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Locked lips

The state Supreme Court must tread carefully in a case that tests prior restraint on free speech.

February 03, 2007

ON MONDAY, the California Supreme Court wrestled with a free-speech controversy that pits a Newport Beach street preacher against a restaurant she has accused of such things as serving tainted food (with a side order of child pornography) and having Mafia ties.

Anne Lemen, who is challenging a court order prohibiting her from repeating these and other libelous statements about the Balboa Island Village Inn, isn't the most sympathetic crusader for free speech. A judge found not only that she had made false allegations about the restaurant (Lemen has denied making many of the statements) but that she had accosted and videotaped patrons.

Even so, the state high court should affirm a ruling by an appeals court that the gag order entered against Lemen blurs a centuries-old distinction in the law that has well served the cause of everyone's freedom of speech.

The usual remedy in a defamation case is for the defamer to pay damages to the party whose reputation has been harmed. But the owners of the inn didn't seek damages because they thought it would be difficult to calculate the economic loss from Lemen's activities. Instead, they won a permanent injunction prohibiting Lemen from repeating libelous statements and barring her and her camera from within 25 feet of the restaurant.

The appeals court upheld the order preventing Lemen from photographing patrons but struck down the rest of the injunction on the grounds that it was a prior restraint -- a government action silencing someone ahead of time. There is a greater potential for censorship if government can silence someone before he speaks rather than having to wait to prove to a jury that a statement already made was illegal or libelous. Lemen's lawyer, Duke University law professor Erwin Chemerinsky, offers another argument against prior restraints in the libel context: They prevent someone from repeating a statement even if he later establishes that it is true.

In some areas, the law does allow orders against future speech -- such as the repetition of racial slurs by an employer who has created a hostile workplace for minorities. But prior restraints are rare in libel cases, and the U.S. Supreme Court has indicated that they should remain so.

Two years ago, the nation's highest court scrutinized a gag order imposed on a man who had lost a libel case to defense attorney Johnnie Cochran (who died before the court could rule). During oral arguments, several justices seemed troubled by the breadth of that order. The California Supreme Court should be equally vigilant about protecting free expression.

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