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Another "Just Shut Up" Order, This One Involving Anti-Vax Activists

One activist is ordered "not [to] post photographs videos, or information about [the other] to any internet site."

Kimberly McCauley is a California anti-vaccination activist, who has been in the news expressing her views. In 2015, for instance, she spoke at a rally opposing California's new strict school vaccination bill, and was later quoted in the Sacramento Bee (David Siders et al.):

When she heard at the vigil that Brown had signed the bill, Kimberly McCauley of Sacramento sat down on the steps and cried.

McCauley carried pictures of her 2-year-old daughter Ella, whom she said she stopped vaccinating after Ella had adverse reactions to three immunizations, and a letter from her pediatrician denying Ella a medical exemption.

"My daughter is the sweetest little girl, and every day she asks when she gets to go to school," McCauley said, choking back more tears. "She doesn't deserve to be discriminated against."

McCauley said [bill author Sen. Richard] Pan was "facilitating hate" against those who choose not to vaccinate their children, and she accused Brown of refusing to meet with opponents.

"He signed this quick and dirty because he wants us to go away. We're not going away," she said. "We're going to sue. I personally will take this all the way to the Supreme Court."

McCauley also mentioned her daughter in her speech and on her anti-vaccionation blog (Ella's Gone Nuts).

Matthew Phillips is a lawyer who was also involved in the anti-vaccination movement, and in the challenge to the California law. But Phillips and McCauley had a falling-out, and Phillips started posting allegations that McCauley was actually soft on the anti-vaccination movement and was actually "shillin for Merck"; part of his rhetoric was that anti-vaccination people had to save Ella from McCauley, who wasn't adequately protecting her from the evils of vaccines. McCauley then sued Phillips seeking a restraining order and claiming the following (you can also read the entire petition, with exhibits):

In the middle of May 2016 Todd Mathew Phillips began stalking and harassing me and my toddler child by posting pictures of me and my daughter on his Facebook page The Truth Hits Everybody. He seemed to be taking these images off of my private Facebook page which I am unaware of how he received because my privacy settings are very tight.

Mr Phillips would write horrible and degrading things about me as well as numerous lies and disturbing things such as that my daughter is not really my child and that I am a crisis actor which were just the beginnings of his mental instability. I asked him to take these images down numerous times to no avail.

Towards the middle of May Mr Phillips then began to post pictures of my 3 year old daughter Ella and writing disturbing things like "Don't worry baby Ella, I will save you!" I again asked them to be taken down to no avail. Around the same time Mr Phillips was served with a formal cease and desist letter from my attorney Lorraine Nesbit demanding that he remove the images of myself and my child and refrain from posting the images without my consent. The day that Mr Phillips received the cease and desist he wrote all over it "All work and no play makes Jack a dull boy" and then posted it on the internet saying he would not stop harassing me. Mr Phillips then began to go full speed ahead continuing to post pictures of my daughter saying he was "going to fight for custody" even though not only is he not her father but I have never met him. Mr Phillips also proceeded to post private medical information about both of my daughters including my youngest child's name. In one of the most disturbing posts other than saying he was going to save my child, Mr Phillips posted a photo of me and underneath it wrote "Ew Taco Bell." The reason this was most disturbing is that I had eaten Taco Bell for dinner that night. Mr Phillips mental instability was further displayed when he called a Fox 40 reporter that had recently done a story on me to tell her that I was not who I said I was and my child wasn't really mine.

The fact that he continues to post my children's names and pictures on a FB page with more than 5000 followers has now put my children at risk for kidnappers and pedophiles.

The fact that Mr Phillips has become obsessed with my children and myself is quite frightening.

The reason this is so disturbing is that I have never met this man and the only contact I ever had with him prior to his stalking and harassment was when I voiced my disapproval of his lawsuit to strike down California's SB277 mandatory vaccine law and a second time when I defended a friend he was attacking.The fact that Mr Phillips has zoned in on me and my minor child and has become so obsessed he rarely goes a day in 6 weeks without posting about me or my child, had been asked to stop, unstable behavior continues to progress by contacting people that know me and by having private information about me he should not know such as what I had for dinner and my youngest child's name and medical information would make any reasonable person fearful for their safety and the safety of their children. I am now afraid he will come to my home to "save my child." Please grant this protective order [stopping] him from coming near us, posting our pictures online or continuing his harassment.

