REPLY BRIEF FOR APPELLANT, MICHELANGELO DELFINO
"REPLY BRIEF OF APPELLANT, MICHELANGELO DELFINO
1. "[T]HE COURT IS TROUBLED BY THE EXTENT TO WHICH PLAINTIFFS' ATTORNEYS EMBELLISH THE FACTS BEFORE THE COURT"
Judge Whyte 1
This appeal is a serious matter, involving serious issues [Constitutional rights], and pursued seriously by Appellant's counsel. It is disheartening to see the puerile, trite, and often incorrect or untrue, efforts that Appellee's counsel employ to try to poison 2 the minds of the reader's of Appellees' Brief to the real issues, the true facts, and substantive law of this case. "Embellishment" is the polite way of stating that Appellees have engaged in gross mischaracterization of the facts and the law, a practice that they have persistently engaged whenever they have had neither the law or the facts on their side. The injunction should be dissolved.
1. Order granting TRO, 3/20/00, Docket 371, CR page 2186
2. i.e., "Internet terrorism" [Appellees' Brief, page 3, line 3], "unlawful Internet campaign" [p2,L15], "false, absive, and highly personal statements" [p3L5], "campaign of harassment on the Internet" [p7L13], "flagrant defamation" [p8L3], "fraudulent conduct" [p13L4], and "bizarre views" [p13L3].
2.THEIR SO-CALLED "FACTS" ARE MERELY ALLEGATIONS
Appellees repeat "fighting-word" phraseology over and over, obviously intending that the readers take their statements to be gospel truth, in a not-so-subtle attempt to assassinate Dr. DelfinoÌs character in the eyes of this court. What appellees have actually done in their brief is to assert their allegations as facts by merely referencing those "allegations" that are contained in their unverified pleadings, representing them to this court as being "established" facts, when they are not. They cite various inapposite cases which have as their foundational basis, unlike here, the prior trial determination (usually a jury verdict) of defamation before issuance of an injunction. Realizing that they are missing this key element (i.e., a prior trial decision), the appellees then make the incredible statement that "the District Court [had] found to be defamatory" certain Internet postings in this case. [P4L4]. Such a statement is not even close to being the truth. In fact, it is a lie. The District Court never found any of the postings to be defamatory, and, in fact, denied appellees motion for summary judgment on that issue. Would appellees do this if they had either the facts or the law on their side and if they werenÌt so desperate to win at any cost?
To gain sympathy, they feign that their character is being impugned by Delfino's Internet postings, when in fact, it is appellees who have engaged in the carefully crafted and meticulously executed character assassination of Dr. Delfino, repeated time after time in their briefs, and not based on established facts but upon innuendo, surmise, speculation and, of course, "embellishment."
For instance, they claim harassment occurring back in 1994, (Appellees Brief, page 6) without ever advising this court that such conduct was denied by Dr. Delfino under penalty of perjury, and for a matter that no hearing (internal or judicial) was ever held, and from which no employment action was ever brought by Varian against Dr. Delfino. They also fail to state that the "letter" was found on other "networked" computers in the laboratory, not just Delfino's, and that everyone in the lab had access to those computers, including Dr. Delfino's computer. They merely conclude that "evidence suggests" or that "there was reason to believe" Dr. Delfino was somehow responsible. But as discussed in DSER Exhibit 1, pages 2 through 5, there has never been a single corroborating witness to any accusation by plaintiff Felch, and there have been numerous eyewitnesses to come forward who dispute her accusations. Moreover, Felch's claim of "lab sabotage" was investigated and found not to be, and her claims of rude facial gestures by Delfino were never seen on any of the five weeks of secret videotape directed at the bathroom comings and goings of Doctor Delfino. All appellees have ever had were unsupported accusations. And as their brief reveals, they have embellished those accusations to accuse Dr. Delfino of "terrorist" activity. Of course, that is why we have trials, to resolve disputes, to get to the truth, and to avoid prior restraints on free, albeit in some cases unflattering, speech. Where there has been no trial, there should be no prior restraint on speech.
