Kinney v. Barnes

delivered the opinion of the Court.

A hallmark of the right to free speech under both the U.S. and Texas Constitutions is the maxim that prior restraints are a heavily disfavored infringement of that right. So great is our reticence to condone prior restraints that we refuse to allow even unprotected speech to be banned if restraining such speech would also chill a substantial amount of protected speech. This danger is before the Court today, as we are asked whether a permanent injunction restraining future speech is a constitutionally permissible remedy for defamation following an adjudication on the merits. On the one hand, it is well settled that defamation is an abuse of the privilege to speak freely; our holding today does not disturb that. On the other, it is also well settled that prior restraints are rarely permitted in Texas due to their capacity to chill protected speech.

The issue at hand is more specifically presented as whether a permanent injunction is an unconstitutional prior restraint where the injunction (1) requires the removal or deletion of speech that has been adjudicated defamatory, and (2) prohibits future speech that is the same or similar to the speech that has been adjudicated defamatory. We hold that, while the former does not enjoin future speech and thus is not a prior restraint, the latter constitutes a prior restraint that impermissibly risks chilling constitutionally protected speech. Because the court of appeals failed to recognize this distinction in affirming summary judgment for the defendant, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

I. Background

BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG’s President, Andrew Barnes, posted a statement on the websites JDJournal.com and Em-ploymentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. Describing allegations in a lawsuit Barnes had previously filed against Kinney in California, Barnes stated:

The complaint also alleges that when Kinney was an employee of BCG Attorney Search in 2004, he devised an unethical kickback scheme, attempting to pay an associate under the table at Preston, Gates and Ellis (now K & L Gates) to hire one of his candidates. Barnes says that when he discovered this scheme, he and other BCG Attorney Search recruiters immediately fired Kinney. The complaint in the action even contains an email from Kinney where he talks about paying the bribe to an associate at Preston Gates in return for hiring a candidate.

The posted statements prompted Kinney to sue Barnes, BCG, and two other compá-nies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on *90the merits.1 Specifically, Kinney sought an order requiring Barnes to (a) remove the allegedly defamatory statements from Barnes’s websites, (b) contact third-party republishers of the statements to have them remove the statements from their publications, and (c) conspicuously post a copy of the permanent injunction, a retraction of the statements, and a letter of apology on the home pages of Barnes’s websites for six months. Kinney has since abandoned his demand for an apology and retraction.

Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution. The trial court granted the motion, and the court of appeals affirmed without addressing whether Barnes’s statements were defamatory. We too will limit our review to the constitutionality of Kinney’s requested relief and assume only for purposes of that analysis that the complained-of statements are defamatory.

II. Discussion

“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.” Tex. Const, art. I, § 8. Enshrined in Texas law since 1836,2 this fundamental right recognizes the “transcendent importance of such freedom to the search for truth, the maintenance of democratic institutions, and the happiness of individual men.” TEX. CONST, art. I, § 8 interp. commentary (West 2007). Commensurate with the respect Texas affords this right is -its skepticism toward restraining speech. While abuse of the right to speak subjects a speaker to proper penalties, we have long held that “pre-speech sanctions” are presumptively unconstitutional. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992); see also Ex parte Tucker, 110 Tex. 335, 220 S.W. 75, 76 (1920).

The First Amendment of the U.S. Constitution is similarly suspicious of prior restraints, which include judicial orders “forbidding certain communications” that are “issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993) (citation and internal quotation marks omitted). The U.S. Supreme Court has long recognized that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); see also id. (“If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” (quoting A. Biokel, the Morality of Consent 61 (1975))). As such, they “bear[ ] a heavy presumption against [their] constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). This cornerstone of First Amendment protections has been reaffirmed time and again by the Supreme Court,3 this Court,4 Texas courts *91of appeals,5 legal treatises,6 and even popular culture.7

Nevertheless, freedom of speech is “not an absolute right, and the state may punish its abuse.” Near v. Minnesota, 288 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357 (1981) (citation and internal quotation marks omitted). To that end, the common law has long recognized a cause of action for damages to a person’s reputation inflicted by the publication of false and defamatory statements. Neely v. Wilson, 418 S.W.3d 52, 60 (Tex.2013) (citing Milkovich v. Lorain Journal Co., 497-U.S. 1, 11, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)); see also Ex parte Tucker, 220 S.W. at 76 (“There can be no justification for the utterance of a slander. It cannot be too strongly condemned.”). The U.S. Supreme Court and this Court have been firm in the conviction that a defamer cannot use her free-speech rights as an absolute shield from punishment.