The judge then ordered that Phillips

Not post photographs videos, or information about [McCauley] to any internet site and to remove the same from any internet site over which he has access or control.

Now I realize that some of our pro-vaccination readers might now be thinking, "a pox on both their houses." (Chickenpox, of course, not any of the much worse poxes.) But it seems to me clear that -- whatever some may think of Phillips' politics or his tactics -- his speech is being unconstitutionally restricted here, in a way that can equally easily be applied to a vast range of speakers expressing a vast range of other viewpoints.

If McCauley thinks that Phillips' allegations against her are false, she can sue for libel, and California law would authorize her to get a narrow injunction restricting libelous statements. If Phillips acquired certain information about McCauley improperly (I don't know whether or not he did), McCauley can sue him for that, and get damages or perhaps an injunction barring him from redistributing just this improperly acquired material. But a categorical prohibition barring one activist in a political movement from posting anything online -- true, false, or opinion -- about another clearly violates the First Amendment.

Yet, as I've noted before, in both a 2013 Northwestern University Law Review article and many posts over the years, such "shut up about plaintiff" injunctions have become distressingly common. Last month, my Scott & Cyan Banister First Amendment Clinic students Jenna Mersereau, Jennifer Milazzo, and Jordan Wolf and I filed an amicus brief on behalf of the Electronic Frontier Foundation, Prof. Aaron Caplan, and me, urging the California Court of Appeal to reverse the order. There are some complicated California procedural disputes that might lead the Court of Appeal to not reach the First Amendment question; but here is our First Amendment argument (you can also read Phillips' brief, McCauley's brief, and Phillips' reply):

[* * *]

Introduction

The trial court ordered Todd Phillips not to "post photographs, videos, or information about [Kimberly McCauley] to any internet site and to remove the same from any internet site over which he has access or control." But the First Amendment protects people's right to speak about others, including using others' images and "information about" them. Indeed, such speech is a staple of news reporting, opinion writing, and even casual Facebook conversations.

To be sure, there are some narrow categories of speech that can be restricted, such as libel and true threats of criminal conduct. And unwanted speech to a particular person can be restricted, which is why telephone harassment laws, for instance, are constitutional. But there is no general exception for opinions and accurate factual claims about a particular person. The injunction is thus an unconstitutional prior restraint.

This would be so even if the injunction simply suppressed purely personal criticisms; but here, the injunction is broad enough to cover a wide range of political advocacy as well, such as:

  • Phillips' writing a blog post that criticizes McCauley for her stance on vaccination laws, since any such criticism would necessarily include some "information about" McCauley.
  • Phillips' creating a Facebook page for a political campaign that advertises his commitment to anti-vaccination principles by recounting his past exchanges with McCauley.
  • Phillips' Tweeting about McCauley as an example of an anti-vaccination activist who has supposedly endangered her family through vaccination.
  • Phillips' criticizing McCauley on a Facebook page for seeking this injunction.
  • Phillips' criticizing the injunction online for preventing his speaking about McCauley, since such criticism would likewise have to include some information about McCauley.
  • Phillips' posting on an anti-vaccination message board that he is subject to this order, and explaining McCauley's rationale for getting the order, as a way of warning others about the possible consequences of their speech.

The injunction therefore violates the First Amendment, and this Court should vacate it. (Amici express no opinion on the procedural questions raised in Part IV of McCauley's brief.)

Argument

[I]. The Injunction Unconstitutionally Forbids Protected Speech About a Person That Does Not Fall Within One of the Narrow Categories of Restrictable Speech

[A.] Injunctions May Not Forbid Protected Speech About a Person Said to a Willing Listener

The U.S. Supreme Court has consistently forbidden restrictions on speech that is said to a willing audience and that falls outside a few narrow, traditionally recognized categories (such as libel or true threats). For example, in Organization for a Better Austin v. Keefe, an activist group distributed pamphlets about real estate agent Keefe to people in his neighborhood. ((1971) 402 U.S. 415, 419.) The pamphlets criticized Keefe's real estate practices and urged readers to pressure him to change those practices. The pamphlets also included Keefe's personal telephone number so that people could call him directly with their criticisms. (Id. at 417.)

A state court enjoined the distribution of the pamphlets, but the U.S. Supreme Court vacated the order on First Amendment grounds. The Court stressed that the plaintiff was not "attempting to stop the flow of information into his own household, but to the public"; the called this an "important distinction." (Id. at p. 420.) And the plaintiff's interests in privacy and avoiding offensive criticism could not justify the injunction (Id. at pp. 419-20.) "[S]o long as the means are peaceful," the Court held, "the [pamphlets] need not meet standards of acceptability." (Id. at p. 419.)

