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Reply brief re injunction in Stutz v. Larkins







On Appeal From Modification of Injunction by the Superior Court of California
For the County of San Diego
Honorable Judith Hayes
Sup. Ct. No. No. 37-2007-00076218-CU-DF-CTL



                                Shaun P. Martin (Bar No. 158480)           
                                University of San Diego School of Law     
                                5998 Alcala Park, Warren Hall                  
                                San Diego, CA  92110                              
                                (619) 260-2347                                        
                                (619) 260-7933 (facsimile)                     

                                        Counsel for Defendant-Appellant Maura Larkins

Injunction Appeal
Procedural History
Statement of Facts
  Respondent Stutz Artiano Shinoff & Holtz, APC (“The Stutz Firm” or “The Firm”)
continues its efforts to justify an unprecedented prior restraint entered against
Appellant Maura Larkins (“Ms. Larkins”) that prohibits her from making any
comments at all – even if entirely true or protected by the First Amendment –
against the Firm or any of its employees.  The Firm’s effort to do so is not only
meritless, but profoundly dangerous.

 A.        The Interests Advanced Are Legally Insufficient.        
 The Stutz Firm largely attempts to defend the trial court’s injunction with a lengthy
discussion (at 1-8) of Ms. Larkins’ alleged misconduct.  This is neither surprising
nor unprecedented.  Prior restraints are rarely entered against blameless angels,
and the history of Anglo-American prior restraint jurisprudence invariably involves
constraints placed upon “bad men” that sought to avoid the untoward
consequences of their speech.  But this historical record also makes clear both that
the motives and character of the speaker are irrelevant (and for good reason) and
that the type of interest at stake here – the desire of the Stutz Firm to maintain its
per-partner profits from diminution as a result of allegedly defamatory speech – are
nowhere near the type of interest sufficient to justify a prior restraint.

  The speech for which William Penn was famously punished was unlicensed and
treasonous.   Similarly, the speech prohibited by the Sedition Act of 1798 was
thought to directly risk the survival of our newly-created government during a time
of undeclared war with France.   Abolitionists were restrained from sending anti-
slavery pamphlets to the South for fear of slave revolts and possible civil war.   The
judiciary enjoined Progressive Magazine (prior to dissolution on appeal) from
publishing an article describing how to manufacture a hydrogen bomb.   Finally, in
the seminal prior restraint case, the New York Times was enjoined from publishing
a stolen, classified document – the Pentagon Papers – during a war that had
already killed tens of thousands of Americans.   The prior restraints entered in all
of these historic analogues were unconstitutional, despite the severity of the
alleged harms and the contemporary view of the defendant as an evil, malicious

 Ms. Larkins has neither the notoriety nor audience of William Penn, nor even of
Daniel Ellsberg.  Nor are the interests at stake in this litigation anywhere near the
type of interests sufficient to justify the trial court’s prior restraint on speech,
particularly when contrasted to these historic precedents.

 Ms. Larkins is instead a retired 61-year old who taught elementary school for 27
years, and whose voice cries out solely on the internet.  Like many retirees, Ms.
Larkins has some strong views, and now has the time to attend City Council
meetings and other government functions typically ignored by the public.  She
publishes her beliefs on a virtually unread “blog” in which she expresses various
opinions about the Stutz Firm and certain of its partners; in particular, Leslie
Devaney, who ran for election as San Diego City Attorney in 2004 and who
advanced to the run-off election before ultimately losing to Michael Aguirre.

 Ms. Larkins is obviously not particularly enamored with Ms. Devaney or her Firm,
which serves as general counsel to numerous municipalities in and around San
Diego.  She complained about these public figures on her blog.  For this, the Firm
promptly sued her.

