Court Upholds “Harassment Restraining Order” Requiring Removal of Alleged Libel + Restricting Future Posts About Plaintiff

From B.P. v. A.Z., decided last week by the California Court of Appeal, in an opinion by Justice Martin Buchanan, joined by Justices Judith McConnell and Julia Kelety; note that the upheld order isn’t limited to defamation, and indeed bans future postings even if they aren’t defamatory (unless they “concern[] [A.Z.’s] personal observations regarding [B.P.]”):

A.Z. appeals from an order granting B.P.’s request for a civil harassment restraining order (CHRO) on behalf of himself and his spouse P.I…. The dispute apparently originated from two other cases, one in which B.P. [an attorney] represented a party who sued A.Z. in a consumer fraud matter relating to her sales of German Shepherd puppies, and another in which A.Z. sued B.P. for defamation for accusing her of being an “animal abuser.” …

A.Z. did not file a response to the CHRO request and did not appear at the … hearing…. According to the minute order, B.P. and P.I. appeared with two witnesses. After hearing testimony and reviewing exhibits, Judge [Rebecca] Zipp granted a three-year CHRO against A.Z. and imposed personal conduct and stay-away orders and a prohibition on possession of firearms, ammunition, and body armor.

Judge Zipp also ordered A.Z. to remove certain internet postings and explained this portion of her order as follows: “A court may restrain speech the court has adjudicated as unlawful, harassing, or defamatory. [¶] … [¶] [A.Z.]’s creation of the yelp web page for [B.P.] Law Office, as well as her posts about [B.P.] on [AZ].org constitute a knowing and willful course of conduct directed at [B.P.] that seriously alarms, annoys, and/or harasses him. These pages serve no legitimate purpose. I find that [A.Z.] created these sites and pages specifically to disseminate defamatory statements about [B.P.], and that [A.Z.] did use them solely to disseminate defamatory statements about [B.P.]. [¶] [A.Z.] is ordered to remove these postings within 24 hours of being served with the court’s civil harassment restraining order. [¶] [A.Z.] is further ordered to desist from posting additional content online regarding [B.P.], including his likeness, for the duration of the order, unless such content concerns her personal observations regarding [B.P.]. [A.Z.] is prohibited from making knowingly false statements about her legal matters involving [B.P.].” …

A.Z. argues that the CHRO violated her First Amendment right to free speech. As the trial court explained, however, “speech that constitutes ‘harassment’ within the meaning of [Code of Civil Procedure] section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief.” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (Cal. App. 2005).) The trial court found that A.Z.’s posts and Yelp web page for “[B.P.] Law Office” constituted “a knowing and willful course of conduct directed at B.P. that seriously alarms, annoys and/or harasses him.” Accordingly, the trial court properly directed A.Z. to remove these postings and desist from further postings about B.P., except those based on her own personal observations. “[T]he First Amendment does not guarantee the right of harassment of another, even where the harassment is accomplished through speech that might otherwise be protected.” (Doe v. McLaughlin (Cal. App. 2022), citing Brekke v. Wills (Cal. App. 2005); R.D. v. P.M. (Cal. App. 2011).

For more on the person who appears to be B.P., see his firm page; he had also run for San Diego City Attorney in 2016 and for San Diego City Council in 2012 and 2018. (The parties’ names are freely available in the docket and not sealed, though the court chose to use initials in the opinion.) For more on the person who appears to be A.Z., see here; she had run for the House of Representatives in Missouri in 2012 as a Constitution Party candidate.

For my thinking on such orders, see Anti-Libel Injunctions and Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases).