No. 13-0043 IN THE SUPREME COURT OF TEXAS ROBERT ...

No. 13-0043

IN THE SUPREME COURT OF TEXAS

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.

On Petition for Review from the Third Court of Appeals

PETITIONER ROBERT KINNEY’S REPLY BRIEF ON THE MERITS

Andrew J. Sarne State Bar No. 00797380 KANE RUSSELL COLEMAN & LOGAN, P.C. 919 Milam, Suite 2200 Houston, Texas 77002 Telephone: (713) 425-7400 [email protected]

Martin J. Siegel State Bar No. 18342125 LAW OFFICES OF MARTIN J. SIEGEL, P.C. Bank of America Center 700 Louisiana, Suite 2300 Houston, Texas 77002 Telephone: (713) 226-8566 [email protected]

Attorneys for Petitioner

FILEDIN THE SUPREME COURTOF TEXAS13 October 11 P2:49 BLAKE. A. HAWTHORNECLERK

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TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................ i

INDEX OF AUTHORITIES ................................................................................... ii INTRODUCTION ................................................................................................ 1 ARGUMENT ...................................................................................................... 2 I. Waiver Does Not Bar Kinney’s Arguments ................................ 2 II. Barnes Has Not Shown That The Texas Constitution Provides Greater Protection In This Case ................................... 7 III. Kinney’s Federal Authority Is Applicable To This Case ............ 9 IV. The Injunction Kinney Seeks Would Not Be An Unconstitutional Prior Restraint ............................................... 11 V. Kinney Has Offered Sound Reasons For Adopting The “Modern Rule” Permitting Permanent Injunctions Against Defamation In Appropriate Cases ................................ 18

CONCLUSION ................................................................................................. 23

CERTIFICATE OF SERVICE .............................................................................. 25 CERTIFICATE OF COMPLIANCE ....................................................................... 26

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INDEX OF AUTHORITIES

page Cases: Advanced Training Sys., Inc. v. Caswell Equip. Co., 352 N.W.2d 1 (Minn. 1984) ............................................................... 16, 22 Alexander v. United States, 509 U.S. 544 (1993) .......................................................................... passim Am. Univ. of Antigua Coll. of Med. v. Woodward, 837 F. Supp. 2d 686 (E.D. Mich. 2011) ................................................... 22 Auburn Police Union v. Carpenter, 8 F.3d 886 (1st Cir. 1993), cert denied, 511 U.S. 1069 (1994) ........... 11, 17 Balboa Island Village Inn, Inc. v. Lemen, 156 P. 3d 339 (Cal. 2007) ................................................................. passim Bentley v. Bunton, 94 S.W.3d 561 (Tex. 2002) ........................................................................ 7 Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex. App. – Austin 2003) ....................................... 11, 12 Chambers v. Scutieri, 2013 WL 1337935 (N.J. Super. Ct. App. Div. April 4, 2013) ................. 22 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ................................................................................. 10 City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) ................................................................................. 17 Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) ...................................................................... 7, 8 Ex Parte Tucker, 220 S.W. 75 (Tex. 1920) ................................................................ 9, 17, 19

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Freedman v. Maryland, 380 U.S. 51 (1965) ............................................................................. 17, 18 Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253 (Tex. 1983) ............................................................. passim Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Ky. 2010) ............................................................... 11, 18 Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957) .......................................................................... passim Kramer v. Thompson, 947 F.2d 666 (3d Cir. 1991) ..................................................................... 11 Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir 1990) .............................................................. 11, 22 Memon v. Shaikh, 401 S.W.3d 407 (Tex. App. – Houston [14th Dist.] 2013) ................. 12, 22 Near v. Minnesota, 283 U.S. 697 (1931) ............................................................... 13, 14, 16, 17 Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976) ................................................................................. 10 Neely v. Wilson, __ S.W.3d __, 2013 WL 3240040 (Tex. June 28, 2013) .......................... 21 Nolan v. Campbell, 690 N.W.2d 638 (Neb. App. 2004, rev. overruled) .................................. 22 Operation Rescue-National v. Planned Parenthood of Houston and S.E. Tex., Inc., 975 S.W.2d 546 (Tex. 1998) .................................................................. 7, 8 Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971) ........................................................................... 14, 16

iv

Osterberg v. Peca, 12 S.W.3d 31 (Tex.), cert. denied, 530 U.S. 1244 (2000) ......................... 5 Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376 (1973) ........................................................................... 10, 16 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................................................................................. 10 Saadi v. Maroun, 2009 WL 3617788 (M.D. Fl. Nov. 2, 2009) ............................................ 22 Schneider Nat. Carriers, Inc. v. Bates, 147 S.W.3d 264 (Tex. 2004) .................................................................... 20 Schussler v. Webster, 2009 WL 648925 (S.D. Cal. March 9, 2009) ........................................... 22 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) ..................................................................... 15, 17, 18 State v. Consaul, 982 S.W.2d 899 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1160 (1999) ............................................................ 5 Times Film Corp. v. City of Chicago, 365 U.S. 43 (1961) ................................................................................... 15 United States v. Alvarez, 132 S. Ct. 2537 (2012) ............................................................................. 10 Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980) ................................................................................. 15 WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998), cert. denied 526 U.S. 1051 (1999) ........... 21