Likewise, in NAACP v. Claiborne Hardware Co., the Court held that speakers were entitled to publicly criticize even private citizens, and even when such criticism risked stimulating attacks on those citizens. ((1982) 458 U.S. 886.) In Claiborne Hardware, the petitioners declared a boycott against white businesses, and enforced this boycott by stationing observers outside white-owned stores and then announcing—on leaflets and orally in local black churches—the names of those black residents who were seen shopping at the stores. (Ibid.) The residents "'were branded as traitors to the black cause, called demeaning names, and socially ostracized for merely trading with whites.'" (Id. at p. 904 (citation omitted).)

Even though the speech was intended to be coercive, and was doubtless seen as such by many of its subjects, the Court held that the First Amendment protected such public naming and shaming: "Petitioners admittedly sought to persuade others to join the boycott through social pressure and the 'threat' of social ostracism. Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action." (Id. at pp. 909-10.) The Court therefore set aside an injunction against such speech, as well as damages liability for the speech. (Id. at pp. 893, 924 n. 67, 934.)

Like the injunctions in Keefe and Claiborne Hardware, the injunction against Phillips is unconstitutionally overbroad because it tries to stop the flow of information to the public at large. Just as the NAACP's public labeling of those who defected from the boycott as "traitors" was protected speech, so was Phillips' public accusation that McCauley was a traitor to the anti-vaccination movement. That Phillips' speech may have been critical or designed to change McCauley's behavior cannot justify the injunction, as both Keefe and Claiborne Hardware make clear. Indeed, the injunction against Phillips is even broader than the Keefe injunction because it prevents him from posting to the Internet, which has an even wider audience than leaflets.

Restrictions on unwanted speech to a person can be constitutional because speech said specifically to an unwilling listener is less valuable than other speech. This speech is unlikely to persuade or enlighten anyone, precisely because the sole listener does not want to hear it. "[N]o one has the right to press even 'good' ideas on an unwilling recipient." (Rowan v. U.S. Post Office Dep't (1970) 397 U.S. 728, 738 [upholding restrictions on direct mailings to people who had asked not to be contacted]; Eugene Volokh, One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and "Cyberstalking" (2013) 107 Nw. U. L.Rev. 731, 740-51 [arguing that unwanted speech to a person is less protected than speech about a person]; Aaron H. Caplan, Free Speech and Civil Harassment Orders (2013) 64 Hastings L.J. 781, 782 [likewise].)

But this rationale for restricting speech to an unwilling listener cannot be extended to restrictions on speech to the public, even when it may include willing listeners; Keefe makes that clear, and the Supreme Court has since reaffirmed this. For instance, in upholding a narrow restriction on certain kinds of residential picketing, the U.S. Supreme Court in Frisby v. Schultz stressed that the targeted speech was "narrowly directed at the household, not the public"—but "more generally directed means of communication" cannot be similarly banned. ((1988) 487 U.S. 474, 484, 486 (citing Keefe, supra, 402 U.S. at 420).)

Likewise, in Hill v. Colorado, the Court upheld restrictions on approaching patients of a healthcare facility within eight feet without their consent—but it did so only after both stressing that visitors to "health care facilities . . . are often in particularly vulnerable physical and emotional conditions" and "reiterating that only attempts to address unwilling listeners" were affected. ((2000) 530 U.S. 703, 717, 727.) "It is . . . important . . . to recognize the significant difference," the Court in Hill wrote, "between state restrictions on a speaker's right to address a willing audience and those that protect listeners from unwanted communication." (Id. at pp. 715-16.) The law in Hill "deal[t] only with the latter" (id.); the injunction here deals with the former, by denying Phillips the right to speak online about McCauley, even to willing readers.

Indeed, the Supreme Court has made clear that even outrageous and highly emotionally distressing speech about a person is fully protected by the First Amendment, at least so long as it is connected to matters of public concern (as the vaccination debate certainly is). In Snyder v. Phelps, the U.S. Supreme Court protected the speech of protesters who displayed signs that said "Thank God for Dead Soldiers" at the funeral of a deceased marine. ((2011) 562 U.S. 443, 456.) The Court recognized that, though the speech caused the marine's father "anguish" and "incalculable grief," the First Amendment precluded the father's tort action against the protesters for intentional infliction of emotional distress: "[I]n public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate 'breathing space' to the freedoms protected by the First Amendment." (Id. at p. 458 [citations omitted].) Likewise, Phillips' speech about McCauley is at least as constitutionally protected.

