CAUSE NO. CC-10-08658-E FERNANDO ROSALES AND INITIATIVE PARTNERS, LLC D/B/A LOST SOCIETY § § IN THE COUNTY COURT PLAINTIFF, § § AT LAW NUMBER 5 V. § § AVI S. ADELMAN, BARKINGDOGS.ORG, AND DALLAS CREATIVE, INC § § § DEFENDANTS, § DALLAS COUNTY TEXAS PLAINTIFFS BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FOR TEMPORARY INJUNCTION 1. Plaintiffs, Fernando Rosales and Initiative Partners, LLC D/B/A Lost Society (hereinafter collectively referred to as “Plaintiffs”) and files this Plaintiffs Brief In Support Of Plaintiffs’ Application For Temporary Injunction. 2. Defendant's right to free speech would not be infringed by a properly limited injunction prohibiting defendant from repeating statements about plaintiff that were determined by the court at an evidentiary hearing to be defamatory. 3. Movant requests a evidentiary hearing to allow the court to determine whether these statements oublished y Defendant are defamatory and whethere to issue a limited temporay injunction, that includes a time. place and manner, ordering only defendants not to repeat these defamatory statements. FACTS 4.Fernando rosales is the president of the corporation Initiative Partners dba Lost Society. Lost Society is a resturaunt and bar locatded on lower Greenville ave, Dallas. Tx Mr. Fernando Rosales is a thirty years old and a vetern of the military, where he served horably. He is a coollege graduate and is atending a master program in finance/accounting. He is engaged to be married to the daughjter of the former City of dallas, asst firechief. 5.Defendant, www.barkingdog.org is a website owned and operated by Defendant, Avi S, Adelman. Defendant, Dallas Creative, Inc is a business owned and operated by the Defendant, Avi S. Adelman and Defendant, Dallas Creative, Inc, is the sponsor of the website, www.barkingdogs.org 6.Defendant, Avi Adelman, admits, in his deposition, to publishing the below listed statements on his website www.barkingdogs.com. Mr. Fernando Rosales claims that these statements are defamatory and false and that Defendants knew or should have known there was no basis for these statement. 7.Movant requests a evidentiary hearing to allow the court to determine whether these statements are defamatory and whethere to issue a temorray injunction ordering defendants to not repeat these defamatory staements.
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Plaintiffs Brief in Support of Plaintiffs Application for Temporary Injunction
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CAUSE NO. CC-10-08658-E
FERNANDO ROSALES AND INITIATIVEPARTNERS, LLC D/B/A LOST SOCIETY
§§
IN THE COUNTY COURT
PLAINTIFF, §
§ AT LAW NUMBER 5
V. §
§
AVI S. ADELMAN, BARKINGDOGS.ORG, ANDDALLAS CREATIVE, INC
§§§
DEFENDANTS, § DALLAS COUNTY TEXAS
PLAINTIFFS BRIEF IN SUPPORT OF PLAINTIFFS’ APPLICATION FORTEMPORARY INJUNCTION
1. Plaintiffs, Fernando Rosales and Initiative Partners, LLC D/B/A Lost Society(hereinafter collectively referred to as “Plaintiffs”) and files this Plaintiffs Brief In
Support Of Plaintiffs’ Application For Temporary Injunction.2. Defendant's right to free speech would not be infringed by a properly limitedinjunction prohibiting defendant from repeating statements about plaintiff that weredetermined by the court at an evidentiary hearing to be defamatory.3. Movant requests a evidentiary hearing to allow the court to determine whetherthese statements oublished y Defendant are defamatory and whethere to issue alimited temporay injunction, that includes a time. place and manner, ordering onlydefendants not to repeat these defamatory statements.
FACTS4.Fernando rosales is the president of the corporation Initiative Partners dba Lost Society. LostSociety is a resturaunt and bar locatded on lower Greenville ave, Dallas. Tx Mr. FernandoRosales is a thirty years old and a vetern of the military, where he served horably. He is acoollege graduate and is atending a master program in finance/accounting. He is engaged tobe married to the daughjter of the former City of dallas, asst firechief.
