LA Times Recent Article on Defmation & Prior Restraint
State justices for the first time rule that defendants can be barred from making defamatory statements in the future.
By Maura Dolan, Times Staff WriterApril 27, 2007
SAN FRANCISCO — In a significant development in free speech law, the California Supreme Court ruled Thursday that state courts may silence people who have defamed others.Ruling in the case of a 58-year-old Newport Beach woman who accused a local bar of serving tainted food and making sex videos, the high court said a judge may order Anne Lemen to stop repeating false and scurrilous statements that were found by a trial court to be defamatory.
The decision marked the first time the state high court has approved barring defendants in defamation cases from making statements in the future. Judges typically punish defamation by ordering defendants to pay damages.The dissenters in the 5-2 ruling warned that the court was authorizing a prior restraint on free speech, a legal concept rooted in English common law. "To forever gag the speaker — the remedy approved by the majority — goes beyond chilling speech," Justice Joyce L. Kennard wrote.
A lawsuit by Aric Toll, who owns the Village Inn on Balboa Island with his parents, triggered the decision.Toll said Lemen was driving his customers away by videotaping them and telling outrageous lies about his business.He said Lemen told others that he had Mafia connections and had attempted to kill her.Toll's plight elicited sympathy from some of the justices at oral arguments, a factor that probably influenced Thursday's ruling.
"Every ruling is affected by the facts of the case, and that is why hard cases make bad law," said Santa Clara University law professor Gerald Uelmen, an expert on the state high court. "But when it comes to the burdens with respect to 1st Amendment protection, this is a pretty significant step."
Toll, 41, said he was "very happy" about the ruling. He said he had spent about $100,000 pursuing his case against Lemen, who describes herself as a Christian evangelist and owns a home next door to Toll's business. "She is capable of a lot of damage, and she just doesn't let up," Toll said.
D. Michael Bush, who represented Lemen at trial, said he was disappointed. Bush described Lemen as "emotionally vulnerable" and called the case "a human tragedy."
"She is ill-equipped to handle herself in a public manner," he said, asking that she not be contacted by the media.The concept of prior restraint came into the public lexicon with such major cases as the Pentagon Papers and Nazis' seeking to march in a Jewish neighborhood in Skokie, Ill.
The prohibition against prior restraint originally applied only to the news media, the court said. The idea was that requiring the media to obtain permission to publish something because it allegedly would be libelous would stifle the free expression at the heart of a democratic society. Justice Kathryn Mickle Werdegar, in her dissent, said it was "unescapable" that prohibiting Lemen from making certain statements in the future violated the Constitution.
" 'A free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand,' " she wrote, quoting from a 1975 U.S. Supreme Court precedent. "
'It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable.'
"The permanent injunction against Lemen specifically prohibits her from saying that the Village Inn distributes illegal drugs, encourages lesbian activities, participates in prostitution, serves as a whorehouse, sells alcohol to minors, makes sex videos, serves tainted food and is involved in child pornography.The order also prevents Lemen from videotaping the bar and its customers within 25 feet of the business and from initiating contact with bar employees.
A Court of Appeal upheld the limitations on filming but struck down as unconstitutional the prohibitions on contacting employees and making the disparaging statements.Although the state high court agreed that the order was overly broad, it said that a so-called gag order may be permissible if it is narrowly written. Specifically, the court said the order should have been directed only at Lemen. It had applied to "her agents, all persons acting on her behalf or purporting to act on her behalf and all other persons in active concert and participation with her.
"The majority also said the order should ensure that Lemen can make whatever complaints she likes to government agencies and should not flatly stop her from contacting Village Inn employees anywhere, anytime and on any subject.
Bush, Lemen's attorney, said he intends to fight restrictions on Lemen's speech when the case returns to Orange County for a modified order. He said he and Lemen have not yet decided on whether to appeal to the U.S. Supreme Court.
