IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
Case No. C083588
KIMBERLY McCAULEY,
Plaintiff/Respondent
v.
TODD V. PHILLIPS,
Defendant/Appellant,
On Appeal from the Superior Court of Sacramento
Case No. 34201670000487, Honorable Raoul Thorbourne, Judge
BRIEF OF AMICI CURIAE
ELECTRONIC FRONTIER FOUNDATION AND
PROFESSORS AARON CAPLAN AND EUGENE VOLOKH
IN SUPPORT OF DEFENDANT/APPELLANT
EUGENE VOLOKH
Counsel of Record
SCOTT & CYAN BANISTER
FIRST AMENDMENT CLINIC
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095
(310) 206-3926
volokh@law.ucla.edu
Counsel for Amici Curiae*
*

Counsel would like to thank Jenna Mersereau, Jennifer Milazzo, and Jordan Wolf, UCLA School of Law students who
worked on this brief.

 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Electronic Frontier Foundation is a tax-exempt nonprofit organization headquartered in California. It has no parent corporation and no stock.
Dated: March 22, 2018

Respectfully Submitted,

By:
Eugene Volokh
Counsel for Amici Curiae

2

 TABLE OF CONTENTS
Certificate of Interested Entities or Persons...................................2
Table of Contents ..............................................................................3
Table of Authorities ..........................................................................4
Introduction.......................................................................................6
Argument...........................................................................................7
I. The Injunction Unconstitutionally Forbids Protected
Speech About a Person That Does Not Fall Within One of
the Narrow Categories of Restrictable Speech...........................7
A. Injunctions May Not Forbid Protected Speech About a
Person Said to a Willing Listener ......................................... 7
B. State Courts Follow the U.S. Supreme Court in Striking
Down Overbroad Harassment Injunctions ......................... 12
II. The Injunction Is Not Justified by Phillips’ Mention of
McCauley’s Daughter ............................................................... 19
Conclusion ...................................................................................... 21
Certificate of Compliance .............................................................. 23
Certificate of Service...................................................................... 24

3

 TABLE OF AUTHORITIES
CASES
Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121 ......................................................................................... 17, 19
Balboa Island Village Inn, Inc. v. Lemen (2007) 40 Cal.4th
1141 ............................................................................................. 15
Brown v. Entm’t Merchants Ass’n (2011) 564 U.S. 786 ............... 20
David v. Textor (Fla.Dist.Ct.App.2016) 189 So.3d 871 ................ 12
Evans v. Evans (2008) 162 Cal.App.4th 1157 ........................ 13, 21
Ferber v. New York (1982) 458 U.S. 747 ....................................... 20
Fox v. Hamptons at Metrowest Condominium Ass’n, Inc.
(Fla.Dist.Ct.App.2017) 223 So.3d 453 ................................. 12, 13
Frisby v. Schultz (1988) 487 U.S. 474 ........................................... 10
Ginsberg v. New York (1968) 390 U.S. 629 ................................... 20
Hill v. Colorado (2000) 530 U.S. 703 ............................................ 11
Huntington Life Sciences v. Stop Huntingdon Animal
Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 ........... 17, 18, 19
In re Marriage of Evilsizor & Sweeney (2015) 237
Cal.App.4th 1416 ........................................................................ 16
Kingsley Books, Inc. v. Brown (1957) 354 U.S. 436................ 17, 18
NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886 .... 8, 9, 12
Near v. Minnesota ex rel. Olson (1931) 283 U.S. 697 ................... 18
Oklahoma Publishing Co. v. Oklahoma County District
Court (1977) 430 U.S. 308 .......................................................... 20
4