5.Defendant, www.barkingdog.org is a website owned and operated by Defendant, Avi S,Adelman. Defendant, Dallas Creative, Inc is a business owned and operated by theDefendant, Avi S. Adelman and Defendant, Dallas Creative, Inc, is the sponsor of thewebsite, www.barkingdogs.org
6.Defendant, Avi Adelman, admits, in his deposition, to publishing the below listedstatements on his website www.barkingdogs.com. Mr. Fernando Rosales claims that thesestatements are defamatory and false and that Defendants knew or should have knownthere was no basis for these statement.7.Movant requests a evidentiary hearing to allow the court to determine whetherthese statements are defamatory and whethere to issue a temorray injunctionordering defendants to not repeat these defamatory staements.
8. On the below referenced dates, on the his website www.barkingdogs.org inDallas County, Texas defendant, Avi S. Adelman, published defamatory statementsconcerning Plaintiffs.
9. On June 3, 2010, Defendant committed libel and published disparaging and defamatorywords that were untrue about Plaintiffs on a public Internet site, www.barkingdogs.org, whichis owned and maintained by Defendant.
10. The June 3, 2010 post titled, "Early Morning Shooting Leaves One Dead on Char-BarParking Lot," states that "[t]wo black males had just left Lost Society Bar" when an argumentensued and one of the males shot and fired four rounds at the other. Defendant has includedlinks to a Dallas Morning News article and a Dallas Observer blog regarding the incident.
11. Defendant's statements about the males just leaving Lost Society bar are false andDefendant knew or should have known there was no basis for this statement. Defendant's ownlinks to news stories regarding the incident make no mention of Lost Society.
12. In the June 3, 2010 post, Defendant made a false statement that the parties involvedin the shooting were intoxicated at Lost Society. Defendant has no basis for this falsestatement and published it to the public as if it were true. Defendant's title of the post evenclaims that it is the"truth."
14. The June 6, 2010 post titled, "Truth in Advertising Comes to Lowest Greenville,"exhibits a picture of Plaintiffs' business billboard sign with the words "LOST SOCIETY" inlarge letters and "The Ultimate Experience," which is Plaintiffs' slogan. Defendant replaced thepicture on Plaintiffs' billboard sign with a picture of a shooting range: target in the shape of ahuman figure and added the statement "[b]eing murdered on the street after gettingintoxicated at our bar, may not be considered an 'ultimate' experience."
20. The June 10, 2010 post states that "[l]ast week's murder by Char Bar took place afterthe victim and shooter partied at Lost Society," and calls Lost Society's owner "the scumbarowner."
21. The June 10,2010 post also states that Defendant called the Dallas Sheriff’s Officepublic affairs office and asked them if they "knew the reputation of the club,” implying thatPlaintiffs have a bad or negative reputation.
22. The June 10, 2010 post then claims that other Greenville Avenue business owners aretrying to "shut down" Lost Society because it is "killing their businesses by scaring people off"and that the club owner is "equally hated for his crap-on-you attitude."
25 The June 23, 2010 post reads, "Sources tell BD this person is also on the list for a one-way ticket somewhere out of the country." Defendant implied that Plaintiff ROSALES wouldbe deported, when he knew or should have known the statement was false.
26. On June 25, 2010, Defendant posted a photograph of Plaintiff ROSALES on a publicInternet site, www.barkingdogs.org, which is owned and maintained by Defendant.
29. The June 28, 2010 post reads, "The shooting of a bar patron after he left Lost Societya few weeks ago did not set off the final alarm."
30. Defendant's statements about the victim of shooting having been a patron of LostSociety bar are false and Defendant knew or should have known there was no basis for thisstatement.
32. The June 30, 2010 post reads, "Lost Society has been locked down by the landlord forviolating their Don't get customers killed clause," which is false and misleading.
34. The title of the July 2, 2010 post reads, "Even the Dallas Sheriff's Department isInvestigating Lost Society," which is untrue and defamatory.
35. Defendant knew or should have known that the headline of the July 2, 2010 post wasfalse, especially since the post itself contained no information regarding an investigation ofLost Society by the Dallas Sheriff’s Department and no such investigation is occurring or hasoccurred.
36 On September 11, 2010, Defendant committed libel and published disparaging anddefamatory words that were untrue about Plaintiffs on a public Internet site,www.barkingdogs.org, owned and maintained by Defendant.
