Another "Stop Talking About Him" Court Order, This One Obtained by Convicted Securities Fraudster

Tracy Zona was ordered to "remove forthwith, all references to petitioner the family and legal representatives and make no further posting in re of any kind"; she was then ordered to spend five days in jail unless she removed the posts (which she did).

Tracy Zona has been blogging about her ex-husband Richard Zona and his business associate, Howard Miller Appel. Some of the posts focused on what appears to be Appel's criminal past -- he has "two prior securities-fraud related convictions," and has just been charged again by the Justice Department (and sued by the SEC). Some claimed that Appel mistreated his family members and was trying to kill her (though Zona has since claimed this last accusation was hyperbole).

But instead of suing Zona for libel, Appel went to court and got a civil harassment restraining order that categorically forbade Zona from posting anything about him, his family, and his lawyers, as well as required her to remove all her past posts about him:

11. Other Orders:

Remove forthwith all references to petitioner the family and legal representatives and make no further posting in re of any kind.

(The "in re" presumably means "regarding the above.") Nothing in this order is limited to defamatory speech, much less speech found defamatory after a full trial (the sort of speech that the California Supreme Court has said can indeed be enjoined). Zona can no longer post true statements about Appel's criminal past, or about the new charges against him; nor can she post any opinions about him.

And the court is quite serious about this; when Zona failed to take down the posts, she was held in contempt, and avoided jail only because she finally complied:

A. Respondent [Zona] has been found to be in contempt of the Court's [earlier order]. Accordingly, Respondent is remanded to custody for five (5) days in Riverside County Jail and filed $5,000.00. However, these penalties shall be stayed provided that Respondent fully and completely comply with the [earlier restraining order] as amended for the duration of the Order. Respondent is cautioned that the Court will not hesitate to impose these penalties in response to any violation of any kind of the [order] as amended.

B. By no later than 2:30 pm [the following day], Respondent must permanently remove all social media or "blog" posts of any kind or nature which directly or indirectly name, refer to or relate to any Protected Persons [Appel, his lawyers, and their families], including but not limited to:

(i.) postings on the website www.girlonfireCA.com ,

(ii.) postings on any other websites or social media accounts owned, controlled or accessed by Respondent now or in the future, and

(iii.) the specific postings listed on the attached 9-page list of websites.

This sort of gag order is a pretty clear First Amendment violation, much like in the McCauley v. Phillips anti-vaccination activist case I blogged about. (That appeal ended up being dismissed, unfortunately, because the defendant was found to have filed the notice of appeal too late.) As readers of my blog may recall, I've been seeing a lot of these, and litigating some of them; I argued a case involving a similar order in Ohio in July, and expect to argue another in Michigan in two weeks (I just had a moot court for it here at the law school today). And some appellate courts (see Part I.B of this brief) have indeed recognized the First Amendment problems with such orders; it's unfortunate that the trial court here did not.

I'm glad at least that this order has gotten some local press coverage; here's an excerpt from the article by the Palm Desert Sun (Amy DiPierro), which gives something of a backstory:

Over the past four years, as Zona wrote [her blog], she began to question parts of her former life that had never made sense.

She had never really understood, for example, what her ex-husband did for a living. He appeared to be a serial entrepreneur -– she remembered a flower shop and a water company venture -– and it seemed like he was always starting some new business. Sometimes, she remembered him being involved in lawsuits after the businesses closed.

And if a business didn't pan out, she remembered Appel would be there to bail her ex-husband out. He had been the best man at the couple's wedding, and business records suggest he was in business with her ex, too. Incorporation records in Florida show Appel and Zona's ex-husband listed as contacts for the company Something's Bloomin, Inc., and a 1998 securities filing shows companies associated with Zona and Appel selling the same stock to the same buyer on the same day.

Around 2017, Zona plugged Appel's name into Google. What she learned startled her.

Zona saw that Appel had served prison time as a result of a securities fraud charge beginning in 2008. He had been convicted of what is colloquially called a "pump-and-dump" scheme, in which stock brokers obtain large blocks of stocks cheaply, then sell them at artificially inflated prices….

Thanks again to the Lumen Database, an invaluable research tool.

Comments

[Bored Lawyer]

The appellate courts need to smack this judge hard. Take the case and write a scathing opinion.

[great Unknown]

Wow! He'll really lose sleep over that.
What would be efficacious would be granting appellate courts the power to strip lower courts of judicial immunity. I'm not holding my breath.

[tommyboy]

This is the judicial version of "You may beat the rap, but you can't beat the ride." Clearly, this is prior restraint with an absence of due process and will get overturned if Zona spends enough money to fight it to a court with some modicum of constitutional deference.

[Liberaltarian]

Keep up the good fight for free speech! I love it when you post these stories and give the censorious asshats behind these unconstitutional speech restrictions the publicity they so richly deserve.

[Phil Fellini]

Serious question about the judges who issue orders of this type -- not only Judge Ronald Johnson but also the judge in the Macauley case and others: Do they simply not understand the First Amendment? I'm really baffled how anyone -- but especially a judge! -- could issue such a broad prior restraint.

[jdgalt1]

The important question is what remedies are available against the judge who wrote this order and who ordered Zona jailed. As long as judges who do these things are not themselves jailed, this type of outrage will continue to happen.

Immunity of any kind should not exist.

[TonyT]

[damikesc]

Given that there is an apparent turn against free speech support in law schools (hate speech seems to not be desired to be protected as heavily as in the past), we will see more of this as time goes on.

[Eric VonSalzen]

My impression (mostly from reading this blog) is that State trial court judges are surprisingly willing to issue such gag orders, particularly under statutes like anti-stalking laws. Perhaps in part this is due to ignorance (this isn't really about "free speech" it's about stalking, etc.). In part it may also be due to judicial arrogance -- trial judges are used to being the power-that-is in their courtrooms, everyone calls them "Your Honor" and stands when they walk in and out of the court, etc. But there ought to be some kind of mechanism to reprove such injudicious actions; it may differ from state to state, but it would be helpful, when a case like this occurs, if lawyers familiar with that jurisdiction could suggest where one could go to complain.