 Unable to afford an attorney, Ms. Larkins represented herself, and did not know
enough to file an anti-SLAPP motion or otherwise effectively defend the lawsuit.  As
a result, she unwisely stipulated to an injunction in April 2009 that prohibited her
from accusing the Firm of “illegal conduct or violations of the law, unethical
conduct, lack of professional competence or intimidation.”  AI467-68.  Thereafter,
the Stutz Firm repeatedly filed motions to hold Ms. Larkins in contempt, but none of
these motions were successful until after the trial court issued an unprecedented
injunction (which Ms. Larkins timely appealed) that prohibited Ms. Larkins from
saying anything at all – however true – about anyone at the Stutz Firm.  AI748 &

 The Stutz Firm attempts to defend the trial court’s injunction by asserting that it
was necessary to protect the Firm from business losses that might arise were
anyone to read and believe whatever statements remain on Ms. Larkins’ blog.  But
even if entirely true (which is doubtful), the potential for such losses is categorically
insufficient to justify the trial court’s prior restraint.

 “Freedom from government censorship is a core guarantee of the First
Amendment.  This guarantee is so jealous that courts have, since the foundation of
this country, been loathe to restrain speech, even if its content is alleged to be
remarkably harmful.  See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 570
(1976) (rejecting prior restraint issued to guarantee a criminal defendant’s Sixth
Amendment right to a fair trial); New York Times Co. v. United States, 403 U.S. 713
(1971) (declining to enjoin newspapers from publishing the “Pentagon Papers”
despite government’s claim that doing so could threaten national security).”  New
Net, Inc. v. Lavasoft (C.D. Cal. 2003) 356 F. Supp. 2d 1071, 1083.

 For this reason, economic and reputational losses such as those alleged here are
insufficient as a matter of law to justify a prior restraint even if an undisputed result
of defamatory speech.  “Equity will not restrain by injunction the threatened
publication of a libel, as such, however great the injury to property may be.  This is
the universal rule in the United States and was formerly the rule in England.”  Id.
(quoting American Malting Co. v. Keitel (2nd Cir. 1913) 209 F. 351, 354).  The
United States Supreme Court articulated this same rule in Organization For A
Better Austin v. Keefe (1971) 402 U.S. 415, in which the Court held that an
injunction that prohibited the defendant from passing out allegedly defamatory
leaflets that called the plaintiff (a real estate broker) a racist was an invalid prior
restraint in violation of the First Amendment.  Id. at 416-17.  The Court held:
It is elementary, of course, that in a case of this kind the courts do not concern
themselves with the truth or falsity of the publication.  [T]he injunction, so far as it
imposes prior restraint on speech and publication, constitutes an impermissible
restraint on First Amendment rights. . . . No prior decisions support the claim that
the interest of an individual in being free from public criticism of his business
practices in pamphlets or leaflets warrants use of the injunctive power of a court.  
Id. at 418-19 (emphasis added).  “[A] private litigant’s interest in protecting their
vanity or their commercial self-interest simply does not qualify as grounds for
imposing a prior restraint.”  Procter & Gamble Co. v. Bankers Trust Co. (6th Cir.
1996) 78 F.3d 219, 225.

 This dispositive rule exists not only under controlling First Amendment doctrine,
but under the California Constitution as well.  The best example of this principle is
the Court of Appeal’s holding in Gilbert v. National Enquirer, Inc. (1996) 43 Cal.
App. 4th 1135.  In Gilbert, Melissa Gilbert – star of “Little House on the Prairie” –
obtained an injunction that prohibited her ex-husband from making defamatory
statements about Ms. Gilbert’s alleged drug or alcohol abuse or sexual
relationships with third parties.  Id. at 1142.   The Court of Appeal expedited the
resulting appeal from this injunction and held that it was an impermissible prior
restraint in violation of both the First Amendment as well as Article I, Section 2 of
the California Constitution.  Id. at 1144-45.  Although Ms. Gilbert had a valid
reputational and business interest in avoiding defamatory speech and preserving
her right to privacy, the Court of Appeal held that such interests were categorically
insufficient to justify issuance of an injunction in restraint of her ex-husband’s
speech.  The Court of Appeal held:

Prior restraints are disfavored and presumptively invalid.  Circumstances more
urgent than these have been adjudged insufficient to justify the imposition of a
prior restraint.  As noted by the California Supreme Court, even the publication of
the purloined Pentagon Papers concerning matters of national security could not
be restrained . . . [A]n attempt to restrain distribution of a pamphlet criticizing a real
estate broker for his selling practices has likewise been held improper.

