The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Several unpublished decisions had already allowed this, but this one is binding precedent; it's TT v. KL, decided yesterday (written by Justice Jane Markey and joined by Justices Mark Boonstra and Karen Fort Hood):
We thus choose to apply the modern trend and conclude that when a respondent
challenges a request for a PPO [personal protective order] on the basis that the PPO would prohibit constitutionally protected speech and the petitioner counters that the posted messages are defamatory, the petitioner need not show economic injury.
Consistent with the modern trend, the trier of fact must determine that the statements or posts were definitively false. The trial court here did so, and its ruling was supported by the evidence.
But to also be consistent with the modern trend, the PPO needs to be specifically limited to the adjudicated speech. In this case, the amended PPO prohibited respondent "from posting defamatory statements about [p]etitioner on social media and/or from publishing such statements elsewhere." This language is much too broad …. The trial court should have amended the PPO to provide that, absent petitioner's consent, respondent is prohibited from posting online messages which [make the specific factual assertion that had been adjudicated to be false] ….
This logic should equally apply to ordinary libel lawsuits that aren't funneled through the personal protective order statute. (Thanks to Michael F. Smith for the pointer.)