Prior Restraint of Speech

An interesting “prior restraint of speech” issue is erupting from use of the LinkedIn social network. ReachLocal, Inc. obtained  a preliminary injunction prohibiting PPC Claims from contacting ReachLocal’s clients through LinkedIn or any other website.  The injunction was issued by Judge Manuel Real, US District Court, Los Angeles in the matter of ReachLocal Inc. v. PPC. Claims Ltd, et al. 2:16 cv 1007 (C.D Cal. filed February 12, 2016).

The Los Angeles Daily Journal reports that the founder of PPC Claims and its founder Kieran P. Cassidy were alleged by PPC to be violating a preliminary injunction issued by US District Judge Manuel Real. ReachLocal Inc. claims that PPC Claims Ltd improperly removed a confidential client list, and used that list to unfairly compete.

According to the Daily Journal, PPC founder Kieran P Cassidy updated his LinkedIn profile with the statement that he is being harassed and smeared by ReachLocal.  ReachLocal’s argument is that each time Cassidy updates his page, the alleged false statement is repeated by Cassidy to Cassidy’s contacts, including ReachLocal’s listed customers. Hence, the need for the preliminary injunction. Counsel for ReachLocal Inc. defended the scope of the injunction by arguing that the only speech that is being addressed is speech that would operate to interfere with ReachLocal’s relationship with its customers.

Basic Reasoning of Why Courts Generally Do Not Allow “Prior Restraint.”

The basic California law prohibiting broad prior restraints on constitutionally protected speech is found in the case of Balboa Island Village Inn v. Lemen (2007)  121 Cal.App.4th 583. Lemen was a Balboa Island resident of a cottage across from the Village Inn. [Incidentally located just a few miles from my office.] Lemen undertook a campaign of false and defamatory statements to dissuade persons from patronizing the restaurant.  Her campaign succeeded, and the Restaurant owners sought to obtain a court order stopping the continuing damaging statements.   Assuming Lemen’s statements were indeed defamatory and damaging, and that they would continue, the California Supreme Court nevertheless ruled Lemen could not be silenced by an injunction prohibiting future likely similar statements.  The reasoning for the decision:  you can’t know without evidence in a trial whether the anticipated statements actually did cross the line into the “illegal” unprotected speech category.

Was a LinkedIn Member Locked Out of Updating His Profile?

U.S. District Judge Manuel Real’s preliminary injunction in ReachLocal Inc. v. PPC Claim as worded appears to  include “prior restraint” of LinkedIn postings.  Even so, on May 12, 2016 Judge Real issued an order denying ReachLocal’s claims for damages allegedly caused by Kieran Cassidy’s LinkedIn profile updates.  Judge Real seems to have grasped that the wording his sweeping preliminary injunction may have captured more speech than he intended, possibly because federal courts view prior restraints as did the California Supreme Court in Balboa Island Village Inn v. Lemen (2007)  121 Cal.App.4th 583.  I infer Judge Real wanted to see evidence of who received the updated profile, that the particular updated information was indeed damaging.   I also suspect Judge Real came to realize his preliminary injunction went too far.

LinkedIn Postings as Protected Speech?

Social posts pushed or pulled by update algorithms are of course text usually, and not completed “speech” until published. This internet speech is a twist not present in the Lemen case, cited above, which mostly involved printed signs and verbal communications geographically focused at the restaurant site.  One thing is clear:  “speech” is capable of much greater reach and damage when expressed as posts on social media.  Even so, I think it is a mistake to prohibit posts of any particular anticipated content until and unless the content is actually published, and the recipients identified.  To do otherwise places a serious chill upon freedom of speech that is the core life of the internet.

Preserving the Appearance of Justice

Judge Real has been the focus of several other news articles recently.  According to the Los Angeles Daily Journal [May 12, 2016, Page 3] the Ninth Circuit Court of Appeals recently ordered Judge Real removed from continuing as trial judge in two cases “to preserve the appearance of justice,” based on his repeatedly reversed rulings.  In a major class action, Stetson v. Grissom, DJDAR 4491 (9th Cir. May 11, 2016) Judge Real first dismissed the Plaintiffs’ case, was reversed, but then rejected a proposed settlement of the case, and was reversed on that ruling, and when the case then settled, Judge Real dramatically cut the Plaintiff’s fee request, and was reversed yet again.  In a closely related class action, Rodriguez v. Disner, filed at about the same time, Judge Real had also slashed the Plaintiff’s attorney’s fees without reasoned explanation.  In yet another case within this last year, Judge Real had cut fees and been reversed in a published decision Stanger v. China Electric Motor Inc.  The Court of Appeal noted in that decision that Judge Real had failed to justify the magnitude of the fee cut.