Bruno v. Medley
| Citation | 310 So.3d 580 |
| Decision Date | 02 November 2020 |
| Docket Number | NO. 2020-CA-0515,2020-CA-0515 |
| Parties | Christopher J. BRUNO v. Jennifer M. MEDLEY, Individually and "Jennifer M. Medley Campaign Fund" |
| Court | Court of Appeal of Louisiana (US) |
Megan C. Kiefer, KIEFER & KIEFER, 2310 Metairie Road, Metairie, LA 70001, Joseph M. Bruno, BRUNO & BRUNO LLP, 855 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLEE
Robert T. Garrity, Jr., Darrinisha L. Gray, THE LAW OFFICE OF ROBERT T. GARRITY, JR., 615 Hickory Avenue, Harahan, LA 70123, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge Dale N. Atkins )
In this judicial election case, defendants/appellants, Jennifer M. Medley, Individually, and Jennifer M. Medley Campaign Fund (sometimes collectively, "Medley"), appeal the September 30, 2020 judgment of the district court granting a preliminary injunction in favor of plaintiff/appellee, Christopher J. Bruno ("Judge Bruno"), which enjoins Medley from airing or publishing a certain campaign advertisement. Judge Bruno answered the appeal, seeking damages under La. C.C.P. art. 2164, including attorney's fees and costs.
For the reasons that follow, we affirm the district court's September 30, 2020 judgment. A majority of the panel denies the award for Article 2164 damages.1
Medley and Judge Bruno are both candidates in the November 3, 2020 election for Judge, Division F, in the Civil District Court for the Parish of Orleans. Judge Bruno is the incumbent, who currently presides over Division F. On September 21, 2020, Judge Bruno learned through a media outlet that Medley intended to air a television commercial (the "commercial") that evening during Monday Night Football. The commercial stated, in pertinent part, that Judge Bruno "is called judge by some and a deadbeat dad by others" and that "for 13 years [he] refused to pay a single dime in child support for his son"2 or provide his former wife with discovery regarding his income. That afternoon, Judge Bruno filed a petition for temporary restraining order ("TRO") and preliminary and permanent injunction seeking to enjoin Medley from airing the commercial ("Petition").
In her Answer to Judge Bruno's Petition, Medley's original defense was that she had not published "any information concerning the plaintiff [Judge Bruno] that is patently false or that will cause irreparable injury, loss and damage" and that "the allegations contained in the political advertisement are true." Thus, Medley claimed that she could legally disseminate the commercial, which contained no falsities.
The district court granted the TRO and scheduled a preliminary injunction hearing on September 30, 2020. At the preliminary injunction hearing, the district court heard testimony from Medley, Judge Bruno, and Judge Bruno's expert witness, attorney Steven J. Lane. The commercial and portions of the record from Judge Bruno's divorce were introduced into evidence.
On September 30, 2020, the district court found that the commercial contains falsities as Judge Bruno did not refuse to pay child support or to provide discovery in his divorce proceedings. The district court rendered judgment, granting the preliminary injunction and ordering that Medley and those acting on her behalf:
... are restrained, enjoined, and prohibited from distributing printed material, airing television or radio commercials, publishing, or causing to be published advertisements, or to post on social media sites statements, ads, comments, statuses, which falsely state that CHRISTOPHER J. BRUNO is a deadbeat dad or that he failed or refused to pay child support, or that he refused to provide discovery to his former spouse regarding his income, or any statement of suggestion that would lead a person of average intelligence to conclude that any of the statements were true and any such advertisement or posting shall be immediately taken down or removed.
The preliminary injunction further ordered Medley and those acting on her behalf to remove all references to the commercial from social media and campaign literature.
