SACRAMENTO — The California Supreme Court appeared to be divided Monday over whether courts may bar individuals from repeating defamatory statements instead of simply requiring them to compensate the victim monetarily.
Meeting for arguments in Sacramento, at least three justices on the seven-member court appeared to believe so-called prior restraint orders may at times be justified.
Chief Justice Ronald M. George said some people who defame may not have accessible assets and therefore would have no motivation to stop without a court order.
"Aren't there going to be some people who are judgment-proof?" he asked.
The case before the court was brought by the Balboa Island Village Inn, a restaurant and bar in Newport Beach that won a court order prohibiting a neighbor from making false and scurrilous statements about the business.
The order, which has not been enforced pending appeal, makes Anne Lemen, 58, a nurse, vulnerable to fines or jail if she tells anyone that the bar serves tainted food, has Mafia connections, produces child pornography, encourages lesbian activities, distributes illegal drugs or participates in prostitution -- all charges that a lower court found Lemen had falsely made.
Lemen, who has denied making many of the disputed statements, owns a house next to the restaurant and led a petition drive several years ago to prevent the business from obtaining an expanded entertainment permit. She and other Balboa Island residents complained at the time that the bar was noisy, produced litter and attracted unsavory types to the island.
She collected 400 signatures against Village Inn's application. While collecting those signatures, she defamed Village Inn, J. Scott Russo, a lawyer for the bar, told the court.
Because ascertaining monetary damages would be difficult, if not impossible, to calculate, Russo said, a court order was needed to stop Lemen from hurting his client's business.
Duke University Law professor Erwin Chemerinsky, who argued on behalf of Lemen, said determining monetary damages in defamation cases was always difficult because one must put a value on reputation. That doesn't mean that it cannot be done, he said.
Chemerinsky told the court that the U.S. Constitution prohibits prior restraint orders as a remedy for defamation. What if Lemen eventually obtained proof that one of her charges was true? he asked. She would have to go to court to receive permission before she could tell anyone.