[P]rior restraints are not permitted to stop the publication of a defamatory
statement.  As our state Supreme Court put it, the published First Amendment
cases ‘leave no doubt that the truth or falsity of a statement on a public issue is
irrelevant to the question whether it should be repressed in advance of
publication.’  ‘The concept that a statement on a public issue may be suppressed
because it is believed by a court to be untrue is entirely inconsistent with
constitutional guarantees and raises the spectre of censorship in a most pernicious
form.  Chief Judge Lumbard made this abundantly clear [] when he held that
publication of information about a person, “without regard to truth, falsity, or
defamatory character of that information,” was not subject to prior restraint.’ . . .

[P]rior restraints may be imposed under some extraordinary circumstances.  For
example, it has been said that the government may prohibit the disclosure of
military secrets in time of war . . . . However, we have not discovered any case
upholding the power of a court to restrain publication of a statement regarding the
official conduct of a public officer on the ground that the statement was not wholly
true or was presented in a deceptive manner.  The judiciary has been ever mindful
of Thomas Jefferson’s aphorism that ‘error of opinion may be tolerated when
reason is free to combat it.’ . . . .

The publication of information about a person, without regard to truth, falsity, or
defamatory character of that information, is not subject to prior restraint. . . .

One of the prerogatives of American citizenship is the right to criticize public men
and measures.  Such criticism, inevitably, will not always be reasoned or moderate;
public figures as well as public officials will be subject to vehement, caustic, and
sometimes unpleasantly sharp attacks. . . .

The threatened invasion of [Ms.] Gilbert’s right of privacy and the threatened harm
to her reputation are not the sort of ‘extraordinary circumstances’ required to justify
a prior restraint.  Id. at 1144-47 (emphases added) (citations omitted).

 What was true for Ms. Gilbert is equally true for Ms. Devaney and her Firm.  Prior
restraints are the worst form of censorship.  They are not permitted merely to
protect the private business and reputational interests of a party.  See also Ghafur
v. Bernstein (2005) 131 Cal. App. 4th 1230, 1233-40 (holding that a plaintiff who
had sued a teacher for libel for allegedly falsely calling her a terrorist and anti-
Semite on his blog “could not obtain an injunction preventing the teacher from
making unfounded statements about the school’s administrators because such
relief would be an impermissible prior restraint on speech”).

 Our nation has had a long and well-publicized history with prior restraints.  The
First Amendment rightly prohibits them except in cases of the most severe and
unprecedented harm.  The interests advanced by the Stutz Firm in protecting its
business are far less than those advanced by the United States in restraining
publication of the Pentagon Papers.  They are equally insufficient, as a matter of
law, to justify the injunction on speech imposed on Ms. Larkins.  The trial court’s
grant of injunctive relief must accordingly be reversed.

 B.        Precedent Precludes The Trial Court’s Injunctive Relief.

 Even were reputational interests are somehow sufficient to justify a prior restraint
on speech, the trial court’s grant of injunctive relief would still violate the First
Amendment and conflict with controlling precedent.  The Stutz Firm asserts (at 9-
15) that the injunction merely “punishes” Ms. Larkins for circumventing a prior
injunction, the very cases relied upon by the Firm demonstrate the constitutional
invalidity of the trial court’s modified injunction.

 The Stutz Firm obtained summary judgment finding only that four specific
statements alleged in its Complaint were false and defamatory.  AI450-53.  There
was no finding of any other defamatory conduct; moreover, even the stipulated
injunction prevented only statements by Ms. Larkins that alleged “illegal conduct or
violations of the law, unethical conduct, lack of professional competence or
intimidation” by the Firm.  AI467-68.

 By contrast, the injunction entered by the trial court and at issue herein prevents
any mention – defamatory or not – of the Stutz Firm or any of its employees.  The
Stutz Firm readily concedes that the trial court thereby restrained Ms. Larkins from
making statements different from the ones that she had previously made;
moreover, that it restrained her from making even wholly accurate statements that
she has a First Amendment right to make.