 Organization for a Better Austin v. Keefe (1971) 402 U.S.
415 ........................................................................................passim
People v. Marquan M. (2014) 24 N.Y.3d 1 .................................... 20
Phillips v. Campbell (2016) 2 Cal.App.5th 844 ...................... 16, 17
R.D. v. P.M. (2011) 202 Cal.App.4th 181 ................................ 13, 14
Rowan v. U.S. Post Office Dep’t (1970) 397 U.S. 728 ................... 10
Sarver v. Chartier (9th Cir. 2016) 813 F.3d 891 .......................... 14
Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 .............. 20
Snyder v. Phelps (2011) 562 U.S. 443 ..................................... 11, 12
State v. Bishop (2016) 368 N.C. 869 ............................................. 21
Van Liew v. Stansfield (2016) 474 Mass. 31................................. 13
OTHER AUTHORITIES
Aaron H. Caplan, Free Speech and Civil Harassment
Orders (2013) 64 Hastings L.J. 781........................................... 10
Eugene Volokh, One-to-One Speech vs. One-to-Many
Speech, Criminal Harassment Laws, and “Cyberstalking”
(2013) 107 Nw. U. L. Rev. 731 ................................................... 10

5

 INTRODUCTION
The trial court ordered Todd Phillips not to “post photographs,
videos, or information about [Kimberly McCauley] to any internet
site and to remove the same from any internet site over which he
has access or control.” But the First Amendment protects people’s
right to speak about others, including using others’ images and
“information about” them. Indeed, such speech is a staple of news
reporting, opinion writing, and even casual Facebook conversations.
To be sure, there are some narrow categories of speech that can
be restricted, such as libel and true threats of criminal conduct.
And unwanted speech to a particular person can be restricted,
which is why telephone harassment laws, for instance, are constitutional. But there is no general exception for opinions and accurate factual claims about a particular person. The injunction is
thus an unconstitutional prior restraint.
This would be so even if the injunction simply suppressed
purely personal criticisms; but here, the injunction is broad enough
to cover a wide range of political advocacy as well, such as:
• Phillips’ writing a blog post that criticizes McCauley for her
stance on vaccination laws, since any such criticism would
necessarily include some “information about” McCauley.

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 • Phillips’ creating a Facebook page for a political campaign
that advertises his commitment to anti-vaccination principles by recounting his past exchanges with McCauley.
• Phillips’ Tweeting about McCauley as an example of an antivaccination activist who has supposedly endangered her
family through vaccination.
• Phillips’ criticizing McCauley on a Facebook page for seeking
this injunction.
• Phillips’ criticizing the injunction online for preventing his
speaking about McCauley, since such criticism would likewise have to include some information about McCauley.
• Phillips’ posting on an anti-vaccination message board that
he is subject to this order, and explaining McCauley’s rationale for getting the order, as a way of warning others
about the possible consequences of their speech.
The injunction therefore violates the First Amendment, and
this Court should vacate it. (Amici express no opinion on the procedural questions raised in Part IV of McCauley’s brief.)
ARGUMENT
I. The Injunction Unconstitutionally Forbids Protected
Speech About a Person That Does Not Fall Within One of
the Narrow Categories of Restrictable Speech
A. Injunctions May Not Forbid Protected Speech About
a Person Said to a Willing Listener
The U.S. Supreme Court has consistently forbidden restrictions
on speech that is said to a willing audience and that falls outside
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 a few narrow, traditionally recognized categories (such as libel or
true threats). For example, in Organization for a Better Austin v.
Keefe, an activist group distributed pamphlets about real estate
agent Keefe to people in his neighborhood. ((1971) 402 U.S. 415,
419.) The pamphlets criticized Keefe’s real estate practices and
urged readers to pressure him to change those practices. The pamphlets also included Keefe’s personal telephone number so that
people could call him directly with their criticisms. (Id. at 417.)
A state court enjoined the distribution of the pamphlets, but the
U.S. Supreme Court vacated the order on First Amendment
grounds. The Court stressed that the plaintiff was not “attempting
to stop the flow of information into his own household, but to the
public”; the called this an “important distinction.” (Id. at p. 420.)
And the plaintiff’s interests in privacy and avoiding offensive criticism could not justify the injunction (Id. at pp. 419-20.) “[S]o long
as the means are peaceful,” the Court held, “the [pamphlets] need
not meet standards of acceptability.” (Id. at p. 419.)
Likewise, in NAACP v. Claiborne Hardware Co., the Court held
that speakers were entitled to publicly criticize even private citizens, and even when such criticism risked stimulating attacks on
those citizens. ((1982) 458 U.S. 886.) In Claiborne Hardware, the
petitioners declared a boycott against white businesses, and enforced this boycott by stationing observers outside white-owned
stores and then announcing—on leaflets and orally in local black

