MEMORANDUM AND ORDER
I. BACKGROUND
A. Facts
Plаintiff Clark Baker, a retired police officer, is a private investigator and founder of the Office of Medical & Scientific Justice (“OMSJ”). Am. Compl., ¶¶5, 12. Plaintiff OMSJ is a “non-profit public benefit corporation, licensed in California, that investigates cases involving mediсal and scientific corruption.” Id., ¶ 6. The plaintiffs have allegedly “exposed the widespread corruption and incompetence that permeates the ‘HIV industry.’ ” Id.
The plaintiffs allege that, as the result of this and other work, defendant Kevin Kuritzky has harassed Baker and his domestic partner. See, e.g., id., ¶¶ 17, 31-33. In addition, it is alleged that Kuritzky has posted on the Internet defamatory statements about the plaintiffs. See, e.g., id., ¶¶ 17, 20. For example, it is alleged that Kuritzky created and posted a fake newspaper article stating that Baker was indicted for molesting his daughter. Id., ¶¶ 25, 42. It is also alleged that the defamatory statements “have harmed [] Baker’s personal reputation, causing him severe emotional distress. [They] have also caused financial harm to his business, [] OMSJ, which has lost business opportunities as a result.” Id., ¶ 36.
In the Amended Complaint, the plaintiffs assert claims for-libel, false light, interference with advantageous business relations, and intentional infliction of emotional distress. The Amended Complaint seeks damages and injunctive relief.
B. Procedural History
The original complaint brought clаims against ten unidentified “John Doe” defendants. See Complaint. The court denied the plaintiffs’ motion for discovery regarding the identities of the defendants. See Dec. 27, 2012 Order. The plaintiffs subsequently filed an Amended Complaint alleging claims only against Kuritzky. According to the Amended Comрlaint, 17, Kuritzky resides in Cambridge, Massachusetts.
Kuritzky was served on March 15, 2013, at an address in Georgia. See Aff. of Service (Docket No. 15). Kuritzky did not
The plaintiffs later filed their Motion for Default Judgment (the “Motion”). Evidently abandoning their claim for damages, the plaintiffs ask the court to, among other things:
Enter an Order that Mr. Kuritzky is restrained from writing and publishing any false statement of fact concerning plaintiffs Clark Baker or the Office of Medical & Scientific Justice, Inc.;
Enter [an] Order that Mr. Kuritzky immediately direct any internet service providers (ISPs) over which he has control, or with whom he has a contractual relationship, to рermanently disable public access to and/or remove any content, posts and/or pages concerning Plaintiffs Clark B^ker and the Office of Medical and Scientific Justice....
Award any other and further relief this Court deems just and proper.
Id. at 3-4.
II. THE ENTRY OF DEFAULT JUDGMENT
Federal Rulе of Civil Procedure 55(b) allows the court, upon application of the plaintiff, to enter a default judgment against a defendant who is in default. “[T]here is no question that, default having been entered, each of [the plaintiffs] allegations of fact must be takеn as true and each of its [] claims must be considered established as a matter of law.” Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co.,
As a threshold matter, California law applies to the plaintiffs’ claims. See, e.g., Klaxon Co. v. Stentor Electric Mfg. Co.,
Under California law, libel “is a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or" obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation,” Cal. Civ.Code § 45, or which causes special damage, Smith v. Maldonado,
A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof....
Cal. Civ.Code § 45a. “‘“Special damages” ’ are all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation....” Cal. Civ. Code § 48a(4)(b). Where an allegedly libelous statement is not libelous on its face, “the plaintiff must plead and prove that as
In addition, a statement can be libelous only if it is, or implies, a fаctual assertion. See, e.g., Milkovich v. Lorain Journal Co.,
Of the many statements in the Amended Complaint, the court finds that nine are libelous. Other statements are too vague to imply a factual assertion, are not supported by a proper pleading of “innuendo,” or are not alleged to have been made by Kuritzky.
Kuritzky committed libel when he published that Baker
1) Is “a person with a criminal past who was fired from his job due to a violеnt encounter.” Am. Compl, ¶22.
2) “ ‘[H]as blood on his hands.’ ” Id., ¶ 41.
3) “ ‘[H]as an obvious psychological disorder,’ ” id., ¶ 41, and “suffers from psychological disorders,” id., ¶ 23.
4) Molested, or was indicted for molesting, his daughter. Id., ¶ 25.
5) Used “OMSJ to spread falsehoods in order to harm homosexuals and persons infected with HIV and other diseases.” Id., ¶ 2.
6) “[I]s ‘an internalized homophobic gay guy.’ ” Id., ¶ 41.
7) “Is physically dangerous.” Id., ¶ 23.
8) Is “dishonest.” Id., ¶ 41.
9) Is “ ‘less than truthful.’ ” Id., ¶ 39.
Baker alleges that these statements are false. In addition, the statements are each either factual or imply facts about Baker on which they are based, while statement (5) is factual with respect to OMSJ. These statements are libelous on their face. The plaintiffs also allege special damages. In particular, they allege that, as a result of these statements, their services in assisting with HIV-related cases have been refused. Id., ¶ 36. These facts are sufficient to establish a claim for libel.