  The Firm maintains (at 9-11) that this is a valid sanction under Balboa Island
Village Inn, Inc. v. Lemen (2007) 40 Cal. 4th 1141 in order to “punish past
misconduct.”  But while the Firm cites the correct case, it completely misreads this
authority.  Balboa Island repeatedly made clear that even in an extreme case, an
injunction may only be issued to prevent the repetition of the precise statements
that had previously been adjudicated to be defamatory at trial.  The holding of the
Court in this regard was both express and clear:
Accordingly, we hold that, following a trial at which it is determined that the
defendant defamed the plaintiff, the court may issue an injunction prohibiting the
defendant from repeating the statements determined to be defamatory.  Id. at 1155-
56 (emphases added).

 There were, however, only a limited number of particular statements here
determined by the trial court to be defamatory; namely, those identified in the
Complaint and at issue in the motion for summary judgment.  Repeating those four
defamatory statements could, in an appropriate case, perhaps be enjoined.  But
the injunction at issue here does more – indeed, much more – than that, and
enjoins not only different statements, but statements that have not yet even been
made.  This is a classic impermissible prior restraint.  Evans v. Evans (2008) 162
Cal. App. 4th 1157, 1167 (“An order prohibiting a party from making or publishing
false statements is a classic type of an unconstitutional prior restraint.”).

 The Stutz Firm maintains that there is no difference between enjoining the
repetition of a particular statement already judicially found to be defamatory, on the
one hand, and enjoining different statements to which so such finding has yet been
made.  The California Supreme Court, however, clearly disagrees.  It made this
point repeatedly, expressly and unambiguously in Balboa Island.  The Court stated
in the very first paragraph:  “[W]e hold that that the injunction is overly broad, but
that defendant’s right to free speech would not be infringed by a properly limited
injunction prohibiting defendant from repeating statements about plaintiff that were
determined at trial to be defamatory.”  Balboa Island, 40 Cal. 4th at 1144
(emphasis added).  Lest there be any doubt, the Court reiterated:

         [P]reventing a person from speaking or publishing something that,
         allegedly, would constitute a libel if spoken or published is far different
         from issuing a posttrial injunction after a statement that already has
         been uttered has been found to constitute defamation.  Prohibiting a
         person from making a statement or publishing a writing before that
         statement is spoken or the writing is published is far different from
         prohibiting a defendant from repeating a statement or republishing a
         writing that has been determined to be defamatory and, thus, unlawful.
         This distinction is hardly novel.  [Citing cases]  Id. at 1149-50 (emphases
         in original).

 The Court thereby expressly rejected the precise contention upon which the Firm
relies herein:  that a prior finding of defamation as to certain statements allegedly
justifies the restraint of different statements not yet made.  The Court yet again
repeated this holding:

The United States Supreme Court has never addressed the precise question
before us – whether an injunction prohibiting the repetition of statements found at
trial to be defamatory violates the First Amendment.  But several high court
decisions have addressed related questions, and each is consistent with our
holding that a court may enjoin the repetition of a statement that was determined at
trial to be defamatory.  Id.. at 1151.   This holding – and express limitation – is
consistent with the holding of other authorities as well, as well as their reading of
Balboa Island.  See, e.g., Allen v. The Ghoulish Gallery (S.D. Cal. 2007) 2007 WL
1555739, *3 (“The repetition of defamatory statements may be enjoined only where
a Court has determined, after trial, that one party has defamed another.  See
Balboa Island Village Inn, Inc. v. Lemen.”); Evans, 162 Cal. App. 4th at 1168
(repeatedly noting that the California Supreme Court in Balboa Island only
permitted injunctions against the repetition of specific statements already judicially
determined to be defamatory).  As the Nebraska Court of Appeal recently held in a
nearly identical case to the one at issue herein:

[T]he court enjoined Campbell with respect to ‘any’ publications regarding Nolan
which were published before the trial on March 12, 2003.  However, there were only
three publications . . . that had been adjudicated as containing libelous statements
per se and, therefore, as not containing protected speech.  The prohibition against
republishing ‘any’ publication authored by Campbell against Nolan before trial
obviously sweeps up publications which had not been adjudicated as libelous. . . .
Therefore, the injunction is too broad as written and must be narrowed so that it is
not an unconstitutional prior restraint. . . . In order for the injunction to pass
constitutional muster, the suppression must be limited to the precise statements
already found libelous.
Nolan v. Campbell (2004) 13 Neb. App. 212, 227.  

