[VAR VSEA] Excerpts from Varian SLAPP Oral Argument
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EISENBERG: Jon Eisenberg for Michelangelo Delfino and Mary Day. Good afternoon.
PREMO: Good afternoon.
EISENBERG: I would like to address - uh - two points at the beginning. One would be the issue of whether or not we have defamation here. Secondly the issue of prior restraint, and time permitting I will move on to the issue of malice and its requirement in defamation cases involving issues of public concern, and the issue whether defamation on the Internet is libel or slander.
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EISENBERG: All four of these points - thank you - uh - revolve around one - uh - paramount point which the U.S. Supreme Court has made that the Internet is the most participatory form of mass speech yet developed entitled to the highest protection from government intrusion. This case affords the court an opportunity to ensure that protection with regard to these four points. Firstly, recognize that what happened in this case was not defamation....
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EISENBERG: What we have here is really disgusting speech. No doubt about that - very offensive, vile - I've, I have used those words in my own briefs to describe the speech that is speech that has occurred here ...
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EISENBERG: Prior restraint, I think, is the Constitutional issue in this case. And I think, this case is a good example of why the Constitution, California and Federal, prohibit prior restraints. They can be used, misused to squelch free-expression. What the trial judge tried to do here, I think, was admirable. We have an eleven page list of things that could and could not be said, but it just doesn't work. It can't be done because of the way the injunction was worded - in some cases vaguely, and in some cases overbroadly. It could be misused to ensnare protected speech - for example, the book published by Delfino and Day that is the subject of the contempt proceeding. The injunction was used to go beyond the Internet - into classic print publication and enjoin commentary on litigation. That's far beyond what was intended. The injuction extended to non-parties. The - the injunction extended to lawful speech, perfectly lawful speech.
PREMO: How can the injunction apply to non-parties?
EISENBERG: It can't. It absolutely can not.
PREMO: A bit of a due process problem.
EISENBERG: A bit of a due process problem.
WUNDERLICH: If the injunction were amended ... and then only to Internet communications ... can the injunction stand?
EISENBERG: I do not believe so and the distinction is whether or not the injunction is content-based. That's the critical factor here. An injunction that is not content-based, that is content-neutral is not considered prior restraint. And the few U.S. Supreme Court cases that have approved of injunctions against quote, unquote speech have approved - approved of injunctions that are content-neutral - mainly time, place, and manner. This injunction is not content-neutral; it is content-based.
ELIA: Now, it's very clear that uh - prior restraint obviously, of course we all know is in - inappropriate here, unconstitutional here - uh - you're faced - the judge is faced with a case where there are thousands and literally thousands of, of statements that are being made, and there is the um - I - I - believe the parties have indicated they will continue to do that until they are de - they die, something to that effect ...
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PREMO: So what's the - what's the remedy, wait for a statement to be made and then have multiple contempt hearings?
EISENBERG: ... no, not contempt hearings ... according to the Constitutional law and the cases interpreting it the remedy is another suit for additional damages and I know that's burdensome, but that's that - that is the price of the First Amendment. We do not allow censor - censorship in this country....
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EISENBERG: There is no U.S. Supreme Court case, no Cal Supreme Court case that has ever said or ever will say there may be a content-based injunction against speech.
ELIA: Has there ever been a case ... similar to this case ... that's not been upheld?
EISENBERG: No. I've never seen anything like this. I've never seen an injunction like this upheld - on appeal. There's been no case like this. I can say that with confidence.
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