[B.] State Courts Follow the U.S. Supreme Court in Striking Down Overbroad Harassment Injunctions

Many state courts have applied Claiborne and Keefe—distinguishing between speech to a person and speech about a person—to strike down overly broad civil harassment injunctions.

For instance, in David v. Textor, the Florida Court of Appeal struck down an anti-cyberstalking injunction barring a businessman from continuing his pattern of speech sharply criticizing his rival. ((Fla.Dist.Ct.App.2016) 189 So.3d 871, 874.) The court found that the injunction was an unconstitutional "prior restraint" because it prevented "not only communications to Textor, but also communications about Textor." (Id. at p. 876 [emphasis in original].)

Similarly, in Fox v. Hamptons at Metrowest Condominium Ass'n, Inc., the Florida Court of Appeal struck down an injunction barring a condominium owner from continuing his campaign of sharp personal criticism against the condominium association and its officers, employees, and residents. ((Fla.Dist.Ct.App.2017) 223 So.3d 453.) The court expressly relied on Keefe, saying "'[n]o prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court." (Id. at p. 457 (quoting Keefe, 402 U.S. at 419).)

Likewise, in Van Liew v. Stansfield, the Massachusetts high court struck down a civil harassment order that ordered a critic of a planning board member not to mention the member's "name in any email, blog, [T]witter or any document." ((2016) 474 Mass. 31, 33-34.) The court held that even a narrower "harassment prevention order"—based in part on the critic's "calling [member Colleen Stansfield] corrupt and a liar"—was un­constitutional, and could form the basis of a malicious prosecution lawsuit by the critic against the politician. (Ibid.)

California courts have taken the same view, including in cases where the speech restriction was aimed at protecting privacy. In Evans v. Evans, the Fourth District struck down a preliminary injunction prohibiting an ex-wife and her mother from, among other things, posting "false and defamatory statements" and "confidential personal information" about her ex-husband online. ((2008) 162 Cal.App.4th 1157, 1161.) Though the ex-husband argued the speech was harassing and intruded on his privacy, the court held that the injunction was unconstitutionally overbroad. (Ibid.)

Similarly, in R.D. v. P.M. (2011) 202 Cal.App.4th 181), the Second District upheld an injunction against unwanted speech to a person, but only after stressing that the injunction did not restrain online speech about that person. The injunction in that case barred only in-person, e-mail, and telephone communications to R.D., or approaches within 100 feet of her and her family. (Id. at pp. 184-86.) The court concluded that this injunction did not violate the appellant's First Amendment rights precisely because it "does not prevent P.M. from expressing her opinions about R.D. in any one of many different ways; she is merely prohibited from expressing her message in close proximity to R.D. and her family." (Id. at p. 191.) The court highlighted that the injunction was not "content-based" and left appellant open to "distributing flyers about R.D." and "posting derogatory criticisms of R.D. on Internet sites." (Ibid.) Yet the injunction issued against Phillips expressly forbids any posting of any "information" about McCauley on "any Internet site," and does so based on the content of speech. (See, e.g., Sarver v. Chartier (9th Cir. 2016) 813 F.3d 891, 903 (concluding that a restriction on speech that uses information about a person for the speaker's advantage and against the subject's consent "clearly restricts speech based upon its content").)

Indeed, these precedents fit well with the California Supreme Court's reasoning in Balboa Island Village Inn, Inc. v. Lemen, which held that an injunction may only cover speech that has been previously determined to fall within one of the narrow categories of restrictable speech, such as defamation. In Balboa, the injunction barred the defendant from, among other things, making various accusations about the Balboa Island Inn and its personnel (such as that the inn was a whorehouse, that it served tainted food, and that the plaintiff owner encouraged lesbianism). ((2007) 40 Cal.4th 1141, 1162.)

The Court upheld only those parts of the injunction limited to forbidding proven libel: "Such an injunction, issued only following a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression." (Id. at 1156.) And the Court struck down those parts of the injunction that more broadly banned speech to Inn employees, some of whom might have been willing listeners. (Id. at 1161.) The injunction against McCauley is invalid under Balboa Inn because Phillips' words were not found to be defamatory, or covered by any of the other First Amendment categories of restrictable speech.