8

 churches—the names of those black residents who were seen shopping at the stores. (Ibid.) The residents “‘were branded as traitors
to the black cause, called demeaning names, and socially ostracized for merely trading with whites.’” (Id. at p. 904 (citation omitted).)
Even though the speech was intended to be coercive, and was
doubtless seen as such by many of its subjects, the Court held that
the First Amendment protected such public naming and shaming:
“Petitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism.
Speech does not lose its protected character, however, simply because it may embarrass others or coerce them into action.” (Id. at
pp. 909-10.) The Court therefore set aside an injunction against
such speech, as well as damages liability for the speech. (Id. at pp.
893, 924 n. 67, 934.)
Like the injunctions in Keefe and Claiborne Hardware, the injunction against Phillips is unconstitutionally overbroad because
it tries to stop the flow of information to the public at large. Just
as the NAACP’s public labeling of those who defected from the boycott as “traitors” was protected speech, so was Phillips’ public accusation that McCauley was a traitor to the anti-vaccination movement. That Phillips’ speech may have been critical or designed to
change McCauley’s behavior cannot justify the injunction, as both
Keefe and Claiborne Hardware make clear. Indeed, the injunction
against Phillips is even broader than the Keefe injunction because
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 it prevents him from posting to the Internet, which has an even
wider audience than leaflets.
Restrictions on unwanted speech to a person can be constitutional because speech said specifically to an unwilling listener is
less valuable than other speech. This speech is unlikely to persuade or enlighten anyone, precisely because the sole listener does
not want to hear it. “[N]o one has the right to press even ‘good’
ideas on an unwilling recipient.” (Rowan v. U.S. Post Office Dep’t
(1970) 397 U.S. 728, 738 [upholding restrictions on direct mailings
to people who had asked not to be contacted]; Eugene Volokh, Oneto-One Speech vs. One-to-Many Speech, Criminal Harassment
Laws, and “Cyberstalking” (2013) 107 Nw. U. L.Rev. 731, 740-51
[arguing that unwanted speech to a person is less protected than
speech about a person]; Aaron H. Caplan, Free Speech and Civil
Harassment Orders (2013) 64 Hastings L.J. 781, 782 [likewise].)
But this rationale for restricting speech to an unwilling listener
cannot be extended to restrictions on speech to the public, even
when it may include willing listeners; Keefe makes that clear, and
the Supreme Court has since reaffirmed this. For instance, in upholding a narrow restriction on certain kinds of residential picketing, the U.S. Supreme Court in Frisby v. Schultz stressed that the
targeted speech was “narrowly directed at the household, not the
public”—but “more generally directed means of communication”
cannot be similarly banned. ((1988) 487 U.S. 474, 484, 486 (citing
Keefe, supra, 402 U.S. at 420).)
10

