Kinney v. Barnes, No. 13–0043.

• Court: Supreme Court of Texas
• Writing for the Court: Justice LEHRMANNdelivered the opinion of the Court.
• Citation: 443 S.W.3d 87
• Parties: Robert KINNEY, Petitioner, v. Andrew Harrison BARNES (a/k/a A. Harrison Barnes, A.H. Barnes, Andrew H. Barnes, Harrison Barnes), BCG Attorney Search, Inc., Employment Crossing, Inc. and JD Journal, Inc., Respondents.
• Docket Number: No. 13–0043.
• Decision Date: 29 August 2014

443 S.W.3d 87

Robert KINNEY, Petitioner
v.
Andrew Harrison BARNES (a/k/a A. Harrison Barnes, A.H. Barnes, Andrew H. Barnes, Harrison Barnes), BCG Attorney Search, Inc., Employment Crossing, Inc. and JD Journal, Inc., Respondents.

No. 13–0043.

Supreme Court of Texas.

Argued Jan. 9, 2014.
Delivered Aug. 29, 2014.

443 S.W.3d 88

Marc A. Fuller, Vinson & Elkins LLP, Dallas, TX, for Amicus Curiae, Electronic Frontier Foundation.

Brian J. Levy, Attorney–At–Law, Houston, TX, John Sepehri, Austin, TX, for Amicus Curiae, Texas Apartment Association.

Andrew J. Sarne, Kane Russell Coleman & Logan PC, Martin J. Siegel, Law Offices Of Martin J. Siegel, PC,

443 S.W.3d 89

Stewart Edmond Hoffer, Hicks Thomas LLP, Houston, TX, Greggory A. Teeter, Thomas J. Henry Injury Attorneys, Corpus Christi, TX, for Petitioner, Robert Kinney.

Anthony T. Ricciardelli, Attorney at Law, Plano, TX, Dale Lynn Roberts, Eleanor Ruffner, Fritz, Byrne, Head & Harrison, PLLC, Austin, TX, Michael R. Parker, Harrison Barnes PLC, Malibu, CA, for Respondent Andrew Harrison Barnes.

Opinion

Justice LEHRMANN delivered the opinion of the Court.

A hallmark of the right to free speech under both the U.S. and Texas Constitutions is the maxim that prior restraints are a heavily disfavored infringement of that right. So great is our reticence to condone prior restraints that we refuse to allow even unprotected speech to be banned if restraining such speech would also chill a substantial amount of protected speech. This danger is before the Court today, as we are asked whether a permanent injunction restraining future speech is a constitutionally permissible remedy for defamation following an adjudication on the merits. On the one hand, it is well settled that defamation is an abuse of the privilege to speak freely; our holding today does not disturb that. On the other, it is also well settled that prior restraints are rarely permitted in Texas due to their capacity to chill protected speech.

The issue at hand is more specifically presented as whether a permanent injunction is an unconstitutional prior restraint where the injunction (1) requires the removal or deletion of speech that has been adjudicated defamatory, and (2) prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory. We hold that, while the former does not enjoin future speech and thus is not a prior restraint, the latter constitutes a prior restraint that impermissibly risks chilling constitutionally protected speech. Because the court of appeals failed to recognize this distinction in affirming summary judgment for the defendant, we reverse the court of appeals' judgment and remand the case to the trial court for further proceedings.

I. Background

BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG's President, Andrew Barnes, posted a statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. Describing allegations in a lawsuit Barnes had previously filed against Kinney in California, Barnes stated:

The complaint also alleges that when Kinney was an employee of BCG Attorney Search in 2004, he devised an unethical kickback scheme, attempting to pay an associate under the table at Preston, Gates and Ellis (now K & L Gates) to hire one of his candidates. Barnes says that when he discovered this scheme, he and other BCG Attorney Search recruiters immediately fired Kinney. The complaint in the action even contains an email from Kinney where he talks about paying the bribe to an associate at Preston Gates in return for hiring a candidate.

The posted statements prompted Kinney to sue Barnes, BCG, and two other companies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on

443 S.W.3d 90

the merits.¹ Specifically, Kinney sought an order requiring Barnes to (a) remove the allegedly defamatory statements from Barnes's websites, (b) contact third-party republishers of the statements to have them remove the statements from their publications, and (c) conspicuously post a copy of the permanent injunction, a retraction of the statements, and a letter of apology on the home pages of Barnes's websites for six months. Kinney has since abandoned his demand for an apology and retraction.

Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution. The trial court granted the motion, and the court of appeals affirmed without addressing whether Barnes's statements were defamatory. We too will limit our review to the constitutionality of Kinney's requested relief and assume only for purposes of that analysis that the complained-of statements are defamatory.

II. Discussion

“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const. art. I, § 8. Enshrined in Texas law since 1836,² this fundamental right recognizes the “transcendent importance of such freedom to the search for truth, the maintenance of democratic institutions, and the happiness of individual men.” TEX. CONST. art. I, § 8 interp. commentary (West 2007). Commensurate with the respect Texas affords this right is its skepticism toward restraining speech. While abuse of the right to speak subjects a speaker to proper penalties, we have long held that “pre-speech sanctions” are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992) ; see also Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (1920).

The First Amendment of the U.S. Constitution is similarly suspicious of prior restraints, which include judicial orders “forbidding certain communications” that are “issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (citation and internal quotation marks omitted). The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) ; see also id. (“If it can be said that a threat of criminal or civil sanctions after publication ‘chills' speech, prior restraint ‘freezes' it at least for the time.” (quoting A. Bickel, the Morality of Consent 61 (1975))). As such, they “bear[ ] a heavy presumption against [their] constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court,³ this Court,⁴ Texas courts

443 S.W.3d 91

of appeals,⁵ legal treatises,⁶ and even popular culture.⁷

Nevertheless, freedom of speech is “not an absolute right, and the state may punish its abuse.” Near v. Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (citation and internal quotation marks omitted). To that end, the common law has long recognized a cause of action for damages to a person's reputation inflicted by the publication of false and defamatory statements. Neely v. Wilson, 418 S.W.3d 52, 60 (Tex.2013) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ); see also Ex parte Tucker, 220 S.W. at 76 (“There can be no justification for the utterance of a slander. It cannot be too strongly condemned.”). The U.S. Supreme Court and this Court have been firm in the conviction that a defamer cannot use her free-speech rights as an absolute shield from punishment.

This case asks us to examine these conflicting principles, and involves a two-part inquiry. First, we examine whether a permanent injunction against defamatory speech, following a trial on the merits, is a prior restraint. Kinney contends that such a “post-trial remedial injunction” is not properly characterized as a prior restraint at all, much less one that is constitutionally impermissible. Barnes maintains that a permanent injunction against future speech, whether issued before or after the conclusion of a defamation trial, is necessarily a prior restraint. If the permanent injunction is a prior restraint, we must then determine whether it overcomes the heavy presumption against its constitutionality. Kinney argues that defamatory speech is not protected and that enjoining its continuation is therefore permissible. Barnes responds that the presumption cannot be overcome because such injunctions pose too great a risk to free speech.

We first acknowledge the parties' arguments regarding whether Article I, Section 8 of the Texas Constitution affords greater free-speech protection than the First Amendment of the U.S....