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Constitutional Provisions: U.S. CONST. amend. I ............................................................................ passim TEX. CONST. art. I, § 8 ........................................................................... passim Other Authorities: Roscoe Pound, Equitable Relief Against Defamation and Injuries to Personalty, 29 HARV. L. REV. 640 (1916) ............................... 14 Stephen A. Siegel, Injunctions for Defamation, Juries and the Clarifying Lens of 1868, 56 BUFF. L. REV. 655 (July 2008) .................... 11

Rodney A. Smolla, LAW OF DEFAMATION § 9.95 (2d ed. 2013) .................. 19

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INTRODUCTION

This petition asks whether speech found to be defamatory after a full

trial on the merits must nevertheless remain online forever on the theory that

ordering its removal would violate freedom of speech. In his opening brief,

Kinney explains why the federal and Texas Constitutions permit courts to

permanently enjoin the republication of defamation, and why this Court

should join those that have recently discarded the outdated rule that “equity

will not enjoin a libel” in any circumstances.

In response, Barnes argues first that Kinney has waived his point that

defamation is constitutionally unprotected and therefore can be enjoined. In

fact, the court of appeals expressly reached this issue, so waiver is

inapplicable. Kinney’s arguments in this Court are not new.

Barnes also argues that the Texas Constitution extends broader

protection from the injunction Kinney seeks than does the First Amendment.

But Barnes must explain why the text, history, and purpose of Article I,

Section 8 confer greater rights in these circumstances. Because he has not

done so, First Amendment standards should govern this case.

Next, Barnes claims Kinney’s requested injunction would act as an

unconstitutional prior restraint. U.S. Supreme Court decisions make clear

that the constitutional evil addressed by the rule against prior restraints is the

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suppression of speech without procedural safeguards before there has been a

final adjudication of its unprotected status. A permanent injunction ordering

the removal of defamation after trial on the merits does not fit the Supreme

Court’s definition of prior restraints – which is why state and lower federal

courts have increasingly imposed and upheld such orders.

Finally, Barnes contests Kinney’s arguments in support of changing

Texas law to adopt the “modern rule” allowing permanent injunctions in

appropriate defamation cases. Barnes minimizes factors like the low

deterrent effect of damages in some instances, the inefficiency of requiring

serial lawsuits, the internet’s role in facilitating defamation today, and the

increase in cyber-bullying and online hate speech. As Kinney shows in his

opening brief, however, these are powerful reasons to update Texas law.

This Court should therefore reverse the decision below and permit

Kinney to seek a permanent injunction removing the malicious falsehood

about him that Barnes has maintained on the internet since 2009.

ARGUMENT

I. Waiver Does Not Bar Kinney’s Arguments Barnes argues first that this Court cannot consider the fact that

defamation lacks constitutional protection because Kinney did not raise the

point in the trial court. See Barnes Brf., Point I. He claims “[t]he only issue

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properly before this Court is whether the injunction Kinney sought was an

impermissible prior restraint on speech or merely a subsequent punishment.”

Id. at 11. This is incorrect for two reasons.

First, because the court of appeals considered whether defamation is

unprotected and analyzed how its constitutional status affects the validity of

Kinney’s proposed injunction, this Court can do likewise. In the court of

appeals, Kinney urged reversal by citing lower court decisions upholding

injunctions against speech. See App. 008 n. 4. The court of appeals

distinguished his authority on the ground that it involved constitutionally

unprotected speech: “In all those cases, the courts determined the language

to be enjoined was not constitutionally protected and therefore not subject to

the prohibition against prior restraints either because it was false or

misleading commercial speech, private communication, or dealt with

instances of stalking, theft, threats, assaults, abuse of process, and

interference with contractual relations.” Id. (citations omitted). The court

then contrasted these forms of unprotected expression with defamation,

which it held to be protected: “Here, none of the exceptions to the general

protection of speech are applicable, so the statement, even if determined to

be defamatory, is still constitutionally protected.” Id. It cited Hajek v. Bill

Mowbray Motors, Inc. for this proposition and quoted dicta from that

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decision: “Defamation alone is not sufficient justification for restraining an

individual’s right to speak freely.” Id. (quoting 647 S.W.2d 253, 254 (Tex.

