ORDER DENYING IN PART PLAINTIFFS’ MOTION FOR A PERMANENT INJUNCTION
Prеsently before the court is Plaintiffs’ Motion for Permanent Injunction and Dis
I. BACKGROUND
Prior to 2006, Defendant Sean McWilliams (“McWilliams”) worked as a consultant for a sunglasses company. In 2006, Plaintiff Oakley, Inc. (“Oakley”) acquired the company. At the time, Oakley and its founder, Plaintiff James Jannard (“Jannard”), had no knowledge or awareness of McWilliams. McWilliams, however, soon began sending harassing emails to Oakley and Jannard’s employees, associates, business partners, and industry personnel. McWilliams claims that he also sent emails to law enforcement agencies, such as the Department of Justice and the Federal Bureau of Investigations.
In the emails, McWilliams makes statements attacking Plaintiffs’ character and accusing them of criminal activity. McWilliams accuses Oakley of sponsoring charity fraud, being part of a price fixing cartel, and hiring “Blackwater thugs” to intimidate him. McWilliams accuses Jannard of being a criminal and cheating on his wife. Some of the emails include pornographic images of McWilliams, which he claims Oakley and Jannard created. According to Plaintiffs, McWilliams also uses various email accounts to represent himself as Jannard, Oakley, or other industry actors. In at least one instance, McWilliams allegedly pretended to be Jannard posing as McWilliams, then made death threats to the President of the United States.
In its priоr Summary Judgment Order, the court found that McWilliams intentionally published false facts that damaged Plaintiffs’ character and reputation. The court also found that Plaintiffs were not public figures and rejected McWilliams’ claim that the statements were privileged. Plaintiffs still have pending claims against McWilliams for fraud, publication of facts placing in false light, and intentional infliction of emotional distress.
The court has already held and reiterates that there is no evidence to support McWilliams’ statements, which appear to arise from mental illness.
II. DISCUSSION
Plaintiffs now seek a permanent injunction of McWilliams’ speech. Plaintiffs state that they have identified statements that the court has already found libelous, and ask the court to enjoin McWilliams from repeating these defamatory statements. Specifically, Plaintiffs’ seek to enjoin McWilliams from:
making the following defamatory statements about Plaintiffs, their parent, subsidiary, and affiliated companies or brands to any persons other than governmеntal officials with relevant enforcement responsibility: Jannard is a criminal; Jannard is an adulterer or cheated on his wife; Plaintiffs profited from proceeds generated from charity fraud; Plaintiffs (either directly or through agents) made death threats to McWilliams or his family; Plaintiffs created and/or sent pornography to or involving McWilliаms; Plaintiffs engaged in intimidation tactics targeting McWilliams to secure a merger between Oakley and Luxottica; Plaintiffs sent thugs, Blackwater operatives, or military special forces to intimidate McWilliams; Plaintiffs hacked McWilliams’ email account; Plaintiffs sent death threats, as McWilliams, to the White House; Plaintiffs have offered sums of monеy to*1089 McWilliams to remain quiet; Plaintiffs are war profiteers; Plaintiffs ignored corporate governance; Plaintiffs engaged in predatory surveillance.
Plaintiffs contend that the requested injunction of McWilliams’ speech is narrowly tailored and therefore constitutional, pursuant to the California Supreme Court’s decision in Balboa Island Village Inn, Inc. v. Lemen,
A. Legal Standard
For аny permanent injunction, the moving party must show: “(1) that is has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public intеrest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, LLC,
B. Analysis
This case requires the court to determine whether it should issue an injunction against speech that the court has held to be defamatory. The traditional answer and the best answer is no. This court likewise so rules.
The court is mindful that vile, hurtful speech, such as that published by McWilliams here, has the сapacity to cause real and significant injury. Nonetheless, the traditional and bright-line rule is founded on the idea that the private harm suffered by victims of the speech is a lesser harm than the harm that would be done to our constitutional traditions if courts were to carve out exceptions to the traditional rule and enjoin spеech.