These careful distinctions drawn in Balboa, with a stress that the injunction must be "issued only following a determination at trial that the enjoined statements are defamatory," would be pointless if a court could just categorically ban all speech by a person that conveys any "information" about another speaker—entirely without regard to whether the information has been determined at trial to be defamatory. Indeed, upholding the injunction in this case would thus allow an end-run around Keefe, Balboa Inn, and other precedents that protect criticism for suppression. Nor does § 527.6 call for such a result: it carefully describes what should be included in an order, § 527.6(b)(6), and a ban on all "photographs, videos, or information about" a plaintiff is not listed, likely because, given Keefe, Balboa Inn, and similar cases, such a ban is unconstitutional.

Unsurprisingly, no California precedent authorizes injunctions as broad as the one in this case, at least when the injunctions are broad enough to cover speech related to matters of public concern. The injunction in In re Marriage of Evilsizor & Sweeney for instance, was limited to Sweeney's disseminating material on matters of purely private concern that he had downloaded from his ex-wife's phone. (2015) 237 Cal.App.4th 1416, 1428. Here, the injunction covers all "information," including in the context of a debate on a matter of public concern—the safety of vaccination, and hence the credibility of anti-vaccination activists—and including information derived from legitimate sources.

In Phillips v. Campbell, the Second District did say that, "[i]f the issue were properly before us, we would reject [Campbell's First Amendment] argument" challenging an order barring "post[ing] photographs, videos, or information about [Phillips] to any internet site." ((2016) 2 Cal.App.5th 844, 853 (internal quotation marks and citation omitted).) But that case arose in a very different context: the breakup of a dating relationship, with nothing to suggest that the photographs or information had anything to do with any political debate or any other issue of public concern. Moreover, Campbell had "forfeited the issue because he has failed to present meaningful legal and factual analysis, with supporting citations to pertinent authority and the record, on why his first amendment rights were violated" (id.); the court's brief substantive response to the argument was thus dictum. And it was indeed dictum offered without the benefit of careful adversarial argument in that case: Defendant Campbell, who was acting pro se in that case, cited no First Amendment precedents in his briefs [citations omitted -EV].

McCauley claims that the injunction against Phillips "was as narrow, or even more so, than those approved by" Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436, Huntington Life Sciences v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, and Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121. (McCauley's Br. 32.) But each of those cases simply illustrates how overbroad the injunction against Phillips is.

[1.] Kingsley upheld a statute that authorized injunctions against distributing material found by a court to be obscene (coupled with the possibility of a pre-trial injunction lasting for a few days). In its closing paragraph, the majority opinion stressed that the statute "is concerned solely with obscenity and . . . studiously withholds restraint upon matters not already published and not yet found to be offensive" (meaning, in this context, obscene). (Id. at p. 445.) The injunction against Phillips is not concerned solely with libel or any other category of unprotected speech, but restrains all future speech about McCauley, libelous or otherwise.

Indeed, the injunction against Phillips is precisely the sort of speech restriction that Kingsley condemned. Kingsley described the law struck down in Near v. Minnesota ex rel. Olson (1931) 283 U.S. 697, as allowing "courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive," which was " '. . . of the essence of censorship.' " (354 U.S. at 445 (quoting Near, 283 U.S. at 713)). "This was enough to condemn the statute [in Near]." (Id.) The injunction against Phillips likewise enjoins the dissemination of future speech by Phillips because his past speech had been found offensive.

[2.] Huntingdon actually held that the injunction in that case was unconstitutionally overbroad. The injunction barred defendants from "posting or maintaining on any Web site any information regarding" Huntingdon employees or family members (id. at pp. 550, 551-52); the Fourth District held that this went too far, because defendants had to remain free to say various things about Huntingdon employees, such as noting if those employees are ever convicted of animal cruelty, or republishing news stories that mention Huntingdon employees. And even the narrower restriction that Huntingdon authorized was justified only because defendants were found to have published "credible threat[s] of violence" against Huntingdon employees. (Id. at p. 544.) Here, the injunction bars publication of all "information" about McCauley, with no exception, and with no finding of "credible threat[s] of violence."

[3.] The injunction in Aguilar banned only the repeated use of "derogatory racial or ethnic epithets" said to or about Hispanic coworkers. (21 Cal.4th at 128.) The injunction against Phillips bars all online speech conveying any "information" about McCauley, not limited to epithets.

