Back in June I wrote about Raanan Katz, one of the owners of the Miami Heat, and his legal crusade to stop people from being mean to him. I started by talking about his efforts to sue people for merely posting an unflattering picture of him, and finished with his lawyers' threats to sue Marc Randazza and his co-counsel merely for representing Katz' adversaries.
I have an update. It is this: sometimes, in court as in life, the bad guys win.
Recently Raanan Katz secured a jaw-droppingly ridiculous injunction from a compliant Florida judge against one of his adversaries. Marc Randazza and his co-counsel in the matter, Darren Spielman and Robert Kain, had argued quite persuasively that the injunction Katz sought would constitute lawless prior restraint prohibited by decades of precedent and the First Amendment. But Miami-Dade County judge Ellen Leesfield disagreed and issued a broad prior restraint injunction containing very little analysis.
Parts of the injunction might be defensible — for instance, to the extent it prohibits the defendants from trespass on Katz' property or coming near him or his family. But other parts are astoundingly broad and vague:
2. Defendants, IRINA CHEVALDINA, DMITRI CHEVALDINE, JOHN DOE, and all others acting by them, through them, with them, or on their behalf, are enjoined from directly or indirectly interfering in person, orally, in written form or via any blogs or other material posted on the internet or in any media with Plaintiffs' advantageous or contractual business relationships.
Now, the torts of interference with contract or with advantageous business relationships have specific elements and previously defined meanings, and there is caselaw discussing the interplay of the torts with the First Amendment. But framed this way, the injunction is impossibly vague: it forces the defendants to guess in advance at whether their speech will later be deemed by the court as an unprivileged interference with contract or business advantage. Given the deranged and entitled aggression of Katz and his attorneys to date, it seems likely that any criticism of him the defendants post may yield a motion to hold them in contempt of court. Also, the "all others acting by them, through them, with them, or on their behalf" extends the chilling threat to others not even named in the lawsuit. Does the injunction prohibit friends, family, supporters from writing critically about Katz? They are left to guess.
3. Defendants, IRINA CHEVALDINA, DMITRI CHEVALDINE, JOHN DOE, and all others acting by them, through them, with them, or on their behalf, are enjoined from directly or indirectly publishing any blogs or any other written or spoken matter calculated to defame, tortiously interfere with, invade the privacy of, or otherwise cause harm to Plaintiffs.
Once again, this term requires the defendants to guess in advance how any criticism of Katz will later be interpreted — whether it will be seen as defamation, tortious interference, or invasion of privacy. The "otherwise cause harm" kicker at the end transforms it to merely vague and overbroad into the realm of self-parody — plainly read, it suggests that the court has prohibited defendants and some ambiguous category of third persons from saying anything that hurts Katz's fee-fees.
As I said, Judge Leesfield offered barely any analysis in support of this broad prior restraint on the speech of the defendants and unidentified third parties:
This Court has broad discretion to enter injunctive relief, which may include enjoining defamation that is accompanied by other torts. See, e.g., Zimmerman v. D.C.A .. at Welleby, Inc. 505 So. 2d 1371, 1375 (Fla. 4th DCA 1987); Murtagh v. Hurley, 40 So. 3d 62 (Fla. 2d DCA 2010); Azar v. Lehigh Corporation, 364 So. 2d 860, 862 (Fla. 2d DCA 1978); DeRitis v. AHZ Corporation, 444 So. 2d 93 (Fla. 4th DCA 1984).
Those cases simply don't support such a broad injunction. In Zimmerman the court specifically rejected a requested injunction to the extent it sought to enjoin picketing and displaying signs in opposition to a condominium developer, and only approved the injunction to the extent it prohibited specific speech not protected by the First Amendment. Azar upheld a temporary restraining order based on a finding that it was sufficiently specific because it very particularly explained whom the defendant could not contact, and under what circumstances. In DeRitis, the Court of Appeal remanded an injunction drafted much like this one with instructions to make it more specific — and that case involved a business competitor, not an outside critic: "Such an order should be confined within reasonable limitations and phrased in such language that it can with definiteness be complied with, and one against whom the order is directed should not be left in doubt as to what he is required to do."
I often say here that vagueness in a threat of a defamation suit is the hallmark of meritless thuggery. Vagueness in a judicial opinion prohibiting speech is worse — it is the hallmark of judicial indifference to the First Amendment, either calculated to chill protected speech or negligently heedless of its tendency to chill speech. The injunction does not reflect any serious effort to comply with applicable precedent or the First Amendment.
Judging from his litigation strategy, Raanan Katz appears to be someone who thinks that his wealth should insulate him from the criticisms and rebukes that we lesser mortals must endure in America. He's got lawyers willing to pursue that theory on his behalf. In facing off against such people, there will often be setbacks, as reflected in this highly dubious injunction. The remedies are the same as they have always been: appeal, hope that a higher court will hew more closely to applicable precedent and constitutional rights . . . and speak more. Keep writing and talking about Raanan Katz's litigation campaign.
Of course, when you do so, you take certain risks. Raanan Katz and his attorneys — people who think they ought to be able to sue lawyers merely for representing his adversaries — might decide that you are acting "on behalf of" the defendants, and that therefore you are prohibited by law from "otherwise caus[ing] harm" to Katz. Since Katz seems to suffer from a very tender and easily bruised self-regard, such harm is very difficult to avoid. And how will a judge who issued such a broad and unprincipled injunction react if you are hauled before her? That might chill you — which is exactly what Katz, and perhaps the judge, want. What will you do about it?
Updated to add: I missed some of the most preposterous language of the injunction:
The Court, having reviewed the file, heard argument of counsel, considered limited testimony, admitted evidence, and being otherwise duly advised in the premises, makes no findings of facts as to actual violations of law by the Defendants, except that the Defendants have blogged extensively about the Plaintiff and many of these blogs are arguably defamatory. Although ultimately a defamation trial will be held, this Court ORDERS the Defendants not to enter defamatory blogs in the future.
Last 5 posts by Ken White
- In Re: Writ of Pony - September 4th, 2015
- A Tale of Two Consequences For Censorious Asshattery - September 3rd, 2015
- Satire vs. Potentially Defamatory Factual Statements: An Illustration - September 2nd, 2015
- Patterico Prevails: Vexatious Legal Attack on Speech Fails - September 2nd, 2015
- Prior Restraint of Daily Iberian More Outrageous Than We Feared - August 31st, 2015