Duke University law professor Erwin Chemerinsky, who argued the appeal to the state high court, said he was pleased the court struck down the existing order against Lemen and insisted that future orders should be written narrowly and apply only to specific statements and only after trials."So if a narrow injunction is crafted, Lemen cannot repeat these specific statements, but she can go out and say other things about the Balboa Village Inn," Chemerinsky said.
Toll's lawyer, J. Scott Russo, describing himself as "ecstatic," said he would seek a new order with the modifications suggested by the court." This was absolutely the best we could have hoped for," Russo said.
Contact Info: maura.dolan@latimes.com
Source: http://www.latimes.com/news/local/la-me-speech27apr27,1,1003742.story?track=rss
ROBERT ATCHISON
§
IN THE DISTRICT COURT
Plaintiff,
§
V.
§
345TH JUDICIAL DISTRICT
§
OMA HAMOU
§
Defendant.
§
OF TRAVIS COUNTY, TEXAS
AGREED ORDER GRANTING PERMANENT INJUNCTION
This case was heard the _______ day of _______, 2005. The parties appeared and announced ready for trial. The Court finds that the parties have agreed to the requested relief, that relief being that Oma Hamou, Defendant and Third Party Plaintiff in this action and The Sarskaia Foundation and Enigma Films, Inc. Intervenors and Third Party Plaintiffs in this action, are entitled to a permanent injunction against Third Party Defendant, Robert Atchison. It is, therefore,
ORDERED that Robert Atchison, Third Party Defendant in this action is permanently enjoined from communicating with or disseminating to any person or entity, either directly or indirectly, for any purpose whatsoever, any statement, information, or depiction concerning or related to Oma Hamou, Enigma Films, Inc., Enigma Royal Films, LLC, Enigma Royal Films, Inc. or The Sarskaia Foundation, save and except only for the Statement of Robert Atchison attached hereto as Exhibit “A” and made a part of this Order.
ORDERED that Robert Atchison, Third Party Defendant in this action is permanently enjoined from directing others or going within two-hundred (200) yards of any of Oma Hamou’s place of residence or that of Enigma and The Sarskaia Foundation’s place of business.
ORDERED that Robert Moshein, Third Party Defendant in this action is permanently enjoined from communicating with or disseminating to any person or entity, either directly or indirectly, for any purpose whatsoever, any statement, information, or depiction concerning or related to Oma Hamou, Enigma Films, Inc., Enigma Royal Films, LLC, Enigma Royal Films, Inc. or The Sarskaia Foundation, save and except only for the Statement of Robert Atchison attached hereto as Exhibit “B” and made a part of this Order.
ORDERED: that Robert Moshein, Third Party Defendant in this action is permanently enjoined from directing others or going within two-hundred (200) yards of any of Hamou, Enigma and The Sarskaia Foundation’s place of business.
ORDERED: that Robert Moshein, Third Party Defendant in this action is permanently enjoined from directing others or going within two-hundred (200) yards of Hamou’s residence.
ORDERED: that, in addition to any other remedies available to Oma Hamou, Enigma Films, Inc. and The Sarskaia Foundation, said parties shall be entitled to liquidated damages in the amount of $5,000, in the aggregate, for each communication or act of dissemination of any information, statement or depiction in violation of this Order upon an offering of proof of said violation and a finding of this court of said violation, provided, however, that the aforestated remedy of the imposition of liquidated damages shall be cumulative and shall not impair or limit the rights of Oma Hamou, Enigma Films, Inc. and The Sarskaia Foundation to other and further relief, including but not limited to contempt, injunctive relief and damages in excess of or in addition to liquidated damages upon a showing of proof in support thereof.
ORDERED: that, for purposes of this Order, each day that the internet is used as an instrumentality to communicate or disseminate any statement, information or depiction in violation of this Order shall constitute a separate violation of this Order.
Signed this ________ day of _________, 2005.
_______________________________
Judge Presiding
NO. GN303141
ROBERT ATCHISON
§
IN THE DISTRICT COURT
Plaintiff,
§
§
V.
§
345TH JUDICIAL DISTRICT
§
OMA HAMOU
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Defendant.