37. The September 11, 2010 post reads, "Lost Society’s Rosales back in pokey for skippinga hearing."
38. Defendant's statements of “Rosales skipped a hearing before a judge.. Not only didhe skip it, but even his attorneys skipped the hearing” and “ Rosales and his attorneyreportedly told the judge they would try to make it to court in a few days, you know he’s kinda
busy renovating the club without any permits” are false and Defendant knew or shouldhave known there was no basis for this statement.
40. The October 30, 2010 post reads, "One dead, one hurt in Lowest Greenvilleshooting"
41. Defendant's statements of “This is the second shooting in less than six months onLowest Greenville. A patron of Lost Society was shot and killed on the Char-Bar parking lot in
early June 2010..” are false and Defendant knew or should have known there was no basisfor this statement.
43. The October 30, 2010 post reads, "Think of those less fortunate - before they getdeported"
44. Defendant's statements of “There's no word on when his former partner and BFF,Fernando Rosales, will be back in detention, but the wheels of justice they do grind slowly.
We are patient.” are false and Defendant knew or should have known there was no basisfor this statement.
46. The December 04, 2010 post reads, "Lost Society - the gift you just can't get rid of"47. Defendant's statements of “For example, hosting Sunday afternoon block parties starting
at 2pm, even though the lease said they could not open for business until 5pm.And the goodnews for Lowest Greenville's other scumbars- Lost Society is going to be providing lots of story
ideas and leadership for at least four more years, if not longer.. If Rosales is trying to pumpup sales by offering lunch, he better have a killer menu and chef in the kitchen (pardon thepun). In fact, it would help if he had a kitchen that could pass a health inspection after yearsof sitting idle since Suede installed it. Their liquor sales ain't doing too hot either, according tothe Texas Comptroller and AlcoholSales.com. In the months after the patron was killed at
Char Bar, sales are down nearly 30% compared to the same months last year. There's stillplenty of time for Lost Society and its scummy owner to provide stories to BD and the local
media, as well as keep the attention of the TABC.” .The above statements are false and Defendants knew or should have known there was nobasis for these statement. Movant requests a evidentiary hearing to allow the court todetermine whether these statements are defamatory and whethere to issue a temorrayinjunction ordering defendants to not repeat these defamatory staements.
DISCUSSION
48. The United States Supreme Court nor the Texas Suprme court have never addressed
the precise question before this Court—whether an injunction prohibiting therepetition of statements found at trial to be defamatory violates the FirstAmendment." (Maj. opn., ante, 57 Cal. Rptr.3d at pp. 327-328, 156 P.3d at p. 346.).The discussion herein is from the California Supreme court case balboa Villiage
Inn v Adelman 156 P. 3d 339, 57 Cal. Rptr. 3d 320, 40 Cal. - Cal: Supreme
, 2007 -49.The First Amendment to the United States Constitution provides that "Congressshall make no law ... abridging the freedom of speech...." This fundamental right tofree speech is "among the fundamental personal rights and liberties which 324*324are protected by the Fourteenth Amendment from invasion by state action."(AdelmanLovell v. Griffin (1938) 303 U.S. 444, 450, 58 S.Ct. 666, 82 L.Ed. 949;Gitlow v. New York (1925) 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138.)Numerous decisions have recognized our "profound national commitment to theprinciple that debate on public issues should be uninhibited, robust, and wide-open." (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 11L.Ed.2d 686.)But the right to free speech, "[although stated in broad terms, ... is not absolute."(Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 134, 87Cal.Rptr.2d 132, 980 P.2d 846 (plur. opn. of George, C.J.).) "Liberty of speech ...is ... not an absolute right, and the State may punish its abuse." (Near v.Minnesota (1931) 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357.) "The FirstAmendment presupposes that the freedom to speak one's mind is not only anaspect of individual liberty—and thus a good unto itself—but also is essential tothe common quest for truth and the vitality of society as a whole. Under ourConstitution, `there is no such thing as a false idea. However pernicious an opinionmay seem, we depend for its correction not on the conscience of judges and juries,but on the competition of other ideas.' [Citation.] Nevertheless, there arecategories of communication and certain special utterances to which the majesticprotection of the First Amendment does not extend, because they `are no essentialpart of any exposition of ideas, and are of such slight social value as a step to truththat any benefit that may be derived from them is clearly outweighed by the socialinterest in order and morality,' [Citation.] [¶] Libelous speech has been held toconstitute one such category, [citation]...." (Bose Corp. v. Consumers Union ofU.S., Inc. (1984) 466 U.S. 485, 503-504, 104 S.Ct. 1949, 80 L.Ed.2d 502; Ashcroftv. Free Speech Coalition (2002) 535 U.S. 234, 245-246, 122 S.Ct. 1389, 152 L.Ed.2d403 ["The freedom of speech has its limits; it does not embrace certain categoriesof speech, including defamation...."]; R.A.V. v. St. Paul (1992) 505 U.S. 377, 382-383, 112 S.Ct. 2538, 120 L.Ed.2d 305; Beauharnais v. Illinois (1952) 343 U.S. 250,255-257, 266, 72 S.Ct. 725, 96 L.Ed. 919 ["Libelous utterances not being within thearea of constitutionally protected speech...."] Chaplinsky v. New Hampshire(1942) 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031.)[1]
50.Defendant in the present case objects to the imposition of an
injunction prohibiting him from repeating statements the trial
court determined were slanderous, asserting the injunction
constitutes an impermissible prior restraint. As explained below,
an injunction issued following a trial that determined that the
defendant defamed the plaintiff that does no more than prohibit
the defendant from repeating the defamation, is not a prior
restraint and does not offend the First Amendment.