1983)).

The court of appeals therefore directly considered the point Barnes

claims is now off limits to Kinney: whether defamation enjoys constitutional

protection and how its status as protected or unprotected bears on the

constitutionality of Kinney’s requested injunction. Based on its reading of

Hajek, the court held that defamatory speech is safeguarded by Article I,

Section 8 and so cannot be enjoined either preliminarily or permanently. See

id. To the court of appeals, this set defamation apart from forms of

expression, like threats and false advertising, that have traditionally been

unprotected and therefore “not subject to the prohibition against prior

restraints.” Id. Presumably, if the court of appeals had decided this issue

differently and viewed defamation as analogous to other forms of

unprotected speech, the outcome of Kinney’s appeal might have been

different. In this Court, Kinney contests the court of appeals’ expressed

view of defamation and notes that the U.S. Supreme Court has consistently

grouped it with other kinds of unprotected and sanctionable expression. See

Kinney Brf. at 19-20. Thus, because the court of appeals had sufficient

opportunity to consider this issue, did so, and ruled on the point, this Court

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may do the same. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 40 (Tex.),

cert. denied, 530 U.S. 1244 (2000); State v. Consaul, 982 S.W.2d 899, 902

(Tex. Crim. App. 1998) (applying waiver because issue “ha[d] not been

addressed by the lower appellate court”), cert. denied, 526 U.S. 1160 (1999).

Second, Barnes’s waiver argument rests on an overly narrow

description of what Kinney argued to the trial court. In his response to

Barnes’s motion for summary judgment, Kinney stated: “Although Texas

case law is largely silent on this point, multiple courts, including the

California Supreme Court and the United States Supreme Court, have

specifically found that an injunction based on statements already found to be

defamatory does not offend a defendant’s constitutional right against a prior

restraint on speech.” CR 44. He discussed and quoted Alexander v. United

States, 509 U.S. 544 (1993), Kingsley Books, Inc. v. Brown, 354 U.S. 436

(1957), and Balboa Island Village Inn, Inc. v. Lemen, 156 P. 3d 339 (Cal.

2007), and explained how this case is on all fours with those. CR 44-48.

This argument – that post-trial, remedial injunctions are constitutional

and distinct from invalid prior restraints – is the same as Kinney’s main

point here. See Kinney Brf., Point I(B). Then and now, Kinney’s primary

contention is that an injunction after trial on the merits is not treated as a

forbidden prior restraint under the U.S. Supreme Court’s precedents and the

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most recent case law of other states and lower federal courts. And Kinney

relies on the same key authority in this Court as in the trial court: Alexander,

Kingsley Books, Balboa, and other decisions that reached the same

conclusion. See id. at 11-15, 18, 21, 26-30. At most, Kinney has amplified

and expanded on this point here, as is typical when a case reaches this Court.

Moreover, Barnes acknowledges that Kinney opposed the motion for

summary judgment by arguing that enjoining Barnes’s defamation would be

a permissible “subsequent punishment” rather than a forbidden “prior

restraint.” Barnes Brf. at 11. The court of appeals also described Kinney’s

argument this way. See App. 006-7. The phrase “subsequent punishment”

necessarily presupposes that there is something properly punishable about

the speech at issue. See, e.g., Kingsley Books, 354 U.S. at 443 (discussing

“subsequent penalization” of obscenity). But if defamation enjoys

constitutional cover, as the court of appeals held, it cannot be punished in the

same manner (if at all), before or after adjudication. Implicit, then, in

Kinney’s argument in the trial court that defamation can be enjoined as a

subsequent punishment is his position that it can be punished in the first

place, that is, that it lacks the constitutional immunity of protected speech.

In finding waiver, the court of appeals overlooked this point and failed to

analyze fully what Kinney argued to the trial court.

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In short, Kinney’s arguments in this Court are nothing new and were

expressly ruled on by the court of appeals. As a result, there is no waiver.

II. Barnes Has Not Shown That The Texas Constitution Provides Greater Protection In This Case

Barnes maintains that the Texas Constitution offers more protection

from Kinney’s requested injunction than is found in the First Amendment,

but the argument is misplaced. See Barnes Brf. at 12-15.

Barnes cites Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) for the

claim that “[t]his Court has consistently interpreted Texas’s constitutional

recognition of free speech rights more broadly than its federal counterpart.”

