced to three years in prison."

Cummings then put up the Web sites KevinHartzell.com and KevinHartzell.net, which criticize Hartzell and post these allegations. (Cummings had had his own brush with the law, in the mid-1990s, having been convicted of possessing telecommunications instruments with the intent to get unauthorized access to telecommunications services.)

Hartzell sued Cummings for libel in the Pennsylvania Court of Common Pleas, claiming that he had never actually been an informant for any law enforcement agency. Three days after Hartzell sued, the court ordered Cummings to entirely take down Cummings's sites.

After a preliminary injunction hearing two months later, the court allowed the sites to be brought back, but with the proviso that "the websites shall not post information regarding whether Hartzell was a witness 'in the United States Federal Witness Protection Program' or that Hartzell was 'an associate of Scarfo Family members' or any knowingly false or defamatory meaning content with respect to Mr. Hartzell." The case is now on appeal, and because of that the trial court released its written opinion last month, which is how I learned of the matter. (If you read the opinion, note that in Pennsylvania Court of Common Pleas, opinions are often framed as the trial judge asking the Superior Court to affirm his ruling on appeal.)

The court's decision and reasoning are, in my view, quite troubling:

1. The court took the view that statements that someone has been in the Witness Protection Program are "not protected speech" and can be enjoined "[r]egardless of the truth or falsity of this information."

Part of the court's rationale was that "Pennsylvania law clearly provides that a court may prevent the disclosure of an individual's participation in the program in order to prevent substantial physical harm." But the law that the court cites—the Pennsylvania "right-to-know" law—has to do with what speech the government may choose not to disclose. It has nothing to do with ordering citizens not to engage in such speech. And especially when the government has, rightly or wrongly, made some information a matter of public record, the dissemination of that speech is then generally protected; see Florida Star v. B.J.F. (1989).

Another part of the court's rationale was that "the disclosure of the identities of participants in the Witness Protection Program creates a clear and present danger of grave physical harm to the individuals whose identity is disclosed. Our federal government exerts great effort in ensuring the safety and anonymity of individuals involved with the Federal Witness Protection program, as participants who are identified are immediately exposed to potential harm."

But whatever force that might (or might not) have as to disclosing the assumed name of a particular person who is currently in the federal Witness Protection Program (perhaps under the rubric of "crime-facilitating speech"), I don't see how it works as to Hartzell. If he was in the federal Witness Protection Program, and thus potentially targeted as an informant by his former mobster associates, the mobsters have learned all that by now, whether from the Pennsylvania Crime Commission report, from his testifying against his former associates (if he did so) or from his vanishing. And if it's true that he was in the program, then the very fact that he is living now under his real name in his home state seems to suggest that there is no "clear and present danger of grave physical harm" to him.

2. Another part of the court's rationale seemed to be that Cummings's motivation was improper.

[T]he testimony presented at the hearing clearly showed that Cummings was embarking upon a campaign of harassment. Under 18 Pa.C.S. § 2709, a person commits the crime of harassment when, with intent to harass, annoy, or alarm another, the person engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose, or communicates repeatedly in an anonymous manner. Pursuant to the statute, "communication" includes any oral, nonverbal, written or electronic communication without legitimate intent or purpose. The statute further defines "course of conduct" as a pattern of actions "composed of more than one act over a period of time, however short, evidencing a continuity of conduct." …

Under 18 Pa.C.S. § 2709.1 (a), stalking includes "repeatedly communicat[ing] to another person under circumstances which demonstrate or communicate either an intent to place such other person in reasonable fear of bodily injury or to cause substantial distress to another person." …

[I]f the credible evidence indicates that a defendant has intentionally and repeatedly harassed, annoyed, or alarmed an individual, the court may restrain a defendant from engaging in any such conduct or communication which constitutes harassment or stalking, at least through the pendency of the underlying case….

Cummings' conduct with regard to the operation of the two webpages constituted harassment and stalking under the Pennsylvania Crimes Code. Given that Cummings began to operate the websites after a series of disputes with Hartzell, this Court reasonably concluded that Cummings did not intend to publish information about Hartzell's past for the purposes of informing the public. Clearly, Hartzell is not a public figure and the details about his past are likely not newsworthy twenty-five years after the fact.

Rather, this Court concluded that Cummings was demonstrably upset with Hartzell and embarked on a continuous online campaign of harassment against Hartzell with the intent to cause substantial distress to Hartzell in retaliation for events that transpired during their landlord-tenant relationship. Such intent is clearly illegitimate under law.