 Because the trial court’s modification of the injunction is indisputably broader than
its initial resolution of the Firm’s motion for summary judgment, and prohibits
statements not already adjudicated to be defamatory, it is a constitutionally
impermissible prior restraint, and must be vacated.
 C.        The Firm’s “Punishment” Theory Is Doctrinally Unsound.
 The Firm’s contention that the trial court could permissibly “punish” Ms. Larkins
for alleged contempt by entering a prior restraint that prohibits protected First
Amendment speech not only conflicts with controlling precedent, but is also
doctrinally unsound.  This is true for several independent reasons.

 First, the Firm’s position conflicts with the express Legislative command of
California Code of Civil Procedure § 1218.  Section 1218(a) establishes specific,
enumerated penalties for civil contempt, and authorizes courts to impose a fine (up
to $1000 per offense), imprisonment (up to five days), and an award of attorney’s
fees.  Section 1218 nowhere authorizes any other penalty, much less an unlimited
and unspecified deprivation of constitutional rights.  When a statute passed by the
Legislature provides for specific penalties, the judiciary cannot impose others not
specified therein.  O’Grady v. Superior Court (2006) 139 Cal. App. 4th 1423, 1443-
44 (articulating and applying principle of expressio unius exclusio alterius).  The
Firm’s “punishment” theory conflicts with both this longstanding rule and legislative

 Second, the Firm’s principle is both limitless and unbounded.  Under this theory,
all constitutional rights of an individual found to have committed contempt may
permissibly be ignored in order to ensure the vindication of a court’s order.  Even
truthful, non-defamatory speech may (as here) be enjoined, to both “punish” the
contemnor as well as to “enforce” the injunction.  This same theory would justify
physically gagging the defendant as well, a measure that would be equally (if not
more) effective and similarly protective of the court’s order.  Abridgement of the
defendant’s remaining constitutional rights would be justified as well; cruel and
unusual punishment could be imposed, soldiers could be quartered in the home to
monitor compliance, etc.  Perhaps even the death penalty – surely an effective
remedy – would be permissible as well.  The Firm’s theory that all vital
constitutional rights are surrendered once a contempt is found is both unprincipled
and boundless.

 Third, as a matter of both policy and doctrine, the issuance of a prior restraint is
impermissible given the ready availability of alternative remedies.  Those who
defame others are answerable for damages.  Similarly, parties who violate an
injunction are liable for fines, imprisonment, and fees.  Cal. Code Civ. P. § 1218.  
The availability of these alternative remedies precludes the entry of injunctive prior
restraints.  Balboa Island, 40 Cal. 4th at 1149 (“[I]f the defendants persist in their
intention of giving this libelous production to the public, the plaintiff must have his
remedy by a civil suit in a court of law; or by instituting a criminal prosecution, to the
end that the libelers, upon conviction, may receive their appropriate punishment, in
the penitentiary or otherwise.”) (citation omitted); Gilbert, 43 Cal. App. 4th at 1145
& 1148 (“While Brinkman may be held responsible for abusing his right to speak
freely in a subsequent tort action, he has the initial right to speak freely without
censorship. . . . [Ms.] Gilbert’s remedy, if Brinkman or the Enquirer abuse their right
of free speech and press, is to file a civil action for damages, as she has done
here.”); see also Evans, 162 Cal. App. 4th at 1168 (same); Allen, 2007 WL
1555739 at *3 (“Defamatory statements cannot be restrained; the remedy for
defamation is a damages action after publication.”).