On appeal, Medley abandoned her original defense as to the truthfulness of her statements against Judge Bruno. She does not now dispute that the commercial contains falsities, particularly as to her allegations that Judge Bruno refused to pay child support. Medley argues nowhere on appeal that these statements in her commercial are true. She now alleges in her appeal that "with respect to the issue of child support, he [Judge Bruno] used every available tactic to delay the support of his child." Furthermore, Medley seems to allege that she can now disseminate the commercial containing falsities because she did not knowingly make a false statement against Judge Bruno nor recklessly make a false statement. Medley's only substantive argument on appeal is that she claims that the district court did not address the nature of her knowledge of the falsities in the commercial as being knowing, reckless, and/or negligent.
Medley, in bringing this devolutive appeal, sought expedited consideration from this Court. Judge Bruno answered the appeal, seeking frivolous appeal damages. Medley raises two issues3 on appeal:
The primary issue before this Court is whether the district court judgment violates Jennifer Medley's First Amendment freedom of speech by restraining false judicial-election speech. We find that it does not.
This Court reviews preliminary injunctions subject to the following standard of review on appeal:
In general, the standard of review for a preliminary injunction is whether the trial court abused its discretion. Rand v. City of New Orleans , 12-0348, p. 3 (La. App. 4 Cir. 12/13/12), 125 So.3d 476, 479. "That broad standard is, of course, based upon a conclusion that the trial court ‘committed no error of law and was not manifestly erroneous or clearly wrong in making a factual finding that was necessary to the proper exercise of its discretion.’ " Id. , 12-0348, pp. 3-4 (quoting Yokum v. Pat O'Brien's Bar, Inc. , 12-0217, p. 7 (La. App. 4 Cir. 8/15/12), 99 So.3d 74, 80 ). "[W]here errors of law are involved, the appropriate standard of review is de novo ." Vieux Carre Comm'n Found. v. City of New Orleans , 17-0527, p. 4 (La. App. 4 Cir. 1/31/l8), ––– So.3d ––––, ––––, 2018 WL 651668, *8, writ denied , 18-0248 (La. 2/9/18), 237 So.3d 514.
Meredith v. I Am Music, LLC , 18-0659, p. 4 (La. App. 4 Cir. 2/13/19), 265 So.3d 1143, 1145-46.
The First Amendment mandates that "Congress shall make no law ... abridging the freedom of speech..." U.S. Const. Amend. I. Likewise, Louisiana Const. Art. I, § 7 provides that
The Louisiana Code of Judicial Conduct governs false statements in the context of judicial elections and restrains judicial candidates – not only judges – from inappropriate political and campaign activity, including the making of a knowingly false statement. Canon 7 requires judicial candidates to "maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary." Additionally, a judicial candidate must "take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under this Canon."
Rule 8.2 of the Louisiana Rules of Professional Conduct provides that a "lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office." Also, a "lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct." Id.
La. R.S. 18:1463(C)(1) regulates false statements in the context of political campaigns and provides for a neglect standard as opposed to a "reckless disregard" analysis:
[n]o person shall cause to be distributed, or transmitted, any oral, visual, or written material containing any statement which he knows or should be reasonably expected to know makes a false statement about a candidate for election in a primary or general election or about a proposition to be submitted to the voters.
(Emphasis added). This statute entitles an "affected candidate ... to an injunction to restrain future violations" of Subsection (C). La. R.S. 18:1463(D)(1).
The United States Supreme Court has recognized a lack of First Amendment protection for "calculated falsehoods" in political speech, that is, "knowing" or "reckless" false statements:
That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.
Harte-Hanks Commc'ns, Inc. v. Connaughton , 491 U.S. 657, 687, n. 34, 109 S.Ct. 2678, 2696, 105 L. Ed. 2d 562 (1989) (quoting Garrison v. State of Louisiana , 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125, 133 (1964) ).
The Louisiana Supreme Court explained the interplay between false political speech and constitutional protections in State v. Burgess , 543 So.2d 1332, 1335 (La. 1989) :
The standard for constitutionally protected false speech in the context of public figures was given in New York Times v. Sullivan , 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In that case, the Court h...
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