Moreover, Justice Werdegar's concurrence in the judgment in Aguilar—which provided the necessary fourth vote for the result—stressed that the reasoning of Aguilar was limited to "modest time and place restrictions" (id. at p. 169 (conc. opn. of Werdegar, J.)) focused on speech in the special context of the workplace, where employees constitute a "captive audience" (id. at pp. 159-61, 169). The concurrence expressly said that the injunction was constitutional "if sufficiently narrowed on remand to apply to the workplace only." (Id. at p. 166.) The injunction against Phillips is of course not limited to workplace speech.

[II.] The Injunction Is Not Justified by Phillips' Mention of McCauley's Daughter

Speech does not lose its First Amendment protection because it is about a minor. Sexually themed photographs of minors can be banned as child pornography. (Ferber v. New York (1982) 458 U.S. 747.) Likewise, some sexually themed speech to a minor may be forbidden as obscene as to minors. (Ginsberg v. New York (1968) 390 U.S. 629, 673.) But the U.S. Supreme Court has rejected attempts to expand these narrow exceptions beyond the context of sexual depictions. (See Brown v. Entm't Merchants Ass'n (2011) 564 U.S. 786, 793 [expressly refusing to extend the obscene-as-to-minors exception to cover nonsexual depictions of violence].) Speech about minors continues to be protected; for instance, the U.S. Supreme Court has rejected prohibitions on publishing the names of minors involved in juvenile court proceedings. (See Oklahoma Publishing Co. v. Oklahoma County District Court (1977) 430 U.S. 308; Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97.)

Indeed, state courts have struck down even those laws that are limited to speech intended to "harass" or "torment" minors. The New York high court held an ordinance that banned cyberbullying "with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person" was unconstitutional, even if the ordinance were read as limited to minors. (People v. Marquan M. (2014) 24 N.Y.3d 1, 10-11.) "[T]he First Amendment protects annoying and embarrassing speech, even if a child may be exposed to it." (Id. at p. 11.)

Likewise, the North Carolina Supreme Court recently struck down a ban on speech that intentionally "torment[s]" a minor, even though the ban was limited to speech that reveals "private, personal, or sexual information pertaining to a minor." (State v. Bishop (2016) 368 N.C. 869, 872.) "[H]owever laudable the State's interest in protecting minors from the dangers of online bullying may be, North Carolina's cyberbullying statute 'create[s] a criminal prohibition of alarming breadth,'" which was unconstitutional. (Id. at pp. 879-80 (citation omitted).)

The injunction in this case is even more extreme than these criminal prohibitions. The injunction is not limited to speech about minors. It is not limited to speech that conveyed a minor's "private, personal, or sexual information." It is not limited to speech intended to "harass," "torment," and the like. And, being an injunction, it is a prior restraint on speech, "the most serious and the least tolerable infringement on First Amendment rights." (Evans, 162 Cal.App.4th at 1166-67.) Given that narrower criminal prohibitions limited to speech about minors were found to be unconstitutionally overbroad, this injunction is certainly invalid.

Conclusion

The injunction in this case bars Phillips from talking about McCauley, his political adversary, in the context of a heated debate on a public matter. It limits his ability to publicly explain his disagreement with her. It limits his ability to argue that she ought not be trusted. Indeed, it even limits his ability to condemn the injunction itself and her role in asking for this injunction.

Speech can be restricted when it is threatening, defamatory, or fits within any other narrow category of unprotected speech. Speech to an unwilling listener can also be restricted. But this injunction goes far beyond that, restricting a wide range of speech about a person. That is inconsistent with U.S. Supreme Court precedent, California precedent, and many considered decisions from other courts. The injunction should therefore be vacated.

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  • great Unknown||

    Do something about it, then. And about the same Judge, immune to all sanctions, doing it again and again.

  • Eugene Volokh||

    Well, I'm trying -- I filed an amicus brief in the case, I've filed briefs in probably about ten others over the years, all involving variations on the same issue, I wrote a law review article on the subject, and I've blogged extensively on it. What else did you have in mind?

  • MonitorsMost||

    If I remember right, there are three Ninth Circuit California seats with no butts in them...

  • Quixote||

    Let us hope Eugene will be appointed to one of these vacancies. There, he could enforce California's anti-impersonation laws and help us conceal from the public the fact that writing under another's name for purposes of polemical controversy (as in all those tweets sent out under the "names" of university presidents around the country) is also a "staple of opinion writing," as he puts it in his article above.