 Likewise, in Hill v. Colorado, the Court upheld restrictions on
approaching patients of a healthcare facility within eight feet without their consent—but it did so only after both stressing that visitors to “health care facilities . . . are often in particularly vulnerable physical and emotional conditions” and “reiterating that only
attempts to address unwilling listeners” were affected. ((2000) 530
U.S. 703, 717, 727.) “It is . . . important . . . to recognize the significant difference,” the Court in Hill wrote, “between state restrictions on a speaker’s right to address a willing audience and
those that protect listeners from unwanted communication.” (Id.
at pp. 715-16.) The law in Hill “deal[t] only with the latter” (id.);
the injunction here deals with the former, by denying Phillips the
right to speak online about McCauley, even to willing readers.
Indeed, the Supreme Court has made clear that even outrageous and highly emotionally distressing speech about a person is
fully protected by the First Amendment, at least so long as it is
connected to matters of public concern (as the vaccination debate
certainly is). In Snyder v. Phelps, the U.S. Supreme Court protected the speech of protesters who displayed signs that said
“Thank God for Dead Soldiers” at the funeral of a deceased marine.
((2011) 562 U.S. 443, 456.) The Court recognized that, though the
speech caused the marine’s father “anguish” and “incalculable
grief,” the First Amendment precluded the father’s tort action
against the protesters for intentional infliction of emotional distress: “[I]n public debate [we] must tolerate insulting, and even
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 outrageous, speech in order to provide adequate ‘breathing space’
to the freedoms protected by the First Amendment.” (Id. at p. 458
[citations omitted].) Likewise, Phillips’ speech about McCauley is
at least as constitutionally protected.
B. State Courts Follow the U.S. Supreme Court in Striking Down Overbroad Harassment Injunctions
Many state courts have applied Claiborne and Keefe—distinguishing between speech to a person and speech about a person—
to strike down overly broad civil harassment injunctions.
For instance, in David v. Textor, the Florida Court of Appeal
struck down an anti-cyberstalking injunction barring a businessman from continuing his pattern of speech sharply criticizing his
rival. ((Fla.Dist.Ct.App.2016) 189 So.3d 871, 874.) The court found
that the injunction was an unconstitutional “prior restraint” because it prevented “not only communications to Textor, but also
communications about Textor.” (Id. at p. 876 [emphasis in original].)
Similarly, in Fox v. Hamptons at Metrowest Condominium
Ass’n, Inc., the Florida Court of Appeal struck down an injunction
barring a condominium owner from continuing his campaign of
sharp personal criticism against the condominium association and
its officers, employees, and residents. ((Fla.Dist.Ct.App.2017) 223
So.3d 453.) The court expressly relied on Keefe, saying “‘[n]o prior
decisions support the claim that the interest of an individual in

12

 being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court.”
(Id. at p. 457 (quoting Keefe, 402 U.S. at 419).)
Likewise, in Van Liew v. Stansfield, the Massachusetts high
court struck down a civil harassment order that ordered a critic of
a planning board member not to mention the member’s “name in
any email, blog, [T]witter or any document.” ((2016) 474 Mass. 31,
33-34.) The court held that even a narrower “harassment prevention order”—based in part on the critic’s “calling [member Colleen
Stansfield] corrupt and a liar”—was unconstitutional, and could
form the basis of a malicious prosecution lawsuit by the critic
against the politician. (Ibid.)
California courts have taken the same view, including in cases
where the speech restriction was aimed at protecting privacy. In
Evans v. Evans, the Fourth District struck down a preliminary injunction prohibiting an ex-wife and her mother from, among other
things, posting “false and defamatory statements” and “confidential personal information” about her ex-husband online. ((2008)
162 Cal.App.4th 1157, 1161.) Though the ex-husband argued the
speech was harassing and intruded on his privacy, the court held
that the injunction was unconstitutionally overbroad. (Ibid.)
Similarly, in R.D. v. P.M. (2011) 202 Cal.App.4th 181), the Second District upheld an injunction against unwanted speech to a
person, but only after stressing that the injunction did not restrain
online speech about that person. The injunction in that case barred
13

