Crime novelist Patricia Cornwell may legitimately feel threatened by the vitriol of a man who has spoken out against her on the Internet. But a Virginia judge went too far in restraining Leslie Sachs's future speech.

Since Sachs accused Cornwell of plagiarizing one of his books, he has waged an Internet vendetta against her, recently claiming that the prosecutor of “Scooter” Libby is seeking to indict her on charges of fraud, bribery and extortion. Cornwell sued Sachs in February for libel damages and injunctive relief.

Prior restraints on speech are nearly always impermissible under the First Amendment and the general legal rule is that “equity will not enjoin a libel or slander.”

But in a June 6 order, U.S. District Judge Norman K. Moon found Sachs had made no fewer than 45 false statements about Cornwell and granted her a sweeping preliminary injunction that bars him not only from republishing any of those statements but also from

making any statements that reference Plaintiff or statements that would lead a reasonable person to conclude that Defendant is describing Plaintiff if such statements refer to [such matters as the supposed federal indictment].

Sachs, who claims to be living in Belgium, did not appear for the May 22 preliminary injunction hearing. “Defendant was provided adequate notice of the preliminary injunction hearing and had an opportunity to present evidence or cross-examine Plaintiff’s witnesses to refute Plaintiff’s contentions that [his] statements are defamatory,” Moon said.

The judge also relied on a recent California Supreme Court ruling, which held that a Newport Beach woman could be barred from repeating defamatory statements about a restaurant.

“[P]reventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published is far different from issuing a post-trial injunction after a statement that already has been uttered has been found to constitute defamation,” Moon quoted the court as saying in Balboa Island Village Inn v. Lemen, 40 Cal.4th 1141 (2007).

But the 5-2 majority in Lemen stressed that a restraint on republication of statements is only permissible after a trial. A preliminary injunction hearing –- even with the defendant present –- is not a trial and, as the author of the Lemen decision said in another case,

a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker’s or publisher’s First Amendment claims. DVD Copy Control Assn. v. Bunner, 31 Cal.4th 864 (2003).

Moon denied Cornwell's request to consolidate the trial of her case with the injunction hearing. But he did grant her alternative motion to take evidence at the hearing.

“Entry of the requested injunction after the full and fair evidentiary adversarial proceeding that the plaintiff has requested obviates the legal impediments to the entry of an injunction in the absence of such a proceeding,” Cornwell argued in the motion.

Lemen and other case law, however, suggests that only a trial constitutes a “full and fair” adjudication of the merits.

By Matthew Heller
6/10/07