Because Cummings' intent is not to exercise his constitutional right to disseminate information, but rather to conduct an illegal campaign of harassment, his speech in this case is not protected under law. As such, this Court's Order requiring the removal of Crime Commission report, while allowing the remainder of the website to continue, was acceptable under law.

Yet, for reasons I've discussed at length (see pp. 773-83 of this article), communication of facts about people—especially facts gotten from the public record—doesn't lose First Amendment protections because we think the speaker's motive is revenge as opposed to an "intent … to exercise his constitutional right to disseminate information." Information disseminated out of ill will remains constitutionally protected.

Nor does it make sense to say that "Cummings did not intend to publish information about Hartzell's past for the purposes of informing the public." Indeed, even if he was trying to distress Hartzell through the publication, the way he was doing that was precisely by informing the public about Hartzell's past.

3. Other parts of the opinion suggest that the court thought there was indeed "sufficient evidence that the statements published on Cummings' webpages were false and defamatory"—i.e., that the court wasn't just relying on its view that some information cannot be published "[r]egardless of [its] truth or falsity." "[P]rior to [the March 30, 2015] hearing, Hartzell provided both this Court and Cummings with an affidavit containing evidence that the contents of the 1990 Pennsylvania Crime Commission Report were false. Specifically, Hartzell furnished a document averring therein that the Commission was required to retract its statement that Hartzell was a participant in the Federal Witness Protection Program on the grounds that it was false."

But as best I can tell, this document "averring" that the Commission had to retract its statement was just Hartzell's statement that this had happened. At a May 7 hearing, Hartzell's lawyer was saying that they were still trying to find the concrete proof that the Commission had retracted its statement. ("[A]s I stand here today, Judge, I don't have anything more to offer other than the verified complaint and Mr. Hartzell's contention that there absolutely never was any sort of cooperator award…. [W]e have, through the Freedom of Information Act, asked for whatever documentation we can get, because we're trying to prove a negative here, right, from four different federal agencies as well as requesting records from Mr. Hartzell's former lawyers as well as initiating an actual lawsuit … against the state ….") I couldn't find any documents in the file that offer such proof, beyond just Hartzell's assertion. When I tried to ask the judge's chambers, via the courthouse library, I was told that the chambers didn't have such a document, and I was pointed to the case file instead. I tried to reach Hartzell's lawyers, and they didn't get back to me. And Cummings's lawyer couldn't point me to any such document, either.

So at most we have some uncertainty about whether the officially published statement from the Pennsylvania Crime Commission Report is true. But the court had no trial on the truth or falsity of the statements. There was a preliminary injunction hearing (apparently without any written motions), where the court decided that there was "a reasonable probability that [Hartzell] will prevail on the merits." Yet the Supreme Court and lower courts have generally held that preliminary injunctions against speech, based on such a "likelihood of success on the merits" standard, are unconstitutional. See, e.g., Universal Amusement Corp. v. Vance (1980); Hill v. Petrotech Resources Corp. (Ky. 2010); Auburn Police Union v. Carpenter (1st Cir. 1993).

Injunctions against libelous speech entered after a full trial—and thus a finding of actual success on the merits—may be permitted under the First Amendment, but preliminary injunctions against libels, based on just the likelihood of success on the merits, are treated as unconstitutional prior restraints.

4. On top of that, the Pennsylvania Supreme Court has held (Willing v. Mazzocone (1978)) that injunctions against libel violate the Pennsylvania Constitution, even following a full trial at which the statements are found to have been libelous. Here, there was no such full trial, so the case for unconstitutionality would be even stronger. The trial court doesn't mention Willing, though Cummings's lawyer mentioned it at one of the hearings.

5. Finally, the order also banned Cummings from stating "that Hartzell was 'an associate of Scarfo Family members.' " But nothing in the court opinion suggests that such a statement would be false; indeed, the Pennsylvania Crime Commission report describes Hartzell as having been associated with the Scarfo Family. The opinion doesn't explain why Cummings shouldn't be able to report this apparently accurate information.

So a bad decision, I think, but one that's emblematic—especially in its argument that ill-motivated speech loses First Amendment protection, regardless of its truth or falsity—of what I've been seeing a lot in lower court cases. I hope that the injunction does get reversed on appeal.