Appellees also falsely claim that certain Internet postings are "defamatory per se" (without need for extrinsic explanation). Appellees carefully neglect to disclose the fact that no court, especially the District Court, has ever held any of those postings to be defamatory per se. Even Appellees now admit that both extrinsic evidence and interpretation are necessary in order to give the Internet postings the defamatory meaning as claimed by appellees 3. (See the Third Amended Complaint recently filed by appellees in the Superior Court, wherein the "clearly defamatory" postings are explained to the reader so that they may be able to understand the defamatory meaning that appellees claim is contained in each message. Delfino's Supplemental Excerpts of Record ("DSER") as Exhibit 2).
Delfino's discovery into the underlying facts have exposed a scheme by plaintiffs to discredit Delfino's and Day's research in order to protect their careers. These allegations, with reference to their supporting facts, were filed with the District Court in "Defendant Delfino's Opposition to Renewed Motion for Partial Judgment." (see pages 2, line 19 through page 5, line 22. Docket # 259 filed 1/ 7/00 and included in Delfino's Supplemental Excerpts of Record ("DSER") as Exhibit 1). But as noted above, these are allegations only, as no tribunal (except for the CUIAB decision which ruled in Delfino's favor on the issue of alleged misconduct at work) has yet to rule or render a verdict on those allegations.
Unlike Appellees, Delfino distinguishes facts from mere allegations. Their Injunction should be dissolved.
3. In particular, Internet postings set forth in the proposed 3rd Amended Complaint, Paragraph 27 (a)(b)(c)(d)(e)(f)(g) and (h), Paragraph 28 (c)(g)(h)(i)(k)(n) and (p), Paragraph 29 (b) and (c), Paragraph 30(e)(f)(h) and (k) all require plaintiffs to explain their interpretive meaning. Each posting is qualified by the statement that it falsely "implies" the defamatory meaning urged by plaintiffs. But "implies" is synonymous with "infers," "alludes," and "suggests." Harldy the logical word choice for plaintiffs to utilize when they are also arguing that those postings were "clearly defamatory."
3. THE MODIFIED ORDER SUPERCEDED AND CHANGED, NOT "CLARIFIED," THE PREVIOUS ORDER
It is only the Appellees who are trying to "clarify" the Modified Preliminary Injunction. Everyone else can clearly read that this Order not only "supercedes the Preliminary Injunction," but that it adds a new party (Mary Day) to the equation 4, changes the relationship of the parties, and denies Dr. Delfino the lawful use of anonymity via serial or multiple Internet aliases, or to post anything whatsoever on the Internet using a second alias, regardless of content, whether specifically enjoined or not. Moreover, in the modification, each defendant was enjoined from ever changing their Internet alias. These are not trivial modifications, but constitute a vast change to the existing legal landscape covered by the injunction.
Appellees rely on the Motorola case for their support. But no support can be found there after review of the facts and holding in that case. There, the case had already concluded with a consent decree prohibiting defendant from copying plaintiffÌs monitors. Thereafter, defendant made trivial changes to their line of monitors and claimed that they complied with the decree. The court found, using patent law, substantial similarity and enjoined defendant from producing substantially similar monitors using a percentage of similarity test. Nowhere did the Motorola court add a new defendant to the injunction, or prohibit the defendant from using different product names (aliases) to lawfully sell substantially different monitors. But here, Day was added to the mixture, and Delfino and Day were enjoined from using multiple Internet aliases, and from ever changing their alias - - - period. It did not matter to the District Court that the use of multiple alias by defendants to lawfully discuss any aspect of Varian's business was also being curtailed by its "Modified" injunction. It did not matter to the District Court that anyone and everyone in the world, except these defendants, were free to discuss any aspect of Varian's business on the Internet using any number of aliases.
Appellees continue to claim the "Modified Preliminary Injunction" was nothing more than a "clarification" of its earlier Order Granting Preliminary Injunction, regardless that the court expressly entitled it "Modified" and stated that it "superceded" the prior injunction. Moreover, for the first time, it named, included, and enjoined Mary Day in the injunction, as well as limited the use of multiple Internet aliases. 5
By including Mary Day as a party, it effectively joined Delfino and Day by the hip, even though there was no substantial evidence that Day and Delfino were acting in concert.
This was more than a mere "clarification." It changed the status and relationship of the parties, instituted new restrictions on Delfino's ability to communicate freely over the Internet, and imposed content and view-based restrictions on his messages.
Obviously, the Modified Preliminary Injunction was just that, and not, as appellees would urge, a mere clarification.
