Jim Butler Chevrolet’s Temporary Censorship of a Damning Consumer YouTube Video

by Paul Alan Levy

After Dwayne Cooney left his car overnight for service at Jim Butler Chevrolet in Fenton, Missouri, and was told his car had required 5-1/2 hours work, he paid the bill in full. But he was curious about what had taken to long to fix, so he checked the dash camera which, as a security professional, he had installed in the vehicle for safety reasons.  He was surprised to learn that the dealer had lied to him about the repairs performed, resulting in an substantial overbilling.

Cooney posted seventeen minute excerpt of his video on YouTube, along with captions and his own narration explaining the problem, and got several thousand views and more than two hundred comments.  Jim Butler Chevrolet responded by suing him for defamation in the Circuit Court for St. Louis County, Missouri.  Along with its complaint, the dealership filed a motion for a temporary restraining order and preliminary injunction.   The papers were served on Cooney late Friday afternoon, notifying him that a TRO hearing would be first thing Monday morning.  

The Importance of Legal Protections Against Defamation TRO's

Readers of this blog know, as we have discussed from time to time, that the Supreme Court squarely held in Organization for a Better Austin v. Keefe that a preliminary injunction cannot be issued to enjoin libelous statements.   If the defendant has made a false statement of fact about the plaintiff with negligence or actual malice, the plaintiff gets an award of damages, perhaps even punitive damages, but it cannot get an order requiring that the allegedly defamatory material be taken down in the interim. 

This principle is an important protection for consumers, because it is all to easy for a company to get a compliant local judge to issue an emergency injunction against a critic based on a summary proceeding where the consumer has been unable to get legal assistance in time to show the justification for what she said.  At that point, the momentum in the action is against the critic—the speaker has been censored, and the offending material remains offline for the duration of the litigation.   It is hard enough for individual consumers to defend themselves against libel actions brought by a wealthy plaintiff without forcing the defendant, who likely has limited access to counsel anyway, to respond to a complaint in accelerated fashion, on the plaintiff’s schedule.  And any settlement discussions take place against the backdrop of a status quo that is no speech, in recognition that the judge has already made a preliminary determination of the likely outcome on the merits.

Indeed, in Missouri as in Virginia and many other states, state law forbids even a permanent injunction against defamatory statements – in Missouri, this approach is based on the view that the state constitution makes a permanent injunction against defamatory speech an impermissible prior restraint.  Missouri recognizes some exceptions that are not accepted in some states: for example, if the defendant is judgment-proof, an injunction may be an acceptable alternative to damages, and Missouri allows an injunction when the defamatory speech “coerces” third parties.

Jim Butler Chevrolet Gets a TRO

Jim Butler Chevrolet’s large law firm was unaware of this precedent, or at least did not bother to cite it to the judge.  Because Cooney had no time to find legal help on the deliberately short timetable that the dealership gave him, he could not point out the applicable precedents to the judge; he also did not notice that the complaint was verified on information and belief, making its “evidence” of falsity largely inadmissible. 

Unsurprisingly, the judge was promptly entered the TRO in precisely the terms that the plaintiff had tendered for her signature, requiring Cooney both to take down the video itself and to refrain from communicating “any false statements . . . relating to the subject matter underlying the Video.”  even if some injunction had been permissible, this order was significantly overbroad.  Thus, even though the judge had not made any determinations, even preliminary determinations, about what parts of the video was false, Cooney had to take down the entire video, and he could not replace the video with a revised version from which allegedly false statements had been eliminated.  And Cooney was at risk of being held in contempt and sent to jail if anything he said about Jim Butler Chevrolet was later determined to be false.  The judge set a preliminary injunction hearing for Friday.  Cooney obeyed the injunction pending that hearing, taking down the entire video.

The Tide Turns When Cooney Gets Legal Help

Cooney was lucky, however – he contacted me for assistance, and although we generally do not handle libel cases on the merits at the trial level, I told him that if a preliminary injunction were issued, we would help him with an appeal (indications were that the local ACLU chapter would have worked with  us on such an appeal).  At the same time, I suggested that he check his homeowner’s policy, and it turned out that his coverage had the potential to include libel coverage, enough so that the insurance company found an excellent local lawyer, Martin Buckley.  

I helped Buckley prepare a short motion urging the judge to dissolve the TRO and deny a preliminary injunction.  Jim Butler showed up to court ready to present evidence in support of its claim that the video had been improperly edited, but the judge was persuaded by Cooney’s brief and declined to hear any evidence.  After an exchange of Jim Butler Chevrolet's opposition to  Cooney’s motion to dissolve the TRO, and a reply from Cooney, the judge dissolved the TRO altogether.  

Cooney has now restored the video to his YouTube page.  A reminder to readers of this blog — check your homeowner's or renters' policy to make sure that you have libel coverage (those who blog professionally need more specialized and considerably more expensive coverage).