Id. at 12. But he simply ignores the wealth of case law on this subject since

Davenport. More recently, the Court has cautioned that “[t]he mere

assertion that the state provision is broader than the federal means nothing.”

Bentley v. Bunton, 94 S.W.3d 561, 579 (Tex. 2002). If Article I, Section 8

confers greater rights, it “must be because of the text, history, and purpose of

the provision, not just simply because.” Operation Rescue-National v.

Planned Parenthood of Houston and S.E. Tex., Inc. 975 S.W.2d 546, 559

(Tex. 1998) (emphasis in original). “If anything, in the context of

defamation, the First Amendment affords more protection.” Bentley, 94

S.W.3d at 578. And there is “nothing to suggest that injunctions restricting

speech should be judged by a different standard under the state constitution

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than the First Amendment.” Operation Rescue-National, 975 S.W.2d at

559.

Barnes’s sole effort to distinguish the authority that followed

Davenport is his assertion that Operation Rescue-National involved a

content-neutral injunction while Davenport did not. See Barnes Brf. at 12-

13 n. 7. But the rules enunciated in the post-Davenport cases governing

when courts should look to the Texas Constitution rather than the First

Amendment do not turn on content-neutrality. See Kinney Brf. at 7-10 (and

authority cited therein). They more generally require Barnes to show how

the text, history, and purpose of Article I, Section 8 extend greater protection

in this case. Far from offering such an explanation, Barnes simply presents

his own ipse dixit and waves off the entirety of First Amendment law as “not

relevant.” Barnes Brf. at 12-13 n. 7.

In addition, Operation Rescue-National noted that Davenport looked

to state law in part because “the First Amendment standard for reviewing

such an order had not been clearly defined in federal case law.” 975 S.W.2d

at 558. In this case, however, authority from the Supreme Court and lower

federal courts makes clear that a post-trial injunction restricting the

republication of defamation is constitutional. See Kinney Brf. at 11-18, 29-

30 (and authority cited therein). This Court has also consistently applied

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First Amendment law in defamation cases, and this case should be no

exception. See id. at 9-10 and n. 5 (collecting authority).

Barnes also cites Hajek and decisions from lower courts to support his

contention that the Texas Constitution precludes injunctions against

defamation. See Barnes Brf. at 13-14. Hajek did not consider whether First

Amendment law or state law provides the better guideposts, though. See

647 S.W.2d at 255. It is also distinguishable because it did not involve

permanent injunctions; its statement that “[d]efamation alone is not a

sufficient justification for restraining an individual's right to speak freely” is

dicta when applied to such orders. Id. Moreover, by relying exclusively on

Ex Parte Tucker, 220 S.W. 75 (Tex. 1920), Hajek ignored decades of

intervening precedent from the U.S. Supreme Court. See 647 S.W.2d at 255.

Finally, to the degree Hajek stands as a barrier to bringing Texas law in line

with First Amendment principles and the trend in other states permitting

permanent injunctions in appropriate defamation cases, the Court should

overrule it.

III. Kinney’s Federal Authority Is Applicable To This Case

Next, Barnes takes issue with the federal cases Kinney cites because

they do not involve defamation. See Barnes Brf. at 15-16. But Barnes does

not grapple with the long line of U.S. Supreme Court decisions placing

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defamation in the same class as other forms of unprotected expression, such

as obscenity, fighting words, incitement, and speech integral to crime. See,

e.g., United States v. Alvarez, 132 S. Ct. 2537, 2544-45 (2012); R.A.V. v.

City of St. Paul, 505 U.S. 377, 382-83 (1992); Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942); see generally Kinney Brf. at 19-

20 (and authority cited therein). Moreover, in Nebraska Press Assoc. v.

Stuart, the Supreme Court specifically contrasted prior restraints with

remedial steps following trial in defamation cases:

A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law's sanction become fully operative.

A prior restraint, by contrast and by definition, has an immediate and irreversible sanction.

427 U.S, 539, 559 (1976).

Given defamation’s categorical identity with other forms of

unprotected expression, it is no surprise that lower federal and state courts

have interpreted decisions like Pittsburgh Press Co. v. Pittsburgh Comm’n

on Human Relations, 413 U.S. 376 (1973) and Kingsley Books to permit

permanent injunctions in defamation cases. The Supreme Court’s decisions

“all appear to agree that a full jury determination as to the protected status of

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speech is adequate to support the issuance of an injunction.” Kramer v.

Thompson, 947 F.2d 666, 676 n. 25 (3d Cir. 1991); accord, e.g., Auburn

Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993); Lothschuetz v.

