An Invited Fax is Not a Defamatory Publication

Public Domain photo from Wikipedia - http://en.wikipedia.org/wiki/Image:Samfax.jpgIf you’re worried about what someone might say about you in a fax sent to your office, better keep an eye on your fax machine — at least if you gave the sender reasons to think they could fax you there regarding certain matters. It is just such an invitation — two of them, really — that lost plaintiff her defamation case in Martinelli v. International House USA, case no. B197536 (2d Dist. Apr. 11, 2008).

Plaintiff was an attorney whose family also operated an insurance agency and whose niece from Italy was visiting the U.S. on a student visa. Plaintiff enrolled her niece in English classes at defendant International House. Defendant wrote a letter to U. S. Immigration and Customs Enforcement claiming that the niece had violated her visa and that it intended to report plaintiff to the state bar for asking it to ignore ICE regulations. Defendant faxed a copy of the ICE report to plaintiff’s family’s insurance agency addressed to plaintiff’s daughter, who worked in the law office. Plaintiff’s daughter received and read it. Plaintiff responded with a letter on her law office letterhead. Defendant next faxed her at the number on the letterhead with a letter that, like the ICE report, claimed she had asked defendant to ignore ICE regulations. Plaintiff’s daughter retrieved the letter from the fax machine and read it.

Defendant obtained summary adjudication of the defamation claims based on the two faxes on the ground that neither constituted a publication to a third party. The Court of Appeal affirms.

The fax to the insurance agency was not a publication because the niece provided the number as a contact point for defendant to contact plaintiff on matters of the niece’s schooling and immigration status, both of which defendant knew plaintiff to be heavily involved in, and the niece had advised defendant that plaintiff’s daughter “was responsible for the daily activities in [plaintiff’s] office and worked closely with [plaintiff],” making it reasonable for defendant to believe that communicating with the daughter at that number was the equivalent of communicating directly with plaintiff.

The fax directly to plaintiff’s law office was an easier call for the court. Because plaintiff’s letter to defendant to dispute its charges was on law firm letterhead, including a fax number, she invited return correspondence to that fax number and “undertook the burden to protect her own confidentiality.”

California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional

In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining whether an injunction restraining defamation may be issued, therefore, it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory.”

The majority concludes from U. S. Supreme Court decisions upholding injunctions against speech adjudicated to be obscene or in violation of gender discrimination laws that these decisions were consistent in 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.” Finally, noting that the Sixth Circuit Court of Appeals and the supreme courts of Ohio, Georgia and Minnesota had upheld injunctions against speech already proven to be defamatory, the majority holds that “following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.”

The Court nonetheless upholds the Court of Appeal’s decision striking down the injunction, but only because the majority found the injunction too broad. It remanded the case to allow the injunction to be tailored more narrowly and consistent with its opinion.

Justices Kennard and Werdegar, in two solo “concur and dissent” opinions, agree that the injunction should be struck down, but would not remand to allow a more narrowly tailored injunction to replace it. Neither would allow any prior restraint in the absence of a compelling state interest or public policy in tension with free speech rights, and neither found such a competing consideration in this case.