§
OF TRAVIS COUNTY, TEXAS
SETTLEMENT AGREEMENT
STATE OF TEXAS KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS
WHEREAS, Robert Atchison (hereinafter “Atchison”) initiated the above cited cause on or about August 21, 2003 (hereinafter “the Lawsuit”) against Oma Hamou (hereinafter “Hamou”) asserting that a Hamou was indebted to Atchison as a result of certain commercial dealings with her and,
WHEREAS, Oma Hamou, Enigma Films, Inc. and The Sarskaia Foundation intervened in the Lawsuit and, thereafter, joined as third party defefendants, Pallasart Web Ventures, Inc. (hereinafter “Pallasart”) and Robert Moshein (hereinafter “Moshein”) asserting that Atchison was indebted to Hamou as a result of certain commercial dealings with him and further, asserting various other wrongdoing on the part of Atchison and his business Pallasart, and
WHEREAS, Robert Atchison and Pallasart and Hamou and Hamou’ s Businesses desire to fully and finally settle and compromise each and all of the parities claims, demands, liabilities or actions of any kind or character, against the other, known or unknown, existing now or at any time previous to this settlement;
NOW THEREFORE, IN CONSIDERATION of the mutual covenants hereinafter set forth, the parties agree as follows:
1. Atchison and Hamou and Hamou’s Businesses agree that a final agreed judgment, in form and substance identical to that set forth in Exhibit “A”, attached hereto and made a part hereof, shall be entered by the court within ten (10) days of the date of the mutual execution of this settlement agreement, which judgment shall award damages payable by Atchison to Hamou and Hamou’s Businesses in the amount of $1.00 for defamation of Hamou and Hamou’s Businesses. The Judgment will not be published or otherwise conveyed directly or indirectly, to any third party by Robert Atchison without the prior written consent of Oma Hamou. Upon entry of the Judgment, all bonds posted in this case shall be redelivered to Oma Hamou.
2. Atchison and Hamou and Hamou’s Businesses agree that a Permanent Injunction, in form and substance identical to that set forth in Exhibit “B”, attached hereto and made a part hereof, shall be entered by the court within ten (10) days of the date of the mutual execution of this settlement agreement, which Permanent Injunction shall enjoin Atchison from publishing or making statements concerning Hamou and Hamou’s Businesses as provided in Exhibit B.
3. Each of the respective parties to this Agreement shall be responsible for payment of all attorneys’ fees and costs of court incurred by them and shall not be liable to any other party hereto for payment of said fees and costs.
4. Hamou and Hamou’s Businesses, in consideration of Atchison’s covenants herein, including but not limited Atchison’s promise to fully and faithfully comply with the Permanent Injunction described in Exhibit B hereto, does hereby RELEASE and forever DISCHARGE Atchison, his agents, servants and representatives, and Pallasart and its’ agents, servants, and representatives from any and all claims, causes of action, debts, demands, obligations, liabilities and suits whatever, of any kind or character, whether known or unknown, in any manner and in any capacity claimed, owned, held or possessed by Hamou or Hamou’s Businesses, or their agents, servants, representatives, successors or assigns, whether or not any such claim, cause of action, debt, demand, obligation, liability or suit was raised in the Lawsuit. This release of liability by Hamou and Hamou’s Businesses is intended to be all inclusive and comprehensive and is intended to finally settle and dispose of any and all claims, causes of action, debts, demands, obligations, liabilities and suits whatever, of any kind or character, whether known or unknown, that do or may exist in favor of Hamou and/or Hamou’s Businesses against Atchison and Pallasart. However, nothwithstanding anything to the contrary set forth herein, in the event that Hamou or Hamou’s Businesses shall obtain a finding by a court of competent jurisdiction that Atchison has violated the Permanent Injunction, without regard to the amount, if any, of any damages, if any, suffered by Hamou or Hamou’s Businesses as a result of such violation, then, in such event, the release given by Hamou and Hamou’s Businesses shall be void, ab initiio, and shall be without force or effect and, further, the parties agree that any and all applicable statutes of limitation that may or do impair, limit or bar any claim or cause of action released hereunder by Hamou or Hamou’s Businesses shall be waived by Atchison and that Hamou and Hamou’s Businesses shall have the right but not the obligation to refile any claim or cause of action hereinabove released for a period of six (6) months from the date of the entry of the judgment or order of the court finding the aforementioned violation of the Permanent Injunction and Atchison agrees that, with respect to any such refilled claim or cause of action he shall in no event raise a defense of limitations or laches.