This case asks us to examine these conflicting principles, and involves a two-part inquiry. First, we examine whether a permanent injunction against defamatory speech, following a trial on the merits, is a prior restraint. Kinney contends that such a “post-trial remedial injunction” is not properly characterized as a prior restraint at all, much less one that is constitutionally impermissible. Barnes maintains that a permanent injunction against future speech, whether issued before or after the conclusion of a defamation trial', is necessarily a prior restraint. If the permanent injunction is a prior restraint, we must then determine whether it overcomes the heavy presumption against its constitutionality. Kinney argues that defamatory speech is not protected and that enjoining its continuation is therefore permissible. Barnes responds that the presumption cannot be overcome because such injunctions pose too great a risk to free speech.

We first acknowledge the parties’ arguments regarding whether Article I, Section 8 of the Texas Constitution affords greater free-speech protection than the First Amendment of the ■ U.S. Constitution. Compare Tex. Const, art. I, § 8 (“Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”), with U.S. Const. Amend. 1 (“Congress shall make no law ... abridging the freedom of speech, or of the press.... ”). Barnes argues that we have consistently interpreted Texas’s constitutional recognition of free-speech rights more broadly *92than its federal counterpart. See Davenport, 834 S.W.2d at 8-9 (“[0]ur free speech provision is broader than the First Amendment.”). In Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc., however, we clarified that “Article 1, Section 8 may be more protective of speech in some instances than the First Amendment, but if it is, it must be because of the text, history, and purpose of the provision, not just simply because.” 975 S.W.2d 546, 559 (Tex.1998) (first emphasis added) (internal citation omitted). We further concluded: “We know of nothing to suggest that injunctions restricting speech should be judged by a different standard under the state constitution than the First Amendment.” Id.

We need not determine whether the Texas Constitution provides greater protection than the First Amendment on the specific issue presented to us, as the U.S. Supreme Court has not definitively addressed it. Rather, we reiterate the unremarkable proposition that in interpreting our own constitution, we “should borrow from well-reasoned and persuasive federal procedural and substantive precedent when this is deemed helpful, but should never feel compelled to parrot the federal judiciary.” Davenport, 834 S.W.2d at 20. We look to federal cases for guidance, not as binding authority. Id.

A. Classification of a Post-Adjudication Permanent Injunction Against Defamatory Speech as a Prior Restraint

The first issue we must dispose of is whether a permanent injunction prohibiting future speech related to statements that have been adjudicated defamatory is a prior restraint. If it is not, then our constitutional concerns regarding the use of prior restraints are inapplicable. This question highlights the distinction Kinney emphasizes between permanent injunctions on speech adjudicated defamatory and pretrial temporary injunctions on allegedly defamatory speech. Kinney argues that this distinction is meaningful. We disagree — as to the question presented, it is a distinction without a difference.

We have squarely held that a temporary injunction prohibiting allegedly defamatory speech is an unconstitutional prior restraint, but we have not specifically addressed the propriety of a post-adjudication permanent injunction in a defamation case. See Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983) (per curiam). In Hajek, the plaintiff sought and obtained a temporary injunction restraining the defendant from driving his car around the community with a message painted on all four sides that Bill Mowbray Motors sold him a “lemon.” Id. at 254. We reversed, holding that the injunction was a prior restraint in violation of the Texas Constitution. Id. at 255. Accordingly, we overturned the lower courts’ decisions granting the injunction.

Our decision in Hajek rested on the well-settled legal principles laid out in Ex parte Tucker. In that case, the trial court enjoined the members of a worker’s union from “vilifying, abusing, or using ... epithets” against their employer. 110 Tex. 335, 220 S.W. 75, 75 (1920). In overturning the injunction, we relied on the dichotomy between the Texas Constitution’s affirmative grant of the liberty to speak without fear of curtailment and the commensurate responsibility inherent in that right. Id. at 76. We stated that “the abuse of the privilege ... is not to be remedied by denial of the right to speak, but only by appropriate penalties for what is wrongfully spoken.” Id. Accordingly, we held that the injunction was beyond the power of the trial court to issue. Id.

