GAME OF (STICKS &) STONES – Prior Restraint & Online Defamation

by Kelley Drye & Warren LLP

In previous posts, we have explored several aspects of internet defamation – including suing anonymous internet and twitter users and the protections afforded to internet users and providers for re-publishing content under the Communications Decency Act.  As noted in the article “Defamation Without A Name”, while there may be a right to anonymity on the internet, there is no First Amendment right to defame another, even on the internet.

In Massachusetts, a related area of First Amendment law is grabbing headlines after a judge ordered the defendant “not to post any further information about the [plaintiff] or her personal life online or to encourage ‘hate mobs.”  The case is Van Valkenburg v. Gjoni, No. 2015-P-0540, Commonwealth of Massachusetts Appeals Court, and according to First Amendment scholar Eugene Volokh, this is a classic case of prior restraint and the order is unconstitutional.

The facts of the case are sordid and disturbing.  The alleged victim, who goes by the pseudonym Zoe Quinn, is young female video game designer.  She met the defendant, Eron Gjoni, a software developer, through an online dating site – OKCupid.  The two dated for five months before the Quinn broke things off.  Gjoni allegedly had become obsessed with Quin and became convinced that she had been unfaithful to him during their brief relationship.  After she broke it off, Gjoni reportedly pieced together every available detail of her life that existed online and posted a 9,425 word screed designed to embarrass, humiliate, and damage Quinn to the greatest extent possible – confronting Quinn about her alleged infidelities and purporting to name her lovers (including a married supervisor).  Gjoni posted the piece to several gamer-centric websites with the alleged specific intent of subjecting Quinn to hatred within the gaming community, spawning an anti-feminist backlash that has become known at #GamerGate.  After receiving untold numbers of death threats, hate mail, demands that she kill herself and having her social security number and other private information widely disseminated on the web, Quinn went to court and sought a restraining order.

On Quinn’s ex parte application, the trial court judge issued a temporary restraining order, which prohibited Gjoni from posting “any further information about the [plaintiff] or her personal life online or to encourage ‘hate mobs.”  There was no trial and no determination as to the lawfulness of Gjoni’s speech.  After the temporary restraining order issued, Gjoni allegedly continued to post about Quinn on internet chat rooms and other websites.  As a result of his violation of the court’s order and his apparent refusal to agree that he would comply with the order in future, the judge made the injunction permanent.

In April, Gjoni appealed the ruling.  Last week, Professors Volokh and Aaron H. Caplan, filed an amicus curiae brief in support of Gjoni, arguing that the judge’s order is unconstitutionally vague and overbroad and a prior restraint on protected speech.  The First Amendment guarantees that “Congress shall make no law…abridging the freedom of speech…”  Prior restraint of speech involves the prohibition against speech before it is made, and is abhorrent to the First Amendment.  It is only where the speech falls into an exception to the First Amendment, where such speech is unlawful, that such an infringement of the right can be tolerated.  See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559.

The injunction issued against Gjoni does not simply call for the removal of defamatory content that already exists on the internet.  Rather, it prevents Gjoni from “posting any further information about the [plaintiff[ or her personal life online.”  Indeed, it prevents speech that has not yet been uttered and speech that has not already been deemed unlawful.  Nor does it fall into any recognized exception, because “encouragement” of “hate mobs” does not fall within the incitement of violence exception to the First Amendment as articulated by the Supreme Court in Brandenberg v. Ohio, 394 U.S. 444, 447 (1969).

But, what if the content within what has come to be known as the “Zoe Post” is defamatory or otherwise unlawful?  Is that content entitled to First Amendment protection?  If so, can the court prohibit the defendant from repeating the information in future?

For many entertainers and media companies (and any company that is subject to public scrutiny, for that matter), internet defamation is a real threat and one which appears to be on the rise.  Anonymous users with an axe to grind can wreak havoc on a person or company’s reputation through persistent and malicious postings on popular websites, blogs and other internet fora.  For all of them, one singular question rises to the fore – how do I make this stop?  And, how do I keep this from happening again?

Fortunately for California-based entertainers and media companies, the contours of the intersection between prior restraint and defamation have already been shaped by the California Supreme Court.  In Balboa Island Village Inn, Inc. v. Lemen, 40 Cal.4th 1141 (2007), the California Supreme Court held that the general rule that a defamation may not be enjoined does not apply where an injunction is issued to prevent a defendant from repeating statements that have been judicially determined to be defamatory.  In Lemen, the defendant was found to have repeatedly defamed the plaintiff, and the trial court issued an injunction that ordered the defendant, as well as “her agents, all persons acting on her behalf or purporting to act on her behalf and all other persons in active concert and participation with her” from repeating any of a list of statements the court had determined to be defamatory.  The California Supreme Court recognized that the injunction, extending to persons other than the defendants, was unconstitutionally overbroad, but nevertheless held that an injunction preventing the defendant from repeating statements that had been judicially determined to be defamatory withstood constitutional scrutiny.

The Lemen court made clear that for speech to be enjoined, there must first be a judicial determination that the speech is unlawful, citing similar holdings from the supreme courts of Ohio, Georgia, Minnesota and Nebraska.  Absent this judicial determination, an injunction prohibiting even defamatory speech is an unconstitutional prior restraint.

In Lemen, the defendant also argued that the court could not enjoin defamatory statements even after the court had determined them to be unlawful because a change in circumstance might render such statements true.  The court pointed out that in such a case, the defendant was able to seek modification of the injunction under Civil Code section 3424.  The court also noted that if the defendant repeated the defamatory statements in a manner not expressly covered by the injunction, the plaintiff could move to modify the injunction.  Id. at 1161.

While the order at issue in Van Valkenburg v. Gjoni may ultimately be reversed as unconstitutionally overbroad (we’ll have to see how the Massachusetts Appeal Court rules after the case is fully briefed), victims of online abuse are not without remedy.  As the California Supreme Court in Lemen has made clear, where the speech is judicially determined to be defamatory (or otherwise unlawful), the court can enjoin the speaker from repeating the offending statements.  If the speaker then attempts to avoid the terms of the injunction by modifying or altering the speech, the victim may then move the court to modify the injunction to include the modified speech.  With these judicial tools in hand, an injured party may prevent further dissemination of the defamatory content.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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