Kentucky Supreme Court strikes down prior restraint

The Kentucky Supreme Court ruled last week that a court order preemptively prohibiting a private party from making purportedly defamatory comments is unconstitutional. In so ruling, however, the court declared that once a court makes a final determination that particular expression is defamatory, it may restrain future speech of the same character — provided that the case does not involve a media defendant, a public figure or a matter of public interest.

The Kentucky high court’s ruling came in the case of Hill v. Petrotech Resources Corporation, which arose out of a business investment dispute. Oil and gas drilling company Petrotech and its sole shareholder sued H.C. "Blue" Hill for defamation and invasion of privacy after an investor in Petrotech hired Hill’s company to recover the investor’s investment. According to the Kentucky Supreme Court’s opinion, Hill’s company used “highly aggressive collection techniques” on behalf of its investor client, including contacting Petrotech’s customers and clients and posting on the Internet accusations that Petrotech and its sole shareholder were engaged in illegal conduct.

At Petrotech’s request, the trial court granted a temporary injunction prohibiting Hill from making further defamatory comments. The Kentucky Court of Appeals allowed the injunction to remain in effect and Hill appealed to the state’s high court.

The Kentucky Supreme Court dissolved the temporary injunction. Calling the trial court’s order a “broad-sweeping and vaguely worded injunction against future expression,” the state’s high court ruled that the order was an improper prior restraint that violated the First Amendment of the U.S. Constitution and Section Eight of the Kentucky Constitution.

Mathew Baker, the attorney for defendant Hill, said that he and his client were “very grateful for the thoughtful and well-reasoned opinion” reversing the prior restraint order.

Notably, the court’s opinion also declared that there were certain instances in which prospective restraints on speech would be allowed in defamation cases. Announcing that it was adopting a “modern rule” on the use of such injunctions on speech, the court stated that once speech is subject to a final judicial determination that it is false, a court may enjoin future speech of the same false character if the speech concerns a private matter between non-media defendants.

“[D]efamatory speech may be enjoined only after the trial court’s final determination by a preponderance of the evidence that the speech at issue is, in fact, false, and only then upon the condition that the injunction be narrowly tailored to limit the prohibited speech to that which has been judicially determined to be false,” Justice Daniel J. Venters declared for the court.

Venters’ opinion emphasized that the court’s discussion of this new “modern rule” did not apply to “injunctions that may relate to media defendants, public figures, and matters of public interest,” commenting that “litigation involv[ing] these parties and issues” implicates an “entirely separate set of rules.”

Kentucky media law attorney Jon Fleischaker said that the court’s efforts to limit its ruling were very important. Because the court’s opinion applies only to cases involving so-called “private” defamation and allows restrictions on speech only after a final determination of the speech’s falsity, the court’s opinion should have little, if any, impact on journalists — as long as the court does not extend the opinion’s reach to media defendants, Fleischaker believes. By clearly limiting the “modern rule” to non-media defendants, the court’s opinion “should stop plaintiffs from seeking injunctions in cases involving the media," Fleischaker said.

Fleischaker also agreed with the court’s decision to reverse the temporary restraining order. “A hearing on a motion for a temporary injunction, normally done quickly and without full discovery, is not adequate to protect the important rights at stake in this type case,” Fleischaker said be e-mail. “In addition, the injunction was far too broad and vague and clearly was intended to restrain more th[an] the specific speech at issue in the case.“