The reasons for the traditional rule are well set forth by Dean Erwin Chemerinsky in Injunctions in Defamation Cases, 57 Syracuse L. Rev. 157 (2007). The reasons for rejecting a bright-line rule are well set forth by a majority of the California Supreme Court in Balboa,
1. Presumptively Unconstitutional Prior Restraints
Injunctions against any speech, even libеl, constitute prior restraints: they “prevent!] speech before it occurs,” by requiring court permission before that speech can be repeated. Chemerinsky, supra, at 163; see also Balboa,
Such prior restraints are “presumptively unconstitutiоnal,” and a “heavy burden of justification rests on anyone seeking a prior restraint on the right of free speech.” Balboa,
Further, in the infrequent instances where othеr courts have upheld injunctions of defamatory speech, there have usually been unique and extenuating circumstances, and vigorous dissents. See, e.g., San Antonio Cmty. Hosp. v. S. Cal. Dist. Council of Carpenters,
2. Ineffective or Overbroad
The injunction here, like injunctions against defamation in general, would also be ineffective, overbroad, or both. The
In addition, even an injunction limited to precise words is troubling because each of the elements of defamation may not be satisfied in the future. Id; see also Balboa,
The only alternative to such an inadequate and still problematic injunction would be for the court to “reаch more broadly and [also] restrain speech that ... has [never been] determined to be libelous.” Chemerinsky, supra, at 171. The court might, for instance, enjoin not only the specific statements at issue, but all similar ones. Although perhaps more effective, such an injunction would necessarily be overbroad: “An injunction that reaches morе broadly than the exact words already held to be libelous is overbroad for the very reason that it restrains communication before [any] determination of whether it is or is not protected by the First Amendment. Because it delays communication that may be non-defamatory and protected by the First Amendment, it is the essence of a prior restraint.” Id at 172.
Moreover, a “similar statement” standard would require a court enforcing the injunction to continuously decide whether new statements by a persistent defendant were sufficiently similar. If a court enjoined the word “thief,” would related words like pilferer, looter, pillager, plunderer, poacher, and rustler alsо support the finding of willfulness necessary to hold the speaker in contempt? How about bandit? Pirate? What about phrases, e.g., “she was in the habit of converting other people’s property to her own property?” Or further into abstraction, “she may take liberties with your property” or “count your silverware after she leaves your home?” See id at 173 (“The richness of the English language and the myriad ways of expressing any thought means that the only effective way to enjoin defamation would be ... to keep the defendant from
The endless game of synonyms and equivalents would therefore put courts in the problematic role of being “perpetual censors ... сontinually deciding what speech is allowed and what is prohibited.” Id. at 171; cf. Balboa,
3. Other Considerations
The court also has to be mindful of the ultimate outcome of this case. McWilliams would likely disobey any injunction of his speech.
Finally, the court notes that Plaintiffs have not yet sought money damages in order to potentially curtail McWilliams’ defamatory statements without impinging on the First Amendment. But even if money damages failed to detеr McWilliams, the court would not compromise the First Amendment with a prior restraint. As a United States Circuit Court explained over a century ago: “The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declarеd it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance.” Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water Power Co.,
III. CONCLUSION
It, of course, is difficult to defend any absolute position, even this one that injunctions never should be permitted in defamation eases. But it seems less extreme if it is remembered that never in the 216 year history of the First Amendment has the Supreme Court found it necessary to uphold a prior restraint in a defamation case or any other. It is possible to imagine hypothetical situations where the absence of an injunctive remedy is troubling, but the law of the First Amendment should not be based on such as possibilities.
Accordingly, this court declines to depart from the wisdom of precedent, and reaffirms the longstanding rule that injunctions of speech in defamation cases are impermissible under the First Amendment. The court therefore DENIES Plaintiffs’ Motion for a Permanent Injunction with respect to Defendant’s speech.
IT IS SO ORDERED.
Notes
. Because Respondent Johnie Cochran passed away during litigation, the Supreme Court declined to resolve the quеstion of whether "the First Amendment forbids the issuance of a permanent injunction in a defamation case, at least when the plaintiff is a public figure.” Tory,
. In his Opposition to this Motion, McWilliams reiterates the claims that this court has found libelous. For instance, McWilliams insists that he is living abroad and cannot return to the United States, because of "repеated[] threats by Oakley private investigators.” (Opp. at 4.) Suggesting that McWilliams may truly believe these claims, he also continues to request the assistance of various law enforcement agencies. (Id. at 5.) Moreover, McWilliams expressly states that: "A permanent injunction would never stop [him] from speaking the truth. [The o]nly way [he] would stop speaking the truth in this matter ... is when civil redress/satisfaction is had ... to compensate him for the heinous ordeal he was made to suffer through.” (Id. at 8.).