*93Kinney contends that Hajek and Tucker classify as prior restraints only temporary injunctions against speech that is alleged, but not proven, to be defamatory, and that these cases therefore do not apply to a post-adjudication permanent injunction. But our holding that the injunctions were prior restraints did not rest on their pretrial issuance. Rather, we took issue with the trial courts’ decision to remedy the defendants’ abuse of their liberty to speak by preventing their future exercise of that liberty. Id.; Hajek, 647 S.W.2d at 255.

In this case, Kinney’s request for injunctive relief may be broken down into two categories. First, as reflected in the pleadings, Kinney would have the trial court order Barnes to remove the statements at issue from his websites (and request that third-party republishers of the statements do the same) upon a final adjudication that the statements are defamatory. Such an injunction does not prohibit future speech, but instead effectively requires the erasure of past speech that has already been found to be unprotected in the context in which it was made. As such, it is accurately characterized as a remedy for one’s abuse of the liberty to speak and is not a prior restraint. See Hajek, 647 S.W.2d at 255.8

As Kinney confirmed at oral argument, however, his request is not so limited. Kinney would also have the trial court permanently enjoin Barnes from making similar statements (in any form) in the future. That is the essence of prior restraint and conflates the issue of whether an injunction is a prior restraint with whether it is constitutional. As Professor Chemerinsky has aptly explained:

Courts that have held that injunctions are not prior restraints if they follow a trial, or if they are directed to unprotected speech, are confusing the question of whether the injunction is a prior restraint with the issue of whether the injunction should be allowed. Injunctions are inherently prior restraints because they prevent future speech.

Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L.Rev. 157,165 (2007); see also Oakley, Inc. v. McWilliams, 879 F.Supp.2d 1087, 1089 (C.D.Cal. 2012) (“Injunctions against any speech, even libel, constitute prior restraints: they prevent[ ] speech before it occurs, by requiring court permission before that speech can be repeated.” (citation and internal quotation marks omitted)). Even in the few cases in which the Supreme Court has upheld a content-based injunction against speech, it has not been because the injunction was not a prior restraint, but because under the circumstances the restraint was deemed constitutionally permissible. See Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-42 [77 S.Ct. 1325, 1 L.Ed.2d 1469] (1957) (beginning its analysis with the notion that “ ‘the protection even as to previous restraint is not absolutely unlimited,”’ while recognizing that “the limitation [on such protection] is the exception” (quoting Near, 283 U.S. at 716 [51 S.Ct. 625])). Accordingly, we hold that an injunction against future speech based on an adjudication that the same or *94similar statements have been adjudicated defamatory is a prior restraint.9

However, “[¡labeling respondents’ action a prior restraint does not end the inquiry.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1289, 43 L.Ed.2d 448 (1975). Notably, the U.S. Supreme Court has never approved a prior restraint in a defamation case. Chemerinsky, 57 Syracuse L.Rev. at 167; see, e.g., Near, 283 U.S. at 706, 51 S.Ct. 625 (invalidating statute allowing courts to enjoin publication of future issues of newspaper because previous editions were found to be “ ‘chiefly devoted to malicious, scandalous and defamatory articles’ ”). However, the Court has not decided whether the First Amendment prohibits the type of injunction at issue in this case, leaving that question unsettled.10 Turning to the issue of whether the injunction against future speech sought by Kinney, though a prior restraint, is nevertheless permissible under the Texas Constitution, we hold that it is not.

B. Prior Restraints on Future Speech Related to Statements That Have Been Adjudicated Defamatory Violate the Texas Constitution

Again, prior restraints bear a heavy presumption against their constitutionality. Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The proponent of such restraints thus “carries a heavy burden of showing justification for the imposition of such a restraint.” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971). While prior restraints are plainly disfavored, however, the phrase itself is not a “self-wielding sword,” but a demand for individual analyses of how prior restraints will operate. Kingsley Books, 354 U.S. at 441-42, 77 S.Ct. 1325. In examining the propriety of injunctive relief, then, we bear in mind the category of speech sought to be enjoined and the effect of such relief on a person’s liberty to speak freely.11