Carpenter, 898 F.2d 1200, 1209 (6th Cir 1990); Hill v. Petrotech Resources

Corp., 325 S.W.3d 302, 309 (Ky. 2010); Balboa Island Village Inn, 156 P.

3d at 346-49; see generally Kinney Brf. at 26-30 (and authority cited

therein). “Over the past thirty years, several state courts of last resort have

upheld injunctions restraining defamatory speech. So have federal appellate

courts.” Stephen A. Siegel, Injunctions for Defamation, Juries and the

Clarifying Lens of 1868, 56 BUFF. L. REV. 655, 657 (July 2008). Barnes

fails in his attempt to distinguish relevant U.S. Supreme Court authority

because it does not involve defamation.

IV. The Injunction Kinney Seeks Would Not Be An Unconstitutional Prior Restraint

Barnes urges that “[a]ny injunction on defamation, whether temporary

or permanent, constitutes a prior restraint on speech because it dictates the

content of speech prior to its publication.” Barnes Brf. at 17. He relies on

Hajek, Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101 (Tex. App. –

Austin 2003), and four U.S. Supreme Court cases to make his point. See id.

at 17-22. But Kinney’s requested injunction is not properly viewed as an

unconstitutional prior restraint.

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Initially, Barnes likens this case to Hajek because “requiring

Respondents to remove speech from websites is the functional equivalent of

requiring Mr. Hajek to remove his speech from his car.” Barnes Brf. at 18.

This overlooks that what this Court reversed in Hajek was a temporary

injunction only – an order preventing Hajek from driving around with the

message “Mowbray Motors sold him a ‘lemon’” pending trial on the merits.

647 S.W.3d at 254. Hajek did not determine whether such an order might be

appropriate after trial or whether such an injunction would represent a prior

restraint. See id. at 254-55. As for Brammer, that decision rests almost

entirely on Hajek and also adjudicated a temporary rather than a permanent

injunction. See Barnes Brf. at 18-19; Brammer, 114 S.W.3d at 106-08. Like

Hajek, Brammer should be overruled if it is construed to preclude injunctive

relief in all defamation cases.1

Barnes also invokes four Supreme Court decisions in support of his

argument about prior restraint. First, he quotes the statement in Alexander

that “temporary restraining orders and permanent injunctions – i.e., court

orders that actually forbid speech activities – are classic examples of prior 1 As noted in Kinney’s opening brief, other lower courts in Texas have granted speech-restricting injunctions. See Kinney Brf. at 25-26 n. 9. Earlier this year, the Fourteenth Court of Appeals also upheld an injunction ordering the defendant not to republish statements a jury found to be defamatory following trial on the merits, though the defendant did not argue that the injunction was unconstitutional. See Memon v. Shaikh, 401 S.W.3d 407, 423 and n. 11 (Tex. App. – Houston [14th Dist.] 2013). This decision was not cited in Kinney’s opening brief.

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restraints.” Barnes Brf. at 20 (quoting 509 U.S. at 550). That sentence

might bolster Barnes’s position except that the Court went on to distinguish

between prior restraints and restrictions imposed after a final judicial

determination that the speech is unprotected:

The constitutional infirmity in nearly all of our prior restraint cases involving obscene material… was that the Government had seized or otherwise restrained materials suspected of being obscene without a prior judicial determination that they were in fact so. In this case, however, the assets in question were ordered forfeited not because they were believed to be obscene, but because they were directly related to petitioner's past racketeering violations.

509 U.S. at 551. The Court also differentiated the seizure of obscene

material in Alexander from pretrial seizure based only on probable cause

because the defendant in Alexander received “a full criminal trial on the

merits.” Id. at 552. Here too, any restriction would follow trial on the

merits.

Barnes also cites Near v. Minnesota, 283 U.S. 697 (1931). See Barnes

Brf. at 21. But the statute in Near was “not aimed at the redress of

individual or private wrongs,” and the case did not involve “questions as to

the extent of authority to prevent publications in order to protect private

rights according to the principles governing the exercise of the jurisdiction

of courts of equity.” 283 U.S. at 628, 631. The Court also cited Pound’s

famous article supporting equitable relief against libel. See id. at 631 n. 7.

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(citing Roscoe Pound, Equitable Relief Against Defamation and Injuries to

Personalty, 29 HARV. L. REV. 640 (1916)). Moreover, the law in Near

proscribed all “malicious, scandalous or defamatory” speech in advance,

before speakers could tell if their statements might qualify. 283 U.S. at 706,

712-13. For that reason, the Supreme Court distinguished Near in Kingsley

Books by observing: “Unlike Near, [the statute at issue in Kingsley Books] is

concerned solely with obscenity and, as authoritatively construed, it

studiously withholds restraint upon matters not already published and not yet

found to be offensive.” 354 U.S. at 445. This case is like Kingsley Books,

not Near, because no injunction would issue here until Barnes’s statements

were “found to be offensive,” that is, defamatory, after trial.