4. A change that Appellees neatly skip mentioning, probably because it is the type of modification that makes the "modification" a modification and not a "clarification."
5. Significantly, Delfino gave botht the court and plaintiffs' counsel prior, unsealed, notice of the use of each alias, and which plaintiffs were at liberty to disclose and publish on the Internet if they wished to do so. If a reader was interested, Plaintiffs could have easily "posted" on the same message boards the true identities of each alias. While plaintiffs argue that multiple aliases permitted defendant to "decieve Internet users into believing that his bizarre views werer held by a crowd of people," it is quite clear from Appellees' argument that it seeks prior restraint of content and viewpoint based speech. Furthermore, there was no evidence to support a finding that people would be "fraudulently" misled that others held Delfino's point of view.
4.THERE IS NO INJUNCTION THAT SURVIVES THE REMAND ORDER
While Appellees acknowledge that the District Court left the door open to Delfino seeking a later review of the injunction after completion of more discovery, and that the injunction was not set in stone, they fail to disclose that no federal discovery had taken place when the original injunction was imposed. And before a review of that order could be brought, the District Court remanded the case to state court because it found that it did not have subject matter jurisdiction.
It makes legal and logical sense that the District Court's Modified Preliminary Injunction dissolved once it remanded the case to state court. Otherwise, the Preliminary Injunction would continue into perpetuity, without any opportunity for review, modification, appeal or trial, and thereby effectively becoming a Permanent Injunction, without a right to a trial, or even a right to an appeal. This could not be the law.
While defendants have requested a stipulation from plaintiffs' counsel to the effect that the modified preliminary injunction was dissolved once the case was remanded to state court 6, plaintiffs refuse to stipulate, even when discussed with the 9th Circuit's Mediator. After four months back in state court, appellees have yet to move for either a preliminary injunction or a TRO, but they are seeking to amend their complaint to state new unfair competition claims even though Judge Whyte ruled there was no competition, fair or otherwise!
The real issue here is that the modified preliminary injunction must have been dissolved once the case was remanded to state court. The dilemma is that appellees will argue in the state court that this federal preliminary injunction is still effective unless the Ninth Circuit addresses this issue in its decision, even if it decides the appeal upon other grounds.
6. And hence, if acknowledged, there should have been no need to proceed with this appeal.
5. APPELLEES HAVE PLACED THE CART BEFORE THE HORSE (i.e., Restraint of Speech Before the Trial)
There has never been a judicial determination that any Internet posting authored by Dr. Delfino is defamatory, slanderous, or defamatory per se 7 .
Appellees tried to obtain summary judgment on that issue, but they were denied. (Order Denying Partial Summary Judgment Against Delfino, 11/19/99, Docket # 186 and included in Delfino's Supplemental Excerpts of Record ("DSER") as Exhibit 3). Therein, Judge Whyte posed the issue: "The only question is whether the language is defamatory." (P3L23). While Judge Whyte personally felt that many of the postings were "vilely abusive," expressed an "obsessional dislike" for plaintiffs "in the most puerile fashion," (P3L26-27), he also noted that "mere swearing and insults" are not actionable and "rhetorical hyperbole and vigorous epithets are not defamatory." (P4L1-3) Judge Whyte denied the request for summary judgment explaining that the postings were susceptible to non-defamatory interpretations 8.
Keeping Judge Whyte's Denial of Partial Summary Judgment in mind, then it is an absolute falsehood for appellees to state, as they did in their brief to this court, that Judge Whyte prohibited Dr. Delfino from continuing to publish Internet messages containing certain specific statements that "the District Court found to be defamatory." (From line 3, page 4 of Appellees Brief) The District Court never reached such a conclusion.
That is important because the cases upon reach appellees rely for support of their injunction all have a common thread between them - - - a prior judicial determination (usually jury verdict) that the speech being enjoined is/was defamatory.
