“Disparaging” speech is protected by the First Amendment. And the First Amendment generally does not allow judges to ban “frivolous” claims through an injunction, because that violates the rule against prior restraints. (Some frivolously false claims can be punished by a defamation lawsuit for damages, but not by a preliminary injunction).
So it’s not surprising that a Louisiana appeals court overturned a trial judge’s injunction against a mother telling her not to make “disparaging” or “frivolous” claims against school employees, in a lawsuit that was brought by the school board.
The ruling came in Livingston Parish School Bd. v. Kellett, decided on May 18 by Louisiana’s Court of Appeal in a unanimous decision:
[T]he School Board discovered that Ms. Kellett, the mother of a child attending Live Oak Elementary School, “repeatedly concealed” electronic devices in her child’s clothing or personal belongings in November 2019. Ms. Kellett purportedly used these devices to “intercept communications by and between faculty, students, and others in the school and/or classroom during school hours and while on school property.” One such device, an AngelSense, had GPS capability to track the child’s whereabouts and also allowed verbal communications between Ms. Kellett and her child. The School Board obtained a temporary restraining order (TRO) on January 27, 2020, then a preliminary injunction on April 8, 2020, prohibiting Ms. Kellett’s use of these devices on school property.
The School Board also accused Ms. Kellett of being critical of the School Board and publicly discussing “her child’s special needs” and individual education plan with the media. Ms. Kellett allegedly maintained a “live web blog and other ongoing social media posts” that involved discussion and disclosure of information related to the School Board, the special education program, and other identified individuals. According to the School Board, these posts have “caused concern for parents of other [Livingston Parish School System] students and have defamed and slandered the reputations of [the School Board] and Live Oak Elementary staff.” The January 27, 2020 TRO and April 8, 2020 preliminary injunction addressed this additional complaint by the School Board. Pertinently, the April 8, 2020 preliminary injunction enjoined, restrained, and prohibited Ms. Kellett from:
… d) … engaging in any form of written, verbal, or physical displays of hostility, anger, or disparagement, and/or from making threats of any physical assault, and/or any disorderly conduct that results in fear or disruption of activities through hostile and inappropriate behavior toward any LPSB [Livingston Parish School Board] member, administrator, faculty or staff at Live Oak Elementary School and/or on any LPSS [Livingston Parish School System] public school bus or other school property, and/or while participating in any educational or other school related business or function, including but in no way limited to any Individual Education Plan (IEP) or Individual Health Plan (IHP) meetings or evaluations required to facilitate the minor child’s special education and health care needs;
f) … making or publishing and/or from engaging in any activity to make, disseminate, publish or broadcast defamatory, slanderous, libelous, frivolous and/or fraudulent claims or statements concerning [the School Board], its faculty, staff and employees, as defined by R.S. 14:47-48, 13:3381(B), directly or by her enlisting the assistance of any other person(s) on her behalf ….
The School Board argues that false statements, like Ms. Kellett’s accusations against the School Board and its employees, which purportedly include allegations of criminal conduct, are not constitutionally protected free speech. Worse, it asserts, the words uttered by Ms. Kellett are defamatory per se. In Kennedy v. Sheriff of East Baton Rouge (La. 2006), the Louisiana Supreme Court recognized that words that expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances, are considered defamatory per se. “When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant.” Thus, before liability can be imposed for the publication of words that are defamatory per se, the defendant must be given an opportunity to rebut the presumption.
These cases and others cited by the School Board, which hold that an abuse of the right of free speech is actionable under Louisiana law, concern liability for the commission of the tort of defamation, not an action to enjoin the utterance of allegedly defamatory speech before it is spoken and before it is judicially determined to be defamatory.
The United States Supreme Court explained the rationale behind prohibiting prior restraint of speech not yet adjudged to be defamatory—a judgment in a defamation case is subject to the “whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted.” The law’s sanctions only become fully operative after the judgment has become final. A prior restraint, by contrast and by definition, has an immediate and irreversible sanction.
Here, there has been no judicial determination that the words allegedly spoken by Ms. Kellett and the accusations purportedly by her made were defamatory or defamatory per se. Several School Board employees and Live Oak Elementary School faculty and staff testified during the March 2020 preliminary injunction hearing. Although each witness denied the truth of various accusations purportedly made by Ms. Kellett, the trial court was not asked to, nor did it, determine that Ms. Kellett, in fact, made these statements and was liable for defamation.
The School Board is correct that the protection of the First Amendment does not extend to defamatory and libelous speech. However, for First Amendment protection to be in jeopardy, there must first be a determination that the words are defamatory. Until words lose First Amendment protection, they are guarded against prior restraint….
We also note that the preliminary injunction issued in favor of the School Board prohibits more than the utterance of allegedly defamatory statements. It prohibits speech that is merely disparaging or “frivolous”—speech that is not within the categories excluded from First Amendment protection.
Therefore, … [t]he trial court abused its discretion by granting this portion of the requested preliminary injunction. The trial court further erred by denying Ms. Kellett’s motion for dissolution of those portions of the April 8, 2020 preliminary injunction that constituted an impermissible prior restraint on Ms. Kellett’s free speech rights….
We grant Ms. Kellett’s motion for dissolution of the preliminary injunction in part and vacate subsection (f) of the April 8, 2020 preliminary injunction in its entirety. We also vacate the portion of subsection (d) of the April 8, 2020 preliminary injunction enjoining, restraining, and prohibiting Ashley Kellett from engaging in any form of written or verbal disparagement toward any Livingston Parish School Board member, administrator, faculty, or staff at Live Oak Elementary School, such that subsection (d) of the April 8, 2020 preliminary injunction is amended and shall state:
d) Enjoining, restraining, and prohibiting Ashley Kellett from engaging in any form of written, verbal, or physical displays of hostility or anger and/or from making threats of any physical assault, and/or any disorderly conduct that results in fear or disruption of activities through hostile and inappropriate behavior toward any LPSB member, administrator, faculty or staff at Live Oak Elementary School and/or on any LPSS public school bus or other school property, and/or while participating in any educational or other school related business or function, including but in no way limited to any Individual Education Plan (IEP) or Individual Health Plan (IHP) meetings or evaluations required to facilitate the minor child’s special education and health care needs; ….
Law professor Eugene Volokh describes why such injunctions are wrong in his articles Overbroad Injunctions Against Speech and Anti-Libel Injunctions.
School boards have also violated the First Amendment by barring parents from reading from vulgar books found in the school library, at school board meetings. They have also violated free speech by telling parents not to criticize school board policies in ways they deem “offensive,” “intolerant,” or “inappropriate.”
Volokh notes that the trial judge’s injunction also banned “displays of hostility or anger” was unconstitutional, too — because it was not limited to fighting words — but that provision may not have been challenged by the mother. The U.S. Supreme Court struck down a ban on racial symbols that causes “anger, alarm, or resentment” in others, even as limited by the Minnesota Supreme Court, in R.A.V. v St. Paul (1992). (The majority in that case cited the fact that it was limited to certain viewpoints, but the concurring justices noted that even apart from that, it was overbroad and went beyond banning unprotected fighting words. Earlier decisions such as Gooding v. Wilson make clear that even hostile, confrontational speech is generally not fighting words and is generally protected by the First Amendment).