5. Atchison, in consideration of the covenants herein of Hamou and Hamou’s Businesses, does hereby RELEASE and forever DISCHARGE Hamou and Hamou’s Businesses and all of her and her Businesses’ agents, servants and representatives, successors and assigns from any and all claims, causes of action, debts, demands, obligations, liabilities and suits whatever, of any kind or character, whether known or unknown, in any manner and in any capacity claimed, owned, held or possessed by Atchison, or his agents, servants, representatives, successors or assigns, whether or not any such claim, cause of action, debt, demand, obligation, liability or suit was raised in the Lawsuit. This release of liability by Atchison is intended to be all inclusive and comprehensive and is intended to finally settle and dispose of any and all claims, causes of action, debts, demands, obligations, liabilities and suits whatever, of any kind or character, whether known or unknown, that do or may exist in favor Atchison against Hamou or Hamou’s Businesses.
6. Atchison and Hamou and Hamou’s Businesses agree that the parties are free to publish and distribute, without restriction or limitation, a signed statement of Atchison identical in form and substance to Exhibit “C” attached hereto and made a part hereof. Atchison agrees that he shall publish the aforementioned statement, completely and without editorial comment or amendment, and the Permanent Injunction on the Alexander Palace website (www.alexanderpalance.org) for a period of one-hundred twenty (120) consecutive days from the date of the entry of the Permanent Injunction.
7. Other than as set forth within this Agreement, Hamou agrees that she will not, in her individual capacity or through Hamou’s Businesses make any statements about Atchison or Pallasart in the future. Atchison understands and agrees that Hamou must undertake a series of communications directed to the public in general and, particularly, directed to interested third parties concerning the subject matter of the Lawsuit in an effort to rehabilitate her reputation and that of Hamou’s Businesses. Atchison further understands and agrees that such communications shall be unfettered and that Hamou will necessarily refute various allegations and statements previously made by Atchison and will assert that various allegations are false, misleading or otherwise factually in error.
8. Atchison agrees he will either not direct others to do so or go within two-hundred (200) yards of any of Hamou, Enigma and The Sarskaia Foundation’s place of business. Atchison also agrees that he will neither direct nor go within two-hundred (200) yards of Hamou’s residence.
9. The foregoing represents the entire agreement between the parties with respect to the settlement of the Lawsuit. This Agreement may not be modified by the parties hereto unless such modification is in writing and signed by all parties to this Agreement.
10. This Agreement shall be construed in accordance with the laws of the State of Texas. In the event of a breach of this Agreement, the parties agree that any claim or action asserting such breach may be filed in the then current county of the state in which either Hamou or Atchison is domiciled, provided, however, that nothing herein shall operate to impair or limit the ability of the parties to file an action in any venue available under law and shall in no manner impair or limit the remedies of Hamou and Hamou’s Businesses to enforce, by contempt or otherwise, the Permanent Injunction entered by the court in connection with this settlement.
EXECUTED THIS _____ day of _________________________, 2005.
The Sarskaia Foundation
By:______________________________
Title: _____________________________
Enigma Films, Inc.
By: _________________________________
Title: _____________________________
Enigma Royal Films, LLC
By: _______________________________
Title: _____________________________
Enigma Royal Films, Inc
By: _______________________________
Title: _____________________________
Pallasart Web Ventures, Inc
By: _______________________________
Title: _____________________________
____________________________
ROBERT ATCHISON
STATEMENT OF ROBERT ATCHISON
The undersigned, Robert Atchison, issues this public statement in connection with the lawsuit, Cause No. GN303141; Robert Atchison, Plaintiff, v. Oma Hamou Defendant; In the District Court, 345th Judicial District of Travis County, Texas (“Lawsuit”).