And appellees' reliance on Aguilar is misguided. In Aguilar, a divided court reached a bare plurality over denigrating racial slurs in the workplace. Unlike here, in Aguilar there had been a trial holding the employer and the individual utterer liable for discrimination through the use of racially derogatory words. The Aguilar court all readily noted the admonition in Freedman v. Maryland (1965) 380 U.S. 51, 58 that "The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." The eloquent dissents in that case from Justices Mosk 9, Kennard 10, and Brown 11 make clear the limited applicability of that case only to employment discrimination cases under the FEHA. This is not an employment discrimination or hostile work-place case, but rather a cyberspace free speech case. There has been no trial, summary judgment or verdict holding even one posting to be unlawful or defamatory. The only summary judgment in this case held that there was no federal commercial claims in this case, and by direct consequence thereof, no reason to restrain obviously "non-commercial" speech. The District Court's modified injunction is simply and undeniably prior restraint of free speech based on the content and views expressed by Dr. Delfino on the Internet.
Appellees claim that Lothschuetz, and "other cases agree that a repetitive course of defamatory speech may be enjoined." [P36L5-6]. Again, appellees are being deceitful. Those line of cases involved the prior, final, judicial determination that the enjoined speech was, in fact, defamatory (Lothschuetz would limit the application to only such statements which have been found in that and prior proceedings to be false and libelous; Gertz was after a jury verdict against a publisher by a private person; in Motorola, defendant argued the contempt order was, in effect, a modification of the preliminary injunction (not an issue in this case); Goldwater was after a jury verdict) or in violation of statute (San Antonio Hosp. involved a labor dispute and was decided under the Norris-LaGuardia Act) There has been no jury verdict here, and appellees have cited no authority for prior restraint of speech. In fact, one case cited by appellees is inapposite to their position that pre-trial restraints on speech are permitted 12. The "prior" in prior restrain refers to the judicial foreclosure of speech in advance of a fair trial.
"The term 'prior restraint' is used 'to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." [Citation.] Temporary restraining orders and permanent injunctions 'i.e., court orders that actually forbid speech activities' are classic examples of prior restraints." (Alexander v. United States (1993) 509 U.S. 544, 550.)
The District Court's Modified Preliminary Injunction clearly is a prior restraint of free speech, and that order must now be dissolved.
7. In state court, appellees have recently advised the Superior Court that they are dropping their "slander per se" cause of action against both defendants.
8. Indeed, Judge Whyte decimated one of Appelles linchpin postings when he wrote: "To take one example, Delfino has admitted posting the following statemetn about Felch: 'I believe she has acted as a manipulative liar, or worse yet, a neurotic hallucinator,' The Statement could be read as asserting certain facts (e.g., that Felch suffers from mental illness or that she has told specific untruths), but it could also be read as simply asserting an unfavorable, if hyperbolic, opinion about Felch." (from Footnote 5 on page 5)
9. "As the dissenting opinion in the Court of Appeal below correctly observed: 'Punishment for and suppression of speech are two very different things...No California appellate court has ever held...that persons cna be subjected to prior restraint on speech, and legally forbidden to speak on pain of fine or being sent to jail, for merely making rude or even immoral comments that might have a bad effect on the listener."
10. "I am aware of no authority permitting a trial court, in a civil action by individual plaintiffs, to award equitable relief in favor of persons who are strangers to the proceeding." (Note that in this case, the District Court included numerous non-parties [Kevin Felch, Jane Crisler, Ron Powell, Jim Fair, Richard Aurelio, Dick Levy, and their families] in the Modified Preliminary Injunction as person which had content and view-based restraints imposed on Dr. Delfino's free speech rights.
11. "We as a nation so value the free exchange of ideas that we are willing to tolerate even offensive ideas, knowing that 'one man's vulgarity is another's lyric" (Cohen v. California (1971) 403 U.S. 15, 25) and today's heretical idea may become tomorrow's gospel."
12. At page 35 of their brief, Appellees cite Advanced Training Systmems, Inc. v. Caswell Equipment Co., Inc. (Minn., 1984) 352 N.W.2d 1, 11 which is counter to their position that prior restraint is permitted. "We therefore hold that the injunction below, limited as it is to material found either libelous or disparaging after a full jury trial, is not unconsitutional and may stand." (Emphasis added)
6.CONCLUSION
It is respectfully submitted that the preliminary injunction entered against Delfino, and Day, was erroneously entered and violates state and federal Constitutional proscriptions against prior restraints of free speech.
The injunction should be dissolved and Dr. Delfino awarded his costs and attorneys' fees on appeal.
August 16, 2000
Glynn P. Falcon
Attorney for Appellant,
Michelangelo Delfino
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