Org. for a Better Austin v. Keefe, 402 U.S. 415 (1971), which Barnes

also cites, is equally inapposite. See Barnes Brf. at 21-22. The injunction in

that case “suppress[ed], on the basis of previous publications, distribution of

literature ‘of any kind’ in a city of 18,000.” 402 U.S. at 418-19. As in Near,

the order did not merely proscribe republication of specific content already

found to be unprotected, but banned handing out material of all kinds. See

id. Nor did it aim to “redress alleged private wrongs.” Id. In contrast, the

injunction Kinney seeks would only redress the private wrong of specific

15

defamatory statements Barnes has maintained online for four years, not stifle

previously unadjudicated speech of all kinds.

Finally, Barnes cites Vance v. Universal Amusement Co., Inc., 445

U.S. 308 (1980). See Barnes Brf. at 22. But as Barnes himself observes, the

Texas nuisance laws struck down in Vance authorized temporary orders

barring the “showing of any films in the future even if those films had not

yet been found to be obscene.” Id.; see also Vance, 445 U.S. at 316. As

with Near and Keefe, the constitutional objection in Vance stemmed from

the advance prohibition of potentially lawful speech, not the after-the-fact

removal of speech found at trial to be unlawful, as in this case. The Vance

Court further disclaimed the notion that “there can never be a valid prior

restraint on communicative activity,” and noted that the lower court properly

invalidated the Texas laws because they were “procedurally deficient” and

“more onerous than permissible.” Id. at 317.

In the end, tarring an order with the label “prior restraint” cannot

replace careful constitutional deliberation. The phrase “is not a self-

wielding sword. Nor can it serve as a talismanic test.” Times Film Corp. v.

City of Chicago, 365 U.S. 43, 49 (1961) (quotation omitted); Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975) (“Labeling

respondents’ action a prior restraint does not end the inquiry”). Courts

16

should employ “closer analysis and critical judgment” to make “a pragmatic

assessment of [a restriction’s] operation in the particular circumstances.”

Kingsley Books, 354 U.S. at 442 (quotation omitted).

Several U.S. Supreme Court decisions have held that the kind of order

Kinney seeks is not invalid as a prior restraint, though its effect after trial

would be to prevent people from seeing the defamation Barnes first posted

on his website in 2009. See Kinney Brf. at 12-16 (collecting cases). As one

of these decisions put it: “The special vice of a prior restraint is that

communication will be suppressed, either directly or by inducing excessive

caution in the speaker, before an adequate determination that it is

unprotected by the First Amendment.” Pittsburgh Press, 413 U.S. at 390.

Because it avoids this “special vice,” Kinney’s injunction is not an

unconstitutional prior restraint. See Advanced Training Sys., Inc. v. Caswell

Equip. Co., 352 N.W.2d 1, 11 (Minn. 1984) (Near and Keefe “may once

have stood for the proposition that any injunction against speech activity was

a ‘prior restraint’ on speech,” but more recent authority indicates otherwise).

Moreover, in arguing that the injunction Kinney requests would serve

as an unconstitutional prior restraint, Barnes ignores the other hallmark of

such measures: the unconstrained discretion vested in a government censor.

See Kinney Brf. at 16-18 (and authority cited therein). “In such cases, it is

17

the very existence of unbridled discretion that is constitutionally

unacceptable because it ‘intimidates parties into censoring their own speech,

even if the discretion and power are never actually abused.’” Auburn Police

Union v. Carpenter, 8 F.3d 886 (1st Cir. 1993) (quoting City of Lakewood v.

Plain Dealer Publishing Co., 486 U.S. 750, 756 (1988)), cert. denied, 511

U.S. 1069 (1994). Kinney’s requested injunction would not outlaw or chill

new speech before it happens based on nebulous, catchall criteria like

whether it is “malicious, scandalous or defamatory.” Near, 283 U.S. at 706.

It does not confer discretion on a judge to determine that speech constitutes

an “opprobrious epithet,” and allow her to impose contempt sanctions when

the speaker could not have known in advance that he would run afoul of the

vague dictate. Tucker, 220 S.W. at 75. This is an additional reason why

Kinney’s requested injunction would not be an invalid prior restraint.