1. Texas Law Comports with the Traditional Rule That Injunctive Relief Is Not Available in Defamation Actions

*95“The traditional rule of Anglo-American law is that equity has no jurisdiction to enjoin defamation.” Chemerinsky, 57 Syracuse L.Rev. at 167 (explaining that the rule dates back to eighteenth-century England and was adopted “with remarkable uniformity” by nineteenth-and twentieth-century American courts); see also, e.g., Kramer v. Thompson, 947 F.2d 666, 677 (3d Cir.1991) (“[T]he maxim that equity will not enjoin a libel has enjoyed nearly two centuries of widespread acceptance at common law.”). Our treatment of the temporary injunctions in Ex parte Tucker and Hajek, and more recent decisions on prior restraints, leave no doubt that the current state of Texas law is in accordance with this traditional rule with regard to future speech.

We have indicated that a prior restraint may be permissible “only when essential to the avoidance of an impending danger,” Davenport, 834 S.W.2d at 9, and only when it is the least restrictive means of preventing that harm, Ex parte Tucci, 859 S.W.2d 1, 6 (Tex.1993); see also Hajek, 647 S.W.2d at 255; Ex parte Tucker, 220 S.W. at 76.12 We explained in Tucker the significant distinction between curtailing a person’s liberty of speech, which the Texas Constitution forbids, and penalizing a person’s abuse of that liberty, which the Constitution allows:

The purpose of [Article I, Section 8] is to preserve what we call ‘liberty of speech’ and ‘the freedom of the press,’ and at the same time hold all persons accountable to the law for the misusé of that liberty or freedom. Responsibility for the abuse of the privilege is as fully emphasized by its language as that the privilege itself shall be free from all species of restraint. But the abuse of the privilege, the provision commands, shall be dealt with in no other way. It is not to be remedied by denial of the right to speak, but only by appropriate penalties for what is wrongfully spoken. Punishment for the abuse of the right, not prevention of its exercise, is what the provision contemplates. There can be no liberty in the individual to speak, without the unhindered right to speak. It cannot co-exist with a power to compel his silence or fashion the form of his speech. Responsibility for the abuse of the right, in its nature pre-supposes freedom in the exercise of the right. It is a denial of the authority, anywhere, to prevent its exercise.

220 S.W. at 76. Citing Tucker, we plainly stated in Hajek that “[djefamation alone is not a sufficient justification for restraining an individual’s right to speak freely.” 647 S.W.2d at 255. Our courts of appeals have continued to recognize that the appropriate remedy for defamation is damages, not injunctive relief. See, e.g., Cullum v. White, 399 S.W.3d 173, 189 (Tex.App.-San Antonio 2011, no pet.); Brammer v. KB Home Lone Star, LP, 114 S.W.3d 101, 108 (Tex.App.-Austin 2003, no pet.) (“Although the specific damages sustained from defamation and business disparagement-related activity is often difficult to measure, it is nonetheless well established that this type of harm does not rise to the level necessary for the prior restraint to withstand constitutional scrutiny.”).

2. Injunctions Cannot Effectively Remedy the Harm Caused by Defamation Without Chilling Protected Speech

*96Contending that Hajek “ignored decades of intervening precedent from the U.S. Supreme Court,” Kinney relies on Supreme Court case law upholding injunctions in the context of obscenity and commercial speech to argue that post-trial injunctions against defamatory speech are consistent with the First Amendment. In Kingsley Books, for example, the Supreme Court considered a New York statute that allowed municipalities to bar the continued sale of written and printed materials adjudicated obscene. 354 U.S. at 437, 77 S.Ct. 1325. The Supreme Court upheld the statute, holding that it “studiously withholds restraint upon matters not already published and not yet found offensive.” Id. at 445, 77 S.Ct. 1325. By contrast, the Court held, the statute struck down in Near v. Minnesota had empowered the courts “to enjoin the dissemination of future issues of a publication because its past issues had been found offensive.” Id.

And in Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, the Supreme Court upheld an administrative order prohibiting a newspaper from continuing to run gender-specific help-wanted ads pursuant to the enforcement of a local anti-discrimination law. 413 U.S. 376, 379, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973). The Court concluded that the speech at issue constituted illegal commercial speech, holding that the injunction “d[id] not endanger arguably protected speech” and was therefore permissible. Id. at 390, 93 S.Ct. 2553.