51.The prohibition against prior restraints on freedom of
expression is rooted in the English common law, but originally
applied only to freedom of the press. In 1769, Blackstone
explained in his Commentaries on the Laws of England that when
printing first was invented in 1476, the press was entirely
controlled by the government,[2] at first through the granting of
325*325 licenses and later by the decrees of the star chamber: "The
art of printing, soon after its introduction, was looked upon (as
well in England as in other countries) as merely a matter of state,
and subject to the coercion of the crown. It was therefore
regulated with us by the king's proclamations, prohibitions,
charters of privilege and of licence, and finally by the decrees of
the court of starchamber; which limited the number of printers,
and of presses which each should employ, and prohibited new
publications unless previously approved by proper licensers." (4
Blackstone's Commentaries 152, fn. a.) Blackstone observed that
subjecting "the press to the restrictive power of a licenser"
restricted freedom of expression. (Id. at p. 152.) It was only in 1694,
Blackstone explained, after the end of the star chamber, that "the
press became properly free ... and has ever since so continued."
(Id. at p. 152, fn. a.)
52.But the freedom granted to the press to print what it pleased
without first having to obtain permission did not mean that
government could not punish the press if it abused that privilege.
Blackstone observed that in imposing criminal penalties for libel,
"the liberty of the press, properly understood, is by no means
infringed or violated. The liberty of the press is indeed essential to
the nature of a free state: but this consists in laying no previous
restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted
right to lay what sentiments he pleases before the public: to forbid
this, is to destroy the freedom of the press: but if he publishes
what is improper, mischievous, or illegal, he must take the
consequence of his own temerity." (4 Blackstone's Commentaries
151-152.)
It was this former practice of the English government of licensing
the press that inspired the First Amendment's prohibition against
prior restraints: "When the first amendment was approved by the
First Congress, it was undoubtedly intended to prevent
government's imposition of any system of prior restraints similar
to the English licensing system under which nothing could be
printed without the approval of the state or church authorities."
(Tribe, American Constitutional Law (2d ed.1988) § 12-34, p. 1039.)
As another noted commentator has explained: "The First
Amendment undoubtedly was a reaction against the suppression
of speech and of the press that existed in English society. Until
1694, there was an elaborate system of licensing in England, and
no publication was allowed without a government granted
license.... It is widely accepted that the First Amendment was
meant, at the very least, to abolish such prior restraints on
publication." (Chemerinsky, Constitutional Law Principles and
Policies (2d ed.2002) § 11.1.1, p. 892, fn. omitted.)
53.This prohibition against prior restraints of the press led to the
rule that the publication of a writing could not be prevented on
the grounds that it allegedly would be libelous. In 1839, the New
York Court of Chancery refused to prevent the publication of a
pamphlet that allegedly would have defamed the plaintiff, holding
that the publication of a libel could not be enjoined "without
infringing upon the liberty of the press, and attempting to
exercise a power of preventative justice which ... cannot safely be
entrusted to any tribunal consistently with the principles of a free
government." (Brandreth v. Lance (1839) 4 N.Y. Ch. Ann. 330, 8