Finally, it bears recalling that even prior restraints are constitutional if

accompanied by sufficient procedural safeguards. See Southeastern

Promotions, 420 U.S. at 559; Freedman v. Maryland, 380 U.S. 51, 58

(1965); accord Alexander, 509 U.S. at 552 (“Nor were the assets in question

ordered forfeited without according petitioner the requisite procedural

safeguards, another recurring theme in our prior restraint cases”); Kinney

Brf. at 18. These include requiring the plaintiff to show the speech is

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unprotected, keeping preliminary restrictions brief and limited to

maintaining the status quo, and guaranteeing prompt judicial determination

on the merits. See id. As Kinney noted in his opening brief, the order he

seeks clearly meets these tests. See Kinney Brf. at 22-23. Barnes

completely fails to address this aspect of prior restraint case law and its role

in this case.

V. Kinney Has Offered Sound Reasons For Adopting The “Modern Rule” Permitting Permanent Injunctions Against Defamation In Appropriate Cases

Barnes lastly contests the reasons Kinney advances in his opening

brief for adopting what the Kentucky Supreme Court recently called “the

modern rule” allowing remedial injunctions against defamation after a trial

on the merits. Hill, 325 S.W.3d at 309; see Barnes Brf. at 23-29. First,

Barnes reprises his contention that such an injunction would constitute a

prior restraint and therefore be “disfavored” and “presumptively

unconstitutional.” Id. at 23. As discussed above, Kinney’s requested

injunction would not act as an invalid prior restraint. See supra, Point IV.

The “distaste” Barnes claims Texas and federal courts exhibit for such

orders is irrelevant here. Barnes Brf. at 24.

Barnes next maintains that most states have not yet reconsidered the

traditional rule against enjoining libel. See Barnes Brf. at 25-26. Since U.S.

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Supreme Court decisions beginning in the 1950s and continuing into the

1990s, however, the trend has strongly favored permitting post-adjudication

orders enjoining the republication of defamation. See Kinney Brf. at 26-30.

Thus, the “traditional maxim that ‘equity will not enjoin a libel’… is giving

way to more nuanced analysis suggesting that, in appropriate circumstances,

equitable relief may be appropriate.” Rodney A. Smolla, LAW OF

DEFAMATION § 9.95 (2d ed. 2013). State courts and lower federal courts

alike have increasingly embraced the kind of injunction Kinney seeks. See

Kinney Brf. at 26-30. If the old rule still governs in some jurisdictions, it

may be simply because they have not yet had occasion to reevaluate in light

of the most recent authority.

Further, Barnes argues that concern about relegating plaintiffs to “a

series of lawsuits resulting from continued defamation” is unimportant in

light of “black-letter Texas law, which limits sanctions for defamation to

monetary damages only.” Barnes Brf. at 26 (citing Tucker, 220 S.W. at 76).

But the question is whether broadly construing decisions like Hajek and

Tucker to preclude all injunctions in all defamation cases remains viable in

light of more recent precedent. Other than citing the authority that is itself

being scrutinized in this case, Barnes has no answer for Kinney’s point that

it is inefficient and often insufficiently remedial to force people victimized

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by malicious falsehoods to bring serial lawsuits whenever additional damage

occurs. Juries may award future damages, as Barnes asserts, see Barnes Brf.

at 26-27, but gauging them is notoriously difficult and they may not compare

in remedial efficacy to simply halting the character assassination. See, e.g.,

Balboa Island Village Inn, 156 P.2d at 351.

Barnes also downplays concerns about judgment-proof defendants as

ordinary “collection difficulties,” and claims Kinney wants less wealthy

defendants to accept “diminished constitutional rights.” Barnes Brf. at 27-

28. Kinney has shown that a permanent injunction against republishing

specific defamatory communication would not infringe on constitutional

rights, however. With that objection out of the way, the issue is whether

there are advantages to permitting injunctive relief for defamation in

appropriate cases. An injunction’s ability to ameliorate the harm in cases

where an award of damages is ineffective is obviously a point in its favor,

and courts have taken this consideration into account in particular cases. See

Note 2, infra. (and authority cited therein). As Kinney noted in his opening

brief, where damages are sufficient, long-established Texas law precludes

the entry of injunctive relief. See Kinney Brf. at 31 (citing Schneider Nat.

Carriers, Inc. v. Bates, 147 S.W.3d 264, 284 (Tex. 2004)).

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In addition, Barnes contends that injunctions can never be ordered in a

defamation case because plaintiffs must show “pecuniary harm” to recover,

in which case “an economic remedy is available” that supposedly disentitles

the plaintiff to injunctive relief. Barnes Brf. at 29. This proves too much,

however, since it would apply just as well to all causes of action where a

plaintiff must show harm to prevail and would therefore seem to preclude all

injunctive relief in virtually every kind of case across the board. Regardless,

it is not necessary to show “pecuniary harm” in order to prove defamation.