The lawsuit has been settled and I have agreed to issue this public statement in connection with this settlement. I have also agreed to be made subject to a Permanent Injunction which has been entered by the court in connection with this settlement.
In the past, I have made statements concerning Oma Hamou, the Sarskaia Foundation, Enigma Films, Inc., Enigma Royal Films, LLC, Enigma Royal Films, Inc. and the film, “As A Matter of Honour.” These statements have dealt generally with allegations of criminal conduct on the part of Ms. Hamou and certain commercial debts purportedly associated with Ms. Hamou’s filmmaking activities. These statements have been communicated by me to the general public via the internet and to various third parties such as governmental organizations, prospective lenders, industry professionals and other third parties in private conversations and written communications.
Statements that I have made both verbally and in written form concerning Ms. Hamou and her related organizations and entities regarding the aforementioned subject matters have been false and misleading. I have agreed pursuant to the Permanent Injunction entered in the Lawsuit to no longer make any statements regarding Ms. Hamou or any of the previously mentioned organizations, other than referring to the fact there was a lawsuit, it was settled, and this statement, and I have agreed that any statements by me relating the fact that there was a lawsuit and that it was settled will only be communicated together with the complete text of this statement.
Further, I agree to publish this statement and the Permanent Injunction on the Alexander Palace website (www.alexanderpalance.org) for a period of one-hundred twenty (120) consecutive days the date of the entry of the Permanent Injunction.
Most particularly I wish to publicly state that I recognize that two topics I have commented upon have caused particular distress for Ms. Hamou and I wish to speak directly to those matters.
Firstly, I have no personal knowledge or information which would support in any manner the unsubstantiated allegation that Ms. Hamou or her associates or colleagues attempted to hire a third party to harm or murder me, Robert Atchison. It is my understanding that the law enforcement authorities investigating this matter have closed their files based upon an absence of evidence to support these allegations. I have no reason to believe that there has ever been any substance or merit to these allegations.
Secondly, with respect to the various statements made by me or made by others and republished by me regarding Father Markell of St. Petersburg, Russia and The Fedorovsky Cathedral in St. Petersburg, Russia, I wish to publicly state that I have no personal knowledge that Ms. Hamou took any action that made Father Markell “homeless”, that she seduced him or otherwise had any inappropriate relationship with him or that Father Markell was required to or did repay a loan to J. P. Morgan Bank on behalf of Oma Hamou or any of her related entities and, thirdly, I acknowledge that Ms. Hamou did undertake restoration efforts for The Fedorovsky Cathedral and the Alexander Palace.
My specific reference to the above two topics (regarding an allegation that Ms. Hamou attempted to harm or murder me and the comments regarding The Fedorovsky Cathedral and Father Markell) are not intended to diminish in any way my full and complete retraction of any false or misleading statements I have made in the past regarding Ms. Hamou and the aforementioned entities and organizations. It is simply that I understand that the allegations associated with these two topics have been most offensive to Ms. Hamou.
In no manner do I wish to impede the production of the film, “As A Matter of Honour” or do or say anything that could possibly reflect poorly on her commendable and worthwhile effort to restore any historical monuments in Russia. I wish Ms. Hamou the best in these endeavors. I sincerely regret any harm or damage suffered by Ms. Hamou, personally, or suffered by any of the organizations and entities affiliated with her, or any person associated with this lawsuit. Again, to the extent that any of my previous statements have caused Ms. Hamou concern, embarrassment, or humiliation, I am truly sorry.
____________________________ ____________
Robert ATCHISON Date
Source: AA Legends & OmaHamou.com
Labels: Oma Hamou, Permanent Protective Orders, Statement of Bob Atchison
posted by Sandman at 9:27 PM
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