What is the test for prior restraint of speech in a defamation action?

California, United States of America


The following excerpt is from Hassell v. Bird, 203 Cal.Rptr.3d 203, 247 Cal.App.4th 1336 (Cal. App. 2016):

An order prohibiting a party from making or publishing false statements is a classic type of an unconstitutional prior restraint. [Citation.] While [a party may be] held responsible for abusing his right to speak freely in a subsequent tort action, he has the initial right to speak freely without censorship. [Citation.] (Evans v. Evans (2008) 162 Cal.App.4th 1157, 11671168, 76 Cal.Rptr.3d 859.) However, the constitutional bar against prior restraint of speech does not apply to an order issued after a trial prohibiting the defendant from repeating specific statements found at trial to be defamatory.... (Id. at p. 1168, 76 Cal.Rptr.3d 859, citing Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th 1141, 11551156, 57 Cal.Rptr.3d 320, 156 P.3d 339, italics omitted (Balboa Island ).)

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