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.

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.

Comments

[mse326]

In all these cases where the judge orders 3rd party hosting sites to remove posts or websites I wonder how much is the judge not knowing the law and how much is the judge not reading the order before signing it. Typically when a party moves for some disposition they submit and order for the judge to sign. And small cases like this are typically handled more by a judges clerk given how much work a judge has to do and the judge just signs an order the clerk gives him/her. I worked for a judge that was good at reviewing orders before signing them but I imagine not all are especially if it comes from their clerk who they trust.

[Stephen Lathrop]

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

Keep beating that drum Professor Volokh. But as you do, at least try to notice that cases like the ones you keep citing have become far more common post-internet. Ask yourself why. Then ask yourself if that points to some need for the law to accommodate that change, before an incoming tide of public outrage forces resolution by government censorship.

Here is a hint. It has to do with the invention of cost-free, world-wide publishing, available to anyone, without prior editing. That is a new thing in the world—one which promises to imperil speech freedom a good deal more than you apparently suppose.

Look around. You will see that powerful people in government have been trial-ballooning one internet censorship scheme after another. Just as the tide of cases like this one is rising, so too is the tide of pro-censorship opinion. I suggest mere reiteration of pre-internet legal nostrums may prove insufficient. It would be wiser to think about adjusting the law with an eye to maximizing speech freedom under these new conditions.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You pretty smart fella. Everyone should pay attention.

[tkamenick]

"It would be wiser to think about adjusting the law with an eye to maximizing speech freedom"

Isn't that the exact opposite of what you've been saying over and over again? Don't you want more restrictions on speech?

[David Nieporent]

Don’t you want more restrictions on speech?

You noticed that, huh? In every context in which it comes up, he supports censorship over speech.

[Stephen Lathrop]

No, Nieporent.

Only in your crackpot interpretation, where private editing = censorship. To which I should add that I also advocate an end to the near-monopolization of the advertising market by internet giants—which is the principal cause generating today's public pressure—and providing a constituency—for real government censorship.

With a diversified and profuse online publishing ecosystem, there would be no reason to fear private editing as a threat to free expression.

[David Nieporent]

Only in your crackpot interpretation, where private editing = censorship

For the trillionth time: you argue for the government to force "private editing" — and by "private editing" you mean "blocking speech" — through threat of punitive sanctions. That is indeed censorship.

You also oppose free speech for public school students. That is indeed censorship.

You also endorse laws forbidding people from assembling in corporate form to criticize politicians.

You also take an exceedingly narrow view of fair use, arguing that the government should impose more liability on people who transform copyrighted works in a manner of which you disapprove.

Is there a single speech controversy in which you don't reflexively take the anti-free-speech side?

[Stephen Lathrop]

Nieporent, how does a private civil action give rise to punitive government sanctions? And why are we even talking about this, given that libel is not protected speech? I will tell you why. You want libel to become protected speech. That's why I call it a crackpot interpretation.

Except for one, your other points are comparably off the mark. I will not trouble myself with replies, except to acknowledge you have a reasonable argument with regard to my views on free speech in public schools. I would permit more restrictions than I think most folks would, and more than the laws seem currently to permit. I suggest there are good arguments, but once again, not ones I want to repeat now. I have made those points in previous threads.

The decision in Skokie, and a whole lot of other public square speech cases, I endorse without reservation.

We disagree quite often on speech. Maybe that is because you are a free speech Utopian. In that posture, you apparently can't see how arguments against impossibly radical speech goals might actually be founded in practical politics on behalf of protecting robust speech protections.

[David Nieporent]

Nieporent, how does a private civil action give rise to punitive government sanctions?

There is no such thing as a "private civil action." I assume you mean an action instituted by a private Individual — but a lawsuit, whether commenced by such a person or not, involves state action.

And why are we even talking about this, given that libel is not protected speech?

"It isn't censorship to ban this speech because this speech is not protected" is not a thing.

And your claim isn't even right. Seriously, it is shocking that someone who ran a newspaper doesn't even begin to grasp New York Times v. Sullivan, even after having been told about it scores of times at the VC alone.

[Stephen Lathrop]

No, tkamenick. I want no government restrictions at all on speech. But I recognize there have to be some restrictions. So I prefer that they be imposed privately—by private editors doing what they always did in the days of ink-on-paper publishing.

That said, I celebrate the expanded publishing opportunities the internet creates—because of its vastly lower cost of publication—and remain confident that its net effect can be a notable expansion of publishing opportunity, and an increased flourishing of speech freedom.

What the internet cannot long deliver is Utopia, where every person gets to publish worldwide whatever he prefers, whether it be a commercial hoax, a lying election smear, defamation, or just private animus against a neighbor. Let that happen in our democracy, and the public will recoil, and demand that government step in, which would be a catastrophe.

Nieporent and others get exercised because I believe publishing without liability for defamation is a practical impossibility. Unlike most readers here, I have been a publisher (of a smallish newspaper), and I have seen cranks and crackpots flock to weaponize publishing in the service of private animus. Of course you can see that too, just by going on the internet.

What most people are not positioned to see so vividly, is what community reaction is like when it happens. The average American would sooner do without speech freedom than be vulnerable to defamation at will. That is a problem for the internet, of course, because you can't teach the finer points of defamation law to Joe Keyboard.

That is why thoughtful attention to this new publishing situation the internet has created would be a great service which the free-speech legal community could provide to the nation. So far, the responses on this blog have been mainly of two kinds. One kind just continues to demand Utopia. The other kind haplessly reiterates the doctrines of pre-internet speech freedom, as if nothing had changed.

Several years ago, and from time-to-time afterward, I predicted in comments here that internet publishing was headed for censorship trouble. Most responses I have had were hostile denials, and continue that way still. But the predictions have proved spot on, as anyone can see who follows the election news, or pays attention to Congress.

Unfortunately, we can't have Utopia.

[Pavel Petrovich]

Sounds like normal accolades for a member of the Bar. After all, lawyers are crooks. Kassouni practices 'constitutional' law!!! What is wrong with expressing an opinion of the sleaziest profession on earth. Here is a case where a crooked lawyer conspires with a crooked judge in deprivation of constitutional rights......case dismissed!!

[The Other Bob M]

As of this post, the affected site is still up.

How do orders such as this affect sites like The Wayback Machine? Do they?

[DaivdBehar]

Most people referred from the internet are totally undesirable clients. They are people no one else wants, and who need to shop for services o the internet.

Such negative reviews are very beneficial to keeping these undesirables away from a practice.

[Bored Lawyer]

So you are saying this guy actually did the lawyer a favor? Maybe the lawyer should pay him.

Reminds me of the first firm I worked for. One partner did a lot of employment cases. When someone would come in and say, I was fired and want to sue for discrimination, we would listen and sometimes take the case. But we would then explain that under the doctrine of mitigation of damages, even if they were wrongfully fired, they could not simply sit home, but had to make efforts to find another job.

Often, the person then did just that, and ended up with an even better job with more pay than he or she was fired from! So the first job that fired them actually did them a big favor. (And generally they lost interest at that point in pressing forward with a lawsuit, since they now had little damages.)

[AmosArch]

This isn't the 90s. With everything going through g00gle and Farcebook et al independent websites are generally almost invisible. You nearly always bring more attention to them with antics like this.