The Volokh Conspiracy

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Free Speech

California Judge Orders Removal of Reddit Criticism of Scientist/Consultant Who Publicly Criticized English Lucy Letby Murder Trial


The order: Sarrita Adams runs Science On Trial, Inc., which "provides forensic consultation services across the United States and the United Kingdom." Adams, who is a "University of Cambridge educated translational scientist," drew public attention by publicly criticizing the evidence in the 2023 English trial of nurse Lucy Letby, who was convicted of murdering seven infants. Her claims were mentioned in, among other publications, The Times (London), the New York Post, and most recently The New Yorker.

Her criticism, however, itself drew criticism, including on Reddit's r/scienceontrial ("This community exists to fact check claims about Science on Trial, its creator Sarrita Adams, and various statements that can be credited to her."). The main poster there is the pseudonymous Reddit user MrJusticeGossipGirl, apparently a reference to Mr. Justice Goss, the judge in the Letby trial. The posts generally criticize Adams' credentials, views on the Letby trial, responses to critics, and more. (There's also a reddit r/sarritaadams, which points the reader to r/scienceontrial.)

But on June 7, San Francisco County Superior Court Maria Evangelista issued a temporary harassment restraining order (Adams v. Gulley, PDF pp. 42-47) ordering defendant Gulley—who appears to be MrJusticeGossipGirl—

Do not make any social media posts about or impersonating plaintiff and her company Science on Trial on any public or social media platform. All harassing posts shall be removed.

This was done based on a restraining order request filed June 6; it appears that Gulley wasn't given an opportunity to appear in court to oppose the order (this is known in this context as an "ex parte" proceeding). The order is effective immediately, and until July 2, when the permanent restraining order hearing will take place.

The law: This injunction, I think, is clearly unconstitutional, and is an example of a broader trend in which some California trial courts have used the harassment restraining order procedure system as an end run around the protections offered speakers in libel lawsuits. (See, e.g., Curcio v. Pels.) This case offers an extreme version of the problem, because it deals with such an injunction related to a matter of substantial public debate, and criticism of someone who has voluntarily involved herself in debate about an important court case—and is offering herself up as a consultant for other court cases (including to district attorneys).

[1.] To begin with, the injunction is unconstitutionally overbroad, in banning all social media posts by Gulley about Adams. As California law recognizes, such injunctions that are "not limited to statements which the court has judicially determined to be harassing and defamatory" are unconstitutional. (Parisi v. Mazzaferro (Cal. Ct. App. 2016), disapproved of as to other matters, Conservatorship of O.B. (Cal. 2020).)

Indeed, though the petition labels Gulley's behavior "stalking" and "harassment," the heart of the objection appears to be that Gulley is allegedly defaming Adams. The petition, for instance, argues that Gulley "has established a subreddit page where she routinely seeks to defame me … and smears my name"; that she has "lost a significant amount of business and the ongoing abuse is harming [her] reputation"; that Gulley has "set out to persistently smear, and defame Dr. Adams"; and that Gulley has made "unfounded allegations" "portray Dr. Adams in a deliberately negative light, for the purposes of harming her reputation." But, again, this can at most lead to an injunction barring specific statements found to be defamatory (and even that not until after a full judicial process, see below)—not an injunction barring all future speech about Adams.

Nor does the analysis change because of Gulley allegedly "impersonating" Adams. That allegation seems to simply reflect the fact that Gulley's subreddits are called "scienceontrial" and "sarritaadams"—but the subreddits in context are clearly aimed at criticizing Adams and Science On Trial, rather than being from Adams or Science On Trial. Such use of businesses' or people's names for obvious criticism is generally seen as legally permissible, see, e.g., Lamparello v. Falwell (4th Cir. 2005).

The petition also alleges that Gulley had "contact[ed] the business making frivolous inquiries and accusations," which apparently consisted of posts (allegedly under several pseudonyms) on the discussion forums that were then hosted on Adams' site (see PDF p. 9 and exhibit E). But such speech in public spaces created by the petitioner remains constitutionally protected—and even if it could be barred, that would only justify a narrow injunction, not the broad ban on "social media posts about" Adams or Science On Trial.