 Fourth, as this Court has held, “[t]o establish a valid prior restraint under the
federal Constitution, a proponent has a heavy burden to show the countervailing
public interest is heavy, the prior restraint is necessary and would be effective in
promoting this interest, and less extreme measures are unavailable.”  Evans, 162
Cal. App. 4th at 1167.  The Firm cannot satisfy the last of these prerequisites.  The
trial court nowhere made an express finding that no lesser remedy than a
wholesale deprivation of Ms. Larkins’ First Amendment rights would suffice to
ensure her compliance with the stipulated injunction.  See AI789-796 (bereft of any
such holding).  Moreover, the undisputed facts would belie any such conclusion, as
not only did the trial court effectively punish Ms. Larkins for contempt (and impose
a $3000 fine; Ms. Larkins in fact paid this sanction), but the court also threatened
further fines, damages, and entry of default for further noncompliance.  AI1012.  As
this Court said in reversing the injunctive relief ordered by the trial court in Evans,
“any permissible order ‘must be couched in the narrowest terms that will accomplish
the pin-pointed objective permitted by constitutional mandate and the essential
needs of the public order.’”  Id.  The trial court’s order fails that test here just as it
did in Evans.  See also Balboa Island, 40 Cal. 4th at 1158 n.10 (expressly refusing
to decide “whether, in an individual case, an injunction prohibiting the defendant
from repeating defamatory statements could, or should, be denied because an
award of damages would be an adequate remedy”).

 Finally, even if the Stutz Firm’s “punishment” theory was somehow cognizable, the
trial court’s modification of the injunction would still be massively and impermissibly
overbroad.  The injunction prohibits even speech that is truthful.  It prohibits
speech that is not defamatory.  It prohibits speech about events that have not yet
transpired.   It even prohibits Ms. Larkins from petitioning for the redress of
grievances.  The trial court’s overbroad injunction must be reversed for these
additional reasons as well.  Balboa Island, 40 Cal. 4th at 1160-61 (reversing
injunction to this extent); Nolan, 13 Neb. App. at 228 (similarly reversing injunction
and noting that “[s]ubsequent events and issues, which we cannot foresee, could
make Campbell’s use of the prohibited words” permissible).

 Briefly put, there is neither precedential nor principled support for the Firm’s novel
theory that an individual surrenders her vital First Amendment right to make any
statements about a party – however truthful - merely because she has been found
to have previously made other (unprotected) statements about that entity.  Ms.
Larkins may be fined, ordered to pay damages and fees, and even imprisoned
were she to be found to continue impermissibly her alleged defamation of the Stutz
Firm.  But the trial court’s modified injunction does more, and constitutes an
impermissible prior restraint in violation of the First Amendment.  It must thus be
 D.        This Court’s Holding in Evans v. Evans Is Controlling.
 Finally, in all material respects, the present case is on all fours with this Court’s
recent holding in Evans v. Evans (2008) 162 Cal. App. 4th 1157, and the present
panel should follow this sage and prescient authority.

 As in the present case, this Court in Evans involved a plaintiff – there, a deputy
sheriff – who filed a defamation action against a defendant who was allegedly
disseminating untrue information about him on the internet.  Id. at 1162-63.  There,
as here, the defendant unsuccessfully represented herself in pro per, and the
plaintiff successfully obtained an injunction from the San Diego Superior Court that
enjoined the defendant from publishing “’false and defamatory statements’ about
[plaintiff] on the Internet.”  Id. at 1161.

 This Court, in an opinion by Justice Haller and joined by Justices Huffman and
McIntyre, reversed.  This Court noted that “[t]he right to free speech is one of the
cornerstones of our society, and is protected under the First Amendment of the
United States Constitution and under an even broader provision of the California
Constitution.”  Id. at 1166 (citations omitted).  This Court also noted that a prior
restraint is “the most serious and least tolerable infringement on First Amendment
rights,” and that prior restraints “are highly favored and presumptively violate the
First Amendment.”  Id. at 1166-67.  “This is true,” this Court noted, “even when the
speech is expected to be of the type that is not constitutionally protected,” noting
that the Supreme Court in Near v. Minnesota (1931) 283 U.S. 697, had rejected as
impermissible a prior restraint on periodicals containing “malicious, scandalous and
defamatory” material.  Evans, 162 Cal. App. 4th at 1167.