    Moreover, he could elucidate the difference between "restricting" libel, as he puts it, and actually criminalizing it (if there is any such difference); and he could explain why libel should be punished by jail but parody not punished at all, even though parody can be equally harmful to the reputations of distinguished members of our society.

    In this regard, let us hope that everyone here will join our lower Manhattan colleagues in protesting—naturally with discretion, but also with sufficient vehemence to make their voices heard—the shocking refusal of an ill-informed judge to jail our nation's leading criminal "satirist," despite Eugene's eloquent efforts furthering that goal. See the documentation at:

    https://raphaelgolbtrial.wordpress.com/

  • great Unknown||

    I appreciate your efforts, but they are typical attempts at "after the cow has escaped" corrections. Sadly, regardless of how many of these injunctions are overturned, there is nothing to prevent the same judges from issuing the same kind of injunction again.

    Perhaps a higher court would take it upon itself to sanction lower judges for this kind of behavior.

    Or [I can dream, can't I] adopt a loser pays system.

  • Procyon Mustelid||

    Re: poxes for anti-vaccers, wish cow/cat pox upon them. That's generally harmless to humans and imparts immunity to smallpox. A vaccine, you might call it.

  • James Pollock||

    The thing is, anti-vaxers don't just put their own kids at risk. There are people who cannot get vaccinated for various good and true reasons. This isn't a problem, if the people around them don't carry the disease because they're vaccinated. But if you have a couple of people in the mix who AREN'T immune, and DO carry the disease, then inability (as opposed to unwillingness) to vaccinate becomes troublesome.

    So, no, I DON'T wish a "generally harmless" pox on them. Ideally, they'll run into a pox that causes enough misery to cause them to re-evaluate their position (and advocacy) against routine vaccinations.

    As an analogy, you can wish that people who choose to drive while intoxicated make it home safely, without harming themselves or others. But you also might choose to wish that they run into a solid object causing sufficient automobile damages to make them let somebody else (sober) drive next time, and the time after that.

  • MatthewSlyfield||

    In point of fact, the original vaccine for small pox was live cow pox. I don't know if the modern smallpox vaccine uses cow pox.

  • Procyon Mustelid||

    That's what I was referring to, Matthew, but perhaps too slyly.

  • jdgalt1||

    The harms alleged here by McCauley are not libel but harassment and stalking. EV, are you asserting that libel is the only proper grounds for a court to order someone silenced?

    I would think harassment and stalking are proper cause, at least to stop that person from posting information that would allow any third party to identify and/or find the physical location of the plaintiff. Granted that stalking and harassment may be only accusations at this point, waiting until after a conviction to grant an injunction would effectively destroy whatever protections that an injunction now can give.

  • Eugene Volokh||

    There is a defamation exception to the First Amendment -- but the Supreme Court has never identified any such exception for "harassment" or "stalking" (or upheld such laws on a theory that they are narrowly tailored to a compelling government interest). Nor are those terms narrow and precise enough to warrant being upheld, it seems to me.

    Your more specific proposals, for restrictions on "posting information that would allow any third party to identify and/or find the physical location of the plaintiff," aren't good fits for the terms "harassment" or "stalking"; all the "harassment" and "stalking" laws that I know of are both much broader in some respects and much narrower in other respects than your proposals. (Of course, they are also not good fits for the injunction in this case, which goes far beyond that.) But I'd be glad to discuss them on their own terms.

    In particular, if I post a photograph of someone -- something newspapers and TV stations, for instance, often do -- that would allow third parties to identify the person. Likewise, if I report that someone works somewhere, or is expected to speak at some event, that would help people find the person's physical location. Would that speech be restrictable under your theory? If that's not your plan, exactly what restriction are you proposing?

  • jdgalt1||

    I'm suggesting that a plaintiff who has shown enough danger to herself to get a "stay away" order, ought to be entitled to have her identity, address, and other possible leads to contact her made secret information. Indeed, I'd love to see the law presume that these data about any person are his or her property.

  • Eugene Volokh||

    Can you flesh that out for me, please?

    1. Is your proposal limited to people who have "shown enough danger to [themselves]" (as in your first sentence) or to "any person" (as in your second sentence)? That's the big difference between the specific-danger theory and the property theory.

