Posts Tagged ‘Prior Restraint’

Can a Court Order Someone Not to Defame You?

Temporary Restraining Order

I get many calls from victims of Internet defamation who want me to go to court and get an order to stop the defamation. In other words, they want a court order that stops someone from speaking or publishing statements that the victims deems to be defamatory. Is that possible?

Like most legal questions, the answer is, “it depends.”

California law is very clear that after a trial has determined that the statements being made are defamatory, the court can order the defendant to stop making those statements. The reason is that defamatory speech is not protected, so once it has been found to be defamatory, the court can order the defendant not to repeat the defamatory statements. Once the court has issued such an order, it can be enforced just like any other court order, with the court assessing sanctions and even jail time if the defendant refuses to comply.

By the way, most attorneys do not appear to be aware that a “gag order” is constitutionally permissible. In law school it was drummed into their heads that a court cannot order someone to speak, but they fail to realize that once a court has found that a statement is defamatory, it is no longer protected speech. I see complaint after complaint where the attorney has not requested injunctive relief, and that does not serve the client well. Without the injunction, even if the defamed party prevails on the defamation action, there will be nothing to prevent the defendant from saying the same things again, necessitating an entirely new case. As a practical matter, a defendant just having been found liable for defamation will probably not want to be sued again for the same comments, but I prefer not to leave things to chance.

So you absolutely can silence someone AFTER the court has found the speech is defamatory, but the much tougher challenge is getting a court to order a defendant to stop defaming the victim BEFORE there has been a trial. Typically, it takes at least a year to take a matter to trial, and that may be far too long for the defamation victim. A temporary injunction can be obtained in a matter of days, so that affords a much faster remedy if it is available.

But there is a problem. Read the rest of this entry »

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Aaron Morris, Attorney
Aaron Morris
Morris & Stone, LLP

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