The petition alleges "threatening conduct" (PDF p. 10), but that too is part of the arguments about alleged defamation: "Ms. Gulley engaged in threatening conduct, by clearly stating that the creation of her subreddit exists for the sole purpose of damaging Dr. Adams' reputation. Ms. Gulley has repeatedly that she will continue to maintain her stalking and harassment until she stops Dr. Adams from running Science on Trial, Inc." The petition quotes, as support, this Tweet by Gulley: "It's true, I have said that I will set r/scienceontrial to private when Science on Trial the company ceases to exist. However, it is an archive of Sarrita's own words. So if she finds it harassing, that is her own fault." Such speech likewise can't justify the injunction issued by the court.

Nor does it matter that the temporary injunction is set to expire July 2: The First Amendment constraint on speech-restrictive injunctions "is not reduced by the temporary nature of a restraint."

[2.] The injunction is also procedurally invalid, because it was entered prior to a final determination on the merits whether Gulley's speech is defamatory or otherwise constitutionally unprotected. As Evans v. Evans (Cal. Ct. App. 2008) held, "Because there has been no trial and no determination on the merits that any statement made by [defendant] was defamatory, the court cannot prohibit her from making statements characterized only as 'false and defamatory.'" (See also Balboa Village Island Inn v. Lemen (Cal. 2007).) It is even clearer that an injunction that bans all social media statements, and not just defamatory ones, is invalid.

Likewise, the requirement that Gulley remove "harassing" posts is similarly invalid, because it doesn't identify just which of Gulley's many statements "the court has judicially determined to be harassing."

[3.] Indeed, the injunction is doubly procedurally invalid because it improperly restricts speech before any adversary hearing (even a pretrial one) at which both sides can explain their positions. To quote Carroll v. President & Comm'rs of Princess Anne (1968) (a case involving a restraining order issued against a demonstration, but the logic applies at least as much to online posts),

The value of a judicial proceeding … is substantially diluted where the process is ex parte, because the Court does not have available the fundamental instrument for judicial judgment: an adversary proceeding in which both parties may participate…. Judgment as to whether the facts justify the use of the drastic power of injunction necessarily turns on subtle and controversial considerations and upon a delicate assessment of the particular situation in light of legal standards which are inescapably imprecise. In the absence of evidence and argument offered by both sides and of their participation in the formulation of value judgments, there is insufficient assurance of the balanced analysis and careful conclusions which are essential in the area of First Amendment adjudication.

[4.] The injunction also appears to be unjustified under the California harassment order statute, which (1) expressly excludes "[c]onstitutionally protected activity," (2) limits itself to behavior "that serves no legitimate purpose," and (3) requires "clear and convincing evidence" to support plaintiff's case. It's hard to see how the court could have, on the truncated evidence before it, reliably concluded that the criticisms of Adams—in the context of a debate on a matter of public concern—were clearly constitutionally unprotected and served no legitimate purpose.

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Naturally, I don't know who's right and who's wrong on the facts here. But I expect that a busy judge, hearing only one side of the story, and deciding based on papers filed the day before, is also unlikely to reliably determine the facts.

That is why such injunctions are supposed to be issued after a full pretrial process and trial, and not based on a one-sided temporary restraining order hearing. I don't particularly fault Adams, who appears to be representing herself, for requesting the restraining order, or for believing that the law allows such restraints. But I think the judge erred in issuing the injunction.

For those who are interested in more details on the legal question, see this article of mine on such overbroad injunctions. As I note above, the appellate caselaw condemning them is pretty solid; but trial judges often depart from it, as seems to have happened here. And the public nature of the underlying topic just highlights the First Amendment problem.

Many thanks, by the way, to the Lumen Database, through which I found the injunction, as well as the many other court orders (and some forged orders) that I've discussed in various articles, especially Shenanigans and Overbroad Injunctions, and in many blog posts. It has been a tremendously useful resource for my work.