Even after these decisions, several courts addressing the issue presented here have continued to adhere to the traditional rule that defamation alone will not justify an injunction against future speech. See Metro. Opera Ass’n v. Local 100, 239 F.3d 172, 177 (2d Cir.2001); Oakley, Inc. v. McWilliams, 879 F.Supp.2d 1087, 1090 (C.D.Cal.2012); Tilton v. Capital Cities/ABC Inc., 827 F.Supp. 674, 681 (N.D.Okla.1993) (“The fundamental law of libel in both Oklahoma and Texas is that monetary damages are an adequate and appropriate remedy and that injunctive relief is not available.”); New Era Publ’ns Int’l v. Henry Holt & Co., 695 F.Supp. 1493, 1525 (S.D.N.Y.1988) (“[W]e accept as black letter that an injunction is not available to suppress defamatory speech.”); Demby v. English, 667 So.2d 350, 355 (Fla.Ct.App.1995) (per curiam) (noting that the claim for injunctive relief was “frivolous” in light of the “well-established rule that equity will not enjoin either an actual or a threatened defamation” (citation and internal quotation marks omitted)); Willing v. Mazzocone, 482 Pa. 377, 393 A.2d 1155, 1157-58 (1978) (holding that a permanent injunction against defamatory speech violated a provision of the Pennsylvania Constitution that is substantially similar to Article I, Section 8 of the Texas Constitution). By contrast, a small number of states have cited the Supreme Court cases referenced above in holding that narrowly drawn, post-trial injunctions against defamatory speech are constitutional. See Hill v. Petrotech Res. Corp., 325 S.W.3d 302 (Ky.2010); St. James Healthcare v. Cole, 341 Mont. 368, 178 P.3d 696 (2008); Balboa Island Vill. Inn, Inc. v. Lemen, 40 Cal.4th 1141, 57 Cal.Rptr.3d 320, 156 P.3d 339 (2007); Retail Credit Co. v. Russell, 234 Ga. 765, 218 S.E.2d 54 (1975); O'Brien v. Univ. Cmty. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975); see also Lothschuetz v. Carpenter, 898 F.2d 1200 (6th Cir.1990).

In Balboa, for example, the trial court found that Lemen had made defamatory statements about the Balboa Village Inn and issued a permanent injunction prohibiting her from engaging in numerous acts, including repeating those statements. 57 Cal.Rptr.3d 320, 156 P.3d at 342. The California Supreme Court described *97Kingsley Books and Pittsburgh Press as holding that “an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Id., 57 Cal.Rptr.3d 320, 156 P.3d at 346-47. The court concluded that, while the particular injunction at issue in Balboa was overbroad, a court may issue an injunction prohibiting a person from repeating statements that have been adjudicated defamatory following a trial on the merits. Id., 57 Cal.Rptr.3d 320, 156 P.3d at 349-50.

We do not read Kingsley Books and Pittsburgh Press so broadly and decline to extend their holdings to the defamation context. To that end, we agree with the district court in Oakley that injunctions against defamation are impermissible because they are necessarily “ineffective, overbroad, or both.” 879 F.Supp.2d at 1090. That is, “[a]ny effective injunction will be overbroad, and any limited injunction will be ineffective.” Chemerinsky, 57 SYRACUSE L.Rev. at 171.

On the one hand, for any injunction to have meaning it must be effective in its purpose. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (assessing “the probable efficacy of prior restraint on publication as a workable method” of accomplishing its purpose); N.Y. Times Co. v. United States, 403 U.S. 713, 744, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (Marshall, J., concurring) (“It is a traditional axiom of equity that a court of equity will not do a useless thing-”). The narrowest of injunctions in a defamation case would enjoin the de-tainer from repeating the exact statement adjudicated defamatory. Such an order would only invite the defamer to engage in wordplay, tampering with the statement just enough to deliver the offensive message while nonetheless adhering to the letter of the injunction. Kinney admitted as much at oral argument, agreeing that the injunction he is. seeking would extend to speech that . was “substantially the same” or made “non-substantive changes” to the statement that has been adjudicated defamatory.

But expanding the reach of an injunction in this way triggers the problem of overbreadth. Overbroad restrictions on speech are unconstitutional because of their potential to chill protected speech. See Comm’n for Lawyer Discipline v. Benton,