III. THE INJUNCTION
A. Injunctive Belief
In the First Circuit:
[I]njunetive relief may be ordered where (1) the plaintiff has prevailed on the merits, (2) the plaintiff would suffer irreparable injury in the absence of injunctive relief, (3) the harm to the plaintiff would outweigh the harm to the defendants from an injunction, and (4) the injunction would not adversely affect the public interest.
Joyce v. Town of Dennis,
The plаintiffs are entitled to an injunction. The plaintiffs have prevailed on the merits by virtue of the default. The allegations establish harm to their reputations and business opportunities. The frequency of the libelous statements suggests that the libel will continue absent injunctive rеlief. In addition, the libelous statements “are often some of the first to appear in an Internet search” of the plaintiffs. Am. Compl. ¶ 45. Absent injunctive relief, such continuous conduct will irreparably injure the plaintiffs. See, e.g., RossSimons of Warwick, Inc. v. Baccarat, Inc.,
As explained below, the injunction being issued is narrower than that sought by the plaintiffs. It applies only to specific statements that have been found, by virtue of the default, to be libelous. Kuritzky has no interest in making libelous statements. Finally, because the enjoined statements are libelous and First Amendment interests are protected, the injunction will not adversely affect the public interest.
B. The First Amendment
Even if a plaintiff shows that injunctive relief is appropriate, the injunction must comport with the Constitution. The plaintiffs request that the court issuе an order (i) preventing Kuritzky from “writing and publishing any false statement of fact concerning plaintiffs” and (ii) requiring Kuritzky to “direct any internet service providers” to remove certain materials. Motion at 3-4. These requests raise First Amendment concerns.
A prohibition on writing or рublishing is a form of prior restraint. More specifically, “[a] prior restraint is a government regulation that limits or conditions in advance the exercise of protected First Amendment activity.” Auburn Police Union v. Carpenter,
However, “[a]n injunction that is narrowly tailored, based upon a cоntinuing course of repetitive speech, and granted only after a final adjudication on the merits that the speech is unprotected does not constitute an unlawful prior restraint.” Auburn Police Union,
Issuing an injunction as broad as the plaintiffs’ request could prohibit speech that is not defamatory. See, e.g., Advanced Training Sys., Inc. v. Caswell Equip. Co., Inc.,
Similarly, this court finds that an order prohibiting Kuritzky from repeating statements which, because of the default, must be taken as true and are libelous is constitutionally permissible and appropriate. See Auburn Police Union,
The plaintiffs’ second request, that Kuritzky be ordered to remove from the Internet all materials concerning the plaintiffs, is also too broad. The Amended Complaint does not adequately allege that all of Kuritzky’s online statements are libelous. However, an order to remove specific statements that the court finds to be libelous would not violate the First Amendment. See, e.g., N. Am. Recycling, LLC v. Texamet Recycling, LLC, 08-cv-579,
IV. ORDER
In view of the foregoing, it is, hereby ORDERED that:
1. Plaintiffs’ Motion for Default Judgment (Docket No. 19) is ALLOWED in part. Judgment shall be entered for the plaintiffs as to Count 1 of the Amended Complaint (libel) (Docket No. 12). The remaining claims are in effect MOOT and, therefore, are DISMISSED without prejudice.
2. Kuritzky shall not make or publish statements that assert or imply that Clark Baker:
a) Is “a person with а criminal past who was fired from his job due to a violent encounter;”-
b) “ ‘[H]as blood on his hands;’ ”
c) “ ‘[H]as an obvious psychological disorder,’ ” or “suffers from psychological disorders;”
d) Molested, or was indicted for molesting, his daughter;
e) Used “OMSJ to spread falsehoods in order to harm homosexuals and persons infected with HIV and other diseases;”
f) “[I]s ,‘an internalized homophobic gay guy;’”
g) “Is physically dangerous;”
h) Is “dishonest;” or
i) Is “ ‘less than truthful.’ ”
3. Kuritzky shall not make or рublish statements that state or imply that the Office of Medical & Scientific Justice is being used “to spread falsehoods in order to harm homosexuals and persons infected with HIV and other diseases.”
4. Kuritzky shall forthwith remove, or caused to be removed, from any wеbsite, blog, social media profile or account, or any other online content over which he has control, the statements in paragraphs 2 and 3 of this Order, and any substantially similar statements.
Notes
. Statements surrounded by one set of quotation marks are the plaintiffs' characterizations of Kuritzky’s statements. Language surrounded by two sets of quotation marks are direct quotations of Kuritzky's statements as alleged in the Amended Complaint.
. Even if Baker is a public figure and, therefore, a showing of malice is required, the Amended Complaint adequately alleges actual malice. See, e.g., New York Times Co. v. Sullivan,
.Plaintiffs also allege claims for false light, interference with advantageous business relations, and intentional infliction of emotional distress.