High court moves to limit speech

In a significant development in free speech law, the California Supreme Court ruled Thursday that state courts may silence people who have defamed others.

Ruling in the case of a 58-year-old Newport Beach woman who accused a local bar of serving tainted food and making sex videos, the high court said a judge may order Anne Lemen to stop repeating false and scurrilous statements that were found by a trial court to be defamatory.

The decision marked the first time the state high court has approved barring defendants in defamation cases from making statements in the future. Judges typically punish defamation by ordering defendants to pay damages.

The dissenters in the 5-2 ruling warned that the court was authorizing a prior restraint on free speech, a legal concept rooted in English common law.

“To forever gag the speaker -- the remedy approved by the majority -- goes beyond chilling speech,” Justice Joyce L. Kennard wrote. “It freezes speech.”

Because violating such an order could mean fines or jail, the prospect may “deter a person from speaking at all,” Kennard wrote.

But the majority said a narrow order against further defamation was constitutional.

“An injunction issued following a trial ... that does no more than prohibit the defendant from repeating the defamation is not a prior restraint and does not offend the 1st Amendment,” Justice Carlos R. Moreno wrote for the majority.

A lawsuit by Aric Toll, who owns the Village Inn on Balboa Island with his parents, triggered the decision.

Toll said Lemen was driving his customers away by videotaping them and telling outrageous lies about his business.

He said Lemen told others that he had Mafia connections and had attempted to kill her.

Toll’s plight elicited sympathy from some of the justices at oral arguments, a factor that probably influenced Thursday’s ruling.

“Every ruling is affected by the facts of the case, and that is why hard cases make bad law,” said Santa Clara University law professor Gerald Uelmen, an expert on the state high court. “But when it comes to the burdens with respect to 1st Amendment protection, this is a pretty significant step.”

Toll, 41, said he was “very happy” about the ruling. He said he had spent about $100,000 pursuing his case against Lemen, who describes herself as a Christian evangelist and owns a home next door to Toll’s business.

“She is capable of a lot of damage, and she just doesn’t let up,” Toll said.

D. Michael Bush, who represented Lemen at trial, said he was disappointed. Bush described Lemen as “emotionally vulnerable” and called the case “a human tragedy.”

“She is ill-equipped to handle herself in a public manner,” he said, asking that she not be contacted by the media.

The concept of prior restraint came into the public lexicon with such major cases as the Pentagon Papers and Nazis’ seeking to march in a Jewish neighborhood in Skokie, Ill.

The prohibition against prior restraint originally applied only to the news media, the court said. The idea was that requiring the media to obtain permission to publish something because it allegedly would be libelous would stifle the free expression at the heart of a democratic society.

Justice Kathryn Mickle Werdegar, in her dissent, said it was “unescapable” that prohibiting Lemen from making certain statements in the future violated the Constitution.

“ ‘A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand,’ ” she wrote, quoting from a 1975 U.S. Supreme Court precedent.

“ ‘It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.’ ”

The permanent injunction against Lemen specifically prohibits her from saying that the Village Inn distributes illegal drugs, encourages lesbian activities, participates in prostitution, serves as a whorehouse, sells alcohol to minors, makes sex videos, serves tainted food and is involved in child pornography.

The order also prevents Lemen from videotaping the bar and its customers within 25 feet of the business and from initiating contact with bar employees.

A Court of Appeal upheld the limitations on filming but struck down as unconstitutional the prohibitions on contacting employees and making the disparaging statements.

Although the state high court agreed that the order was overly broad, it said that a so-called gag order may be permissible if it is narrowly written.

Specifically, the court said the order should have been directed only at Lemen. It had applied to “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.”

The majority also said the order should ensure that Lemen can make whatever complaints she likes to government agencies and should not flatly stop her from contacting Village Inn employees anywhere, anytime and on any subject.

Bush, Lemen’s attorney, said he intends to fight restrictions on Lemen’s speech when the case returns to Orange County for a modified order. He said he and Lemen have not yet decided on whether to appeal to the U.S. Supreme Court.

Duke University law professor Erwin Chemerinsky, who argued the appeal to the state high court, said he was pleased the court struck down the existing order against Lemen and insisted that future orders should be written narrowly and apply only to specific statements and only after trials.

“So if a narrow injunction is crafted, Lemen cannot repeat these specific statements, but she can go out and say other things about the Balboa Village Inn,” Chemerinsky said.

Toll’s lawyer, J. Scott Russo, describing himself as “ecstatic,” said he would seek a new order with the modifications suggested by the court.

“This was absolutely the best we could have hoped for,” Russo said.

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maura.dolan@latimes.com