    2. What do you mean by "identity ... and other possible leads to contact" a person? A person's name, photograph, and employer name are all aspects of the person's "identity" and "other possible leads to contact" the person. If those are your property, then you can stop people from posting them, right?

    3. Now maybe the analysis might be different with restrictions on home addresses. Even those restrictions have generally been struck down; but your comments suggest you have much bigger fish to fry than that.

    So, again, I think it would be very helpful to discuss all this -- but we'd first need to have a more precise proposal on the table, I think.

  • James Pollock||

    There is another (Constitutional) aspect to this dispute, which has gone un-commented upon.

    Copyright. To reproduce a photograph requires, generally, permission of the copyright-holder on that photograph (unless it has fallen into public domain) and permission to use the likeness (with a goodly slough of exceptions) of the person depicted.

    The right to privacy has been inferred from the Constitution, but... the methods of invading privacy have progressed quite a bit since 1790-91. The Founders firmly established limits on invading privacy via the methods they were aware of (quartering troops, search and seizure by agents of the sovereign) but photography hadn't been invented yet, much less cyberstalking. I think it is reasonable to give the unenumerated privacy right nearly co-equal standing with the enumerated rights, if not straight-up co-equal. (Though, of course, you are absolutely right that working out exactly what this looks like in actual practice is going to take a LOT of effort.)

    The "shut up about plaintiff" remedy fails your Constitutional sense. But it sometimes passes my equitable sense.

  • scribe||

    If the use of the photos he grabbed off her Facebook site is as egregious as she claims, she should (a) take them down and (b) sue him for copyright infringement, assuming, of course, that she took the photos herself and therefore owns the copyright in them. While one use of the photos might be considered a fair use, I see her complaint as being about repeated use of them and that in defiance of a cease and desist letter from counsel. Some injunctive relief on the photos is available that way.
    I'm not fluent enough in things like the DMCA, but I'd bet a decent IP lawyer could find something there.
    As to the written text - as opposed to the photos - I think the professor's analysis is quite correct. Problem is, when other law professors (like that guy at USC) are positing the kind of anti-1A crap they posit in the screed about speakers they don't like, judges are persuaded away from 1A liberty, into suppression.
    I'll have more to say about that professor in the comments there; none of it will be favorable.

  • Eidde||

    It sounds like McCauley is an example of the kind of poor plaintiff for whom an anti-defamation injunction would be suitable, according to the brief you're drafting in another case.

    Would there be a problem having a judge ban this defendant from defaming McCauley, subject to contempt sanctions, with any contempt trial being held by a jury which has the power to decide the question of whether there's been defamation? This is, I think, your position.

    But wouldn't it be cleaner to just say that anti-defamation/stalking/etc injunctions should not embody any prior restraints, as in no orders to refrain from speech or publication - subject to suits for damages if he defames her or posts illegally-accessed images, etc?

  • FlameCCT||

    I'm also wondering about Phillips use of confidential information gained from having McCauley as a prior client.

  • Eugene Volokh||

    I don't think Phillips ever represented McCauley (McCauley's brief doesn't argue that). McCauley may have donated some money to Phillips' lawsuit on behalf of other vaccine opponents (I think there's some controversy about that), but that's about it, to my knowledge.

  • PublicNameNotInUse||

    It's actually "A plague o' both your houses!"

  • Bob from Ohio||

    The order seems reasonably narrow to me. Its not a matter of any public importance to let a slightly deranged person continue to annoy a very, very minor semi-public figure.

  • FlameCCT||

    I have a simple question; if Phillips was her lawyer, how is he able to openly disclose information about his past client without violating the law?

  • James Pollock||

    Well, the confidentiality of client and lawyer doesn't flatly apply to everything, just things told in confidence. Second, one of the "outs" to the privilege is when the former client and lawyer are now facing each other in a lawsuit, such as, say, the kind used to collect unpaid legal fees. (Anyone surprised that legal ethics are suspended a bit when the lawyer doesn't get paid?)

  • Eugene Volokh||

    Again, I don't think he was (and McCauley's brief doesn't make that argument).

  • renreok||

    So if Phillips loses on the procedural argument, what happens if he violates the restraining order with an otherwise constitutional use of speech (say he posts a general blog post discussing the unfairness of the case and mentions her by name and includes a pic he has the rights to)? Can he defend himself by claiming it is unconstitutional? Or does missing an appeal deadline forever forfeit his first amendment rights related to this topic?

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