by Paul Alan Levy
Today we have joined forces with the American Civil Liberties Union of Virginia to seek appellate review of the preliminary injunction recently entered by a trial judge in Fairfax County, Virginia, requiring Jane Perez to make two changes in reviews of a Washington D.C. contractor named Christopher Dietz that she had posted on Yelp and Angie’s List. The trial judge had pointedly refused to grant the injunction that Dietz requested, requiring that the entire posts be removed — the judge said that he was not persuaded that Perez’ criticisms of Dietz’s work were unsupported. (The original injunction request is linked from the original Washington Post story on the case) Dietz began a public relations offensive declaring victory, insisting that the suit would continue until he obtained damages and an apology, and further demanding that Yelp and Angie’s List “stop hiding behind section 230.”
Even though the outcome of the preliminary injunction hearing was largely a victory for the defendant (the entire transcript of the hearing, including the testimony and the judge’s oral ruling, as well as the exhibits about which the witnesses testified, are linked from this page), we decided that it was important to seek appellate review.
At the appellate level, and in the reported cases, it is crystal clear that, as the petition for review argues, a preliminary injunction against alleged defamation is an impermissible prior restraint. But it is not uncommon to hear about trial judges issuing temporary restraining orders or preliminary injunctions against alleged defamation. These orders are often made because they are sought ex parte and the judge does not do original research leading to clear law forbidding ex parte injunctions against speech, or because the defendant’s lawyer lacks enough sophistication to recognize and argue the prior restraint issue, or, in the end, because the trial judge just wants to do what he sees as fair. It is also not unusual for trial judges to “split the baby” by issuing an order that gives something to both sides. Apparently, we need more appellate precedent reminding trial judges that the First Amendment forbids such injunctions.
Preliminary injunctions against defamation violate the First Amendment’s rule against prior restraints; even more important, they run afoul of the American tradition of free speech, which assumes that the public can sort out truth from fiction so long as both sides have the opportunity to have their say. Preliminary injunction proceedings do not provide the high level of careful consideration that is needed ensure that defensible criticisms are not lightly found improper — the opportunity for discovery of the opponent’s case, and cross-examination in light of that discovery; the chance for both sides to research the law, to think it through carefully, and to bring it to bear on the facts of the case; the chance for both sides to present their evidence to a jury; the opportunity for the trial court loser to appeal. Moreover, the context of a preliminary injunction encourages rulings based on a rough sense of justice, but issuance of an injunction against speech should never be based on rough justice.
Moreover, although preliminary injunctions are supposed to be issued only when the plaintiff has no other way to protect his rights—in the legal jargon, when its injury is irreparable—the plaintiff’s lawyer in this case admitted in comments to the Washington Post that, if Perez’s reviews remained posted, he could get a larger damages award for his client — so, by definition, his injury is not irreparable.
Perez has detemined to defend herself in this case because she is confident that she did not make any false statements; although the cost of her legal defense was threatening her ability to maintain that posture, Public Citizen and the ACLU are representing her on appeal without chargee, and a public spirited private practitioner has now agreed to represent her pro bono in the trial court as well. Because even the out-of-pocket expenses in the case may be daunting, Perez will likely make a public appeal for donations to help her defend her free speech rights.
At the same time, one might well wonder whether the contractor is wise to litigate this case. Of course, when a small business is genuinely defamed, by statements that are demonstrably false, and the business finds that its business has been seriously and not just theoretically affected, the business may have no choice but to litigate. But as our petition for review points out, litigation of this sort can hurt the business in other ways, because what homeowner is going to want to hire a contractor who sues a customer over an unfavorable review on Yelp or Angie’s List? And that should be an especial concern when a judge’s initial reaction to the lawsuit, as reflected in a preliminary injunction ruling, was that a litany of very specific complaints about the quality of the contractor’s work was sufficiently justified as to warrant denial of a demand that those complaints be taken offline. The aspects of the post that the trial judge enjoined can easily be rewritten to be entirely defensible under defamation law, even if the trial judge was right in his initial ruling that, as phrased, the segments were actionable. The plaintiff in this case may ultimately find that he has won a small battle but lost the war.