A private-figure plaintiff like Kinney need only show that Barnes published

a statement that defamed him while acting negligently as to the statement’s

truth. See Neely v. Wilson, __ S.W.3d __, 2013 WL 3420040 at * 5 (Tex.

June 28, 2013) (listing elements of defamation); WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (same).

More importantly, damages may be “available,” as Barnes puts it, but

ultimately inadequate to redress the harm caused by defamation. In practice,

state and federal courts in Texas and elsewhere have found that injunctions

against republishing defamation are sometimes necessary to effectively

protect the plaintiff from future violations of his right to a good name,

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despite the existence of a remedy in damages.2 They have taken into

account factors such as the solvency of the defendant, the difficulty in

assigning a monetary value to reputational harm, and other concerns. See

supra at n. 2 (collecting cases). Here, the trial court will make the case-

specific and fact-dependent decision about whether Kinney qualifies for

injunctive relief if this action is remanded for trial. See, e.g., Balboa Island

Village Inn, 156 P.2d at 351 n. 10 (“We… hold that an award of damages is

not the sole remedy available for defamation. We express no view on

whether, in an individual case, an injunction prohibiting the defendant from

repeating defamatory statements could, or should, be denied because an

award of damages would be an adequate remedy”).

Finally, in his opening brief, Kinney explained why permitting

permanent injunctions is all the more important in light of technological and

social developments that postdate this Court’s last consideration of the

subject. See Kinney Brf. at 35-38. These include the astonishing ease with

which one can defame a target online and the rise of cyber-bullying and hate

2 State and federal decisions granting or affirming permanent injunctions against the republication of defamation include Memon v. Shaikh, 401 S.W.3d 407, 423 (Tex. App. – Houston [14th Dist.] 2013); Chambers v. Scutieri, 2013 WL 1337935 (N.J. Super. Ct. App. Div. April 4, 2013); Am. Univ. of Antigua Coll. of Med. v. Woodward, 837 F. Supp. 2d 686, 701-02 (E.D. Mich. 2011); Saadi v. Maroun, 2009 WL 3617788 at ** 2-3 (M.D. Fl. Nov. 2, 2009); Schussler v. Webster, 2009 WL 648925 at ** 7-9 (S.D. Cal. March 9, 2009); Balboa Island Village Inn, 156 P.2d at 351-53; Nolan v. Campbell, 690 N.W.2d 638, 652-53 (Neb. App. 2004, rev. overruled); Lothschuetz, 898 F.2d at 1206, 1208-09; Advanced Training Sys., 352 N.W.2d at 11.

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speech. See id. In response, Barnes says that this case does not involve

cyber-bullying or online hate speech, and he is correct. See Barnes Brf. at

27. But if the Court grants the petition, it will consider whether a new rule is

appropriate for all defamation cases. The need for the remedy Kinney seeks

is perhaps even more acute in these other kinds of actions, and the Court

should and undoubtedly will consider the effect of its decision here on future

cases that may present different facts but turn on the same important legal

question.

CONCLUSION

For the foregoing reasons, the Court should grant the petition, reverse

the decision below, and permit Kinney’s case to proceed.

October 11, 2013 Respectfully Submitted, /s/ Martin J. Siegel Martin J. Siegel Texas State Bar No. 18342125 LAW OFFICES OF MARTIN J. SIEGEL, P.C. Bank of America Center 700 Louisiana St., Suite 2300 Houston, Texas 77002 Telephone: (713) 226-8566 [email protected]

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Andrew J. Sarne State Bar No. 00797380 KANE RUSSELL COLEMAN & LOGAN, P.C. 919 Milam, Suite 2200 Houston, Texas 77002 Telephone: (713) 425-7400 [email protected]

Attorneys for Petitioner

25

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Reply was served on

counsel of record for Respondents on October 11, 2013 by electronic means

and first class mail:

Dale L. Roberts Daniel H. Byrne Eleanor Ruffner Fritz, Byrne, Head & Harrison, PLLC 98 San Jacinto Blvd., Suite 2000 Austin, TX 78701

/s/ Martin J. Siegel Martin J. Siegel

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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the word limit of TEX. R. APP. P.

9.4(i)(2) because this brief contains 5,117 words, excluding the parts of the

brief exempted by TEX. R. APP. P. 9.4(i)(1).

/s/ Martin J. Siegel Martin J. Siegel

Dated: October 11, 2013