Free Speech

Lawyer Gets Temporary Injunction Against Gripe Site That Says He's a "Fraud," "Cowardly," "Cannot Be Trusted"

But I think the First Amendment prohibits such pretrial injunctions, and in any event the injunction targets opinions and not just false factual assertions.

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I've written before (e.g., here and here) about cases holding that preliminary injunctions against libel, entered before a trial on the merits, are unconstitutional prior restraints. But I recently ran across a California trial court that did issue such an injunction, and I thought it worth noting as well. The case is Kassouni Law v. Archer, and it's being litigated now in the California Superior Court in Sacramento; here's an excerpt from the temporary restraining order:

Pending hearing on the Order to Show Cause, Defendant Darrell Archer is ordered to
immediately take down and remove his internet website timothykassouni.coni and any other website or social media forum containing the same or similar defamatory comments regarding Timothy Kassouni and Kassouni Law. The defamatory statements include descriptions of Timothy Kassouni as "very deceitful," a "Crook, Thief, Cheat," operating a "Scam," "Cannot be Trusted," a "fraud," "charged more than agreed," "failed to provide agreed services," "No Honor No Ethics," an "Overcharging Scam Artist Crook," and "cowardly." Failure to take down the website timothykassouni.com and any other website or social media forum containing the same or similar defamatory comments regarding Timothy Kassouni and Kassouni Law within 24 hours of service of this order via e-mail may be punished by contempt.

It is further ordered that the intemet website hosting company GoDaddy.com and/or any other internet service that "hosts" Defendant Darrell Archer's website timothykassouni.com {including Amazon Technologies, Inc.}, take down and remove that website within three days of receiving notice of this order ….

Here's why I think this is mistaken:

[1.] I think the California Supreme Court, applying the First Amendment, has generally rejected such preliminary injunctions (in Balboa Village Island Inn, Inc. v. Lemen (Cal. 2007), the most influential recent decision allowing permanent injunctions against libel):

In determining whether an injunction restraining defamation may be issued, … it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory…. The attempt to enjoin the initial distribution of a defamatory matter meets several barriers, the most impervious being the constitutional prohibitions against prior restraints on free speech and press…. In contrast, an injunction against continued distribution of a publication which a jury has determined to be defamatory may be more readily granted.

Other appellate courts have taken the same view, e.g., from the Kentucky Supreme Court:

[T]he speech alleged to be false and defamatory by the Respondents 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 …. [W]hile 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 from the Nebraska Supreme Court:

A jury has yet to determine whether Sullivan's allegations about Dillon and his business practices are false or misleading representations of fact. For these reasons, we conclude that the temporary restraining order, as well as the permanent injunction restraining Sullivan's speech, constitute unconstitutional prior restraints in derogation of Sullivan's right to speak.

Other appellate courts have generally taken the same view (see this post for citations to those cases, and the ones I quote above), and I think correctly. A permanent injunction that follows a jury trial on the merits (or a bench trial if a jury is waived) is generally constitutional, because there the factfinder has determined that a statement is a false, unprivileged factual claim. A preliminary injunction or a temporary restraining order based on just a finding of likelihood of success on the merits, following a cursory review of the matter, is generally unconstitutional.

[2.] Indeed, note what speech triggered the injunction here: "No Honor No Ethics," on full reflection, would I think be found to be opinion; likewise for "cowardly." Even many of the other items might well be seen as opinion, especially in the context of a gripe site (see Obsidian Finance LLC v. Cox (9th Cir. 2014)). Some of the statements might, in context, be seen as false factual assertions. (Note that Kassouni's declaration includes a verdict form from Archer's earlier fraud lawsuit against Kassouni, in which the jury found that Kassouni did not make any false representation to Archer.) But that could at most justify an order to remove those statements rather than order to take down all the material on the site.

[3.] The injunction's attempt to bind GoDaddy and Amazon is inconsistent with the California Supreme Court's decision in Hassell v. Bird (Cal. 2018). The majority in that case held that the federal 47 U.S.C. § 230 statute precludes such injunctions against Internet intermediaries (and that logic would apply not just to platforms such as Yelp, as in Hassell, but also to domain name registrars and hosting companies). And as Justice Kruger's concurrence in Hassell noted, such an injunction issued without giving GoDaddy and Amazon a chance to participate in the hearing violates their Due Process Clause rights.

Pending hearing on the Order to Show Cause, Defendant Darrell Archer is ordered to
immediately take down and remove his internet website timothykassouni.coni and any other website or social media forum containing the same or similar defamatory comments regarding Timothy Kassouni and Kassouni Law. The defamatory statements include descriptions of Timothy Kassouni as "very deceitful," a "Crook, Thief, Cheat," operating a "Scam," "Cannot be Trusted," a "fraud," "charged more than agreed," "failed to provide agreed services," "No Honor No Ethics," an "Overcharging Scam Artist Crook," and "cowardly." Failure to take down the website timothykassouni.com and any other website or social media forum containing the same or similar defamatory comments regarding Timothy Kassouni and Kassouni Law within 24 hours of service of this order via e-mail may be punished by contempt.

It is further ordered that the intemet website hosting company GoDaddy.com and/or any other internet service that "hosts" Defendant Darrell Archer's website timothykassouni.com {including Amazon Technologies, Inc.}, take down and remove that website within three days of receiving notice of this order ….

Why then did the court issue such an order? I think a lot has to do with a commonplace reality of such injunctions: The defendant doesn't have a lawyer, so there was no-one with the knowledge and incentive to bring up these arguments to the court. The defendant did apparently appear by telephone at the TRO hearing, but unsurprisingly he is no expert on Balboa Village Island Inn or Obsidian Finance or Hassell or any of the other cases I can cite. All that his later opposition to the preliminary injunction said about the First Amendment was,

This Court issued a TRO at the last hearing on the matter against Defendant and others knowing fully well that in the USA the First Amendment to our constitution guarantees each person or legal entity the "Right TO Free Speech." This Court's order was in clear violation of the US Constitution and such action is despicable.

Not much of a legal argument, but one can't really expect much of a legal argument from someone who isn't legally trained. And while I would have expected more from the judge, judges make mistakes, and are especially likely to do so when there's no-one in the courtroom who can point them in the right direction.

In any event, I thought I'd pass this along, as an example of how the legal system sometimes operates in these cases.