 This Court squarely held in Evans that the injunction entered by the trial court was
an invalid prior restraint prohibited by both the First Amendment as well as Article I,
Section 2 of the California Constitution.  “We conclude,” this Court stated, that “the
preliminary injunction was overbroad and constituted an invalid prior restraint
before trial.”  Id. at 1161.  This Court reviewed the California Supreme Court’s
opinion in Balboa Island, which it noted stood for the proposition that while a party
may permissibly be enjoined “from repeating specific statements found at trial to be
defamatory,” Evans, 162 Cal. App. 4th at 1168 (emphasis in original), the trial court’
s injunction did not merely enjoin specific prior statements that had already been
expressly found defamatory, but instead included statements – including but not
limited to those not yet made -- that had not previously been adjudicated to be
defamatory.  Id. at 1169.  This Court noted, citing Gilbert, that “[w]hile a party may
be held responsible for abusing his right to speak freely in a subsequent tort
action, he has the initial right to speak freely without censorship.”  Id. at 1168.  This
Court held:

 Under these principles, the court’s preliminary injunction prohibiting Linda from
publishing any‘false or defamatory’ statements on the Internet is constitutionally
invalid.  Because there has been no trial and no determination on the merits that
any statement made by Linda was defamatory, the court cannot prohibit her from
making statements characterized only as ‘false and defamatory.’ . . . It is well-
settled that a plaintiff may recover damages for speech that is proved to be
damaged or libelous.  Additionally, a court may enjoin a defendant after trial from
repeating defamatory statements. . . . [But] a court may not constitutionally prevent
a person from uttering a ‘defamatory’ statement before it has been determined at
trial that the statement was defamatory. Id. at 1169.

 What was true in Evans is equally true here.  Indeed, the injunction applied to Ms.
Evans was even more limited than the one applied to Ms. Larkins, as the former
restrained only “false and defamatory” statements, whereas the one at issue here
prohibits even true and nondefamatory statements – core First Amendment
speech.  Just as the trial court’s injunction was an impermissible prior restraint in
Evans, so too is the trial court’s injunction here equally impermissible.  Even if a
trial court may enjoin the repetition of specific statements previously adjudicated to
be defamatory, it may not enjoin other statements not previously so found.  This
central principle is dispositive, and compels reversal.

E.   The Sua Sponte Modification Violates Due Process.

 Finally, in a display of chutzpah, the Firm argues (at 20-21) that Ms. Larkins
waived her right to challenge the modification of the injunction by not objecting to
it.  But the only reason that Ms. Larkins’ pro se opposition papers did not object to
this modification was because the motion filed by the Firm neither asked for nor
provided notice of the modification entered sua sponte by the trial court, and
instead requested only the entry of Ms. Larkins’ default.  AI 656-64

 Moreover, after entry of this unnoticed modification, Ms. Larkins did indeed object
to it, arguing that it was both an invalid prior restraint as well as entered without
notice and an opportunity to be heard in violation of the Due Process Clause.  
AI750-84.    Ms. Larkins was correct: the trial court’s sua sponte expansion of the
injunction did indeed violate her due process rights, providing yet another reason
why this relief must be reversed.  Western Water Management, Inc. v. Brown (5th
Cir. 1994) 40 F.3d 105, 109 (reversing sua sponte modification of injunction in
nearly identical setting as a violation of the Due Process Clause).  


 The trial court erred by modifying the stipulated injunction to create an
impermissible prior restraint on speech.  Defamatory speech admittedly creates
some problems.  But the lessons of history have repeatedly taught us that the
dangers engendered by prior restraints – including those imposed by the judicial
branch – constitute a far more dangerous threat to liberty.  It is for this reason that
the First Amendment prohibits such acts, even when perceived to be “necessary”
at the time.

 This principle is especially applicable here.  The danger created by the trial court’
s ruling – or, worse yet, any acceptance of that order by this Court – would be far,
far worse than the private losses (if any) that might be imposed upon the profits of
the Stutz Firm by Ms. Larkins’ blog.

 This Court should stridently reaffirm the longstanding principles of Anglo-
American prior restraint jurisprudence and vacate the injunction below.
Shaun Martin cases
San Diego
Education Report