 only in-person, e-mail, and telephone communications to R.D., or
approaches within 100 feet of her and her family. (Id. at pp. 18486.) The court concluded that this injunction did not violate the
appellant’s First Amendment rights precisely because it “does not
prevent P.M. from expressing her opinions about R.D. in any one
of many different ways; she is merely prohibited from expressing
her message in close proximity to R.D. and her family.” (Id. at p.
191.) The court highlighted that the injunction was not “contentbased” and left appellant open to “distributing flyers about R.D.”
and “posting derogatory criticisms of R.D. on Internet sites.” (Ibid.)
Yet the injunction issued against Phillips expressly forbids any
posting of any “information” about McCauley on “any Internet
site,” and does so based on the content of speech. (See, e.g., Sarver
v. Chartier (9th Cir. 2016) 813 F.3d 891, 903 (concluding that a
restriction on speech that uses information about a person for the
speaker’s advantage and against the subject’s consent “clearly restricts speech based upon its content”).)
Indeed, these precedents fit well with the California Supreme
Court’s reasoning in Balboa Island Village Inn, Inc. v. Lemen,
which held that an injunction may only cover speech that has been
previously determined to fall within one of the narrow categories
of restrictable speech, such as defamation. In Balboa, the injunction barred the defendant from, among other things, making various accusations about the Balboa Island Inn and its personnel
(such as that the inn was a whorehouse, that it served tainted food,
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 and that the plaintiff owner encouraged lesbianism). ((2007) 40
Cal.4th 1141, 1162.)
The Court upheld only those parts of the injunction limited to
forbidding proven libel: “Such an injunction, issued only following
a determination at trial that the enjoined statements are defamatory, does not constitute a prohibited prior restraint of expression.”
(Id. at 1156.) And the Court struck down those parts of the injunction that more broadly banned speech to Inn employees, some of
whom might have been willing listeners. (Id. at 1161.) The injunction against McCauley is invalid under Balboa Inn because Phillips’ words were not found to be defamatory, or covered by any of
the other First Amendment categories of restrictable speech.
These careful distinctions drawn in Balboa, with a stress that
the injunction must be “issued only following a determination at
trial that the enjoined statements are defamatory,” would be pointless if a court could just categorically ban all speech by a person
that conveys any “information” about another speaker—entirely
without regard to whether the information has been determined at
trial to be defamatory. Indeed, upholding the injunction in this
case would thus allow an end-run around Keefe, Balboa Inn, and
other precedents that protect criticism for suppression. Nor does
§ 527.6 call for such a result: it carefully describes what should be
included in an order, § 527.6(b)(6), and a ban on all “photographs,

15

 videos, or information about” a plaintiff is not listed, likely because, given Keefe, Balboa Inn, and similar cases, such a ban is
unconstitutional.
Unsurprisingly, no California precedent authorizes injunctions
as broad as the one in this case, at least when the injunctions are
broad enough to cover speech related to matters of public concern.
The injunction in In re Marriage of Evilsizor & Sweeney for instance, was limited to Sweeney’s disseminating material on matters of purely private concern that he had downloaded from his exwife’s phone. (2015) 237 Cal.App.4th 1416, 1428. Here, the injunction covers all “information,” including in the context of a debate
on a matter of public concern—the safety of vaccination, and hence
the credibility of anti-vaccination activists—and including information derived from legitimate sources.
In Phillips v. Campbell, the Second District did say that, “[i]f
the issue were properly before us, we would reject [Campbell’s
First Amendment] argument” challenging an order barring
“post[ing] photographs, videos, or information about [Phillips] to
any internet site.” ((2016) 2 Cal.App.5th 844, 853 (internal quotation marks and citation omitted).) But that case arose in a very
different context: the breakup of a dating relationship, with nothing to suggest that the photographs or information had anything
to do with any political debate or any other issue of public concern.
Moreover, Campbell had “forfeited the issue because he has failed
to present meaningful legal and factual analysis, with supporting
16

 citations to pertinent authority and the record, on why his first
amendment rights were violated” (id.); the court’s brief substantive response to the argument was thus dictum. And it was indeed
dictum offered without the benefit of careful adversarial argument
in that case: Defendant Campbell, who was acting pro se in that
case, cited no First Amendment precedents in his briefs. 1
McCauley claims that the injunction against Phillips “was as
narrow, or even more so, than those approved by” Kingsley Books,
Inc. v. Brown (1957) 354 U.S. 436, Huntington Life Sciences v. Stop
Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th
1228, and Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th
121. (McCauley’s Br. 32.) But each of those cases simply illustrates
how overbroad the injunction against Phillips is.
1. Kingsley upheld a statute that authorized injunctions against
distributing material found by a court to be obscene (coupled with
the possibility of a pre-trial injunction lasting for a few days). 2 In

See Appellant’s Opening Brief, Phillips, at 44-48, http://www.
law.ucla.edu/volokh/Amiciclinic/mccauley/phillipsvcampbell1.pdf;
Appellant’s Response [Reply] Brief, id., at 46-48, http://www.law.
ucla.edu/volokh/Amiciclinic/mccauley/phillipsvcampbell3.pdf.
1

The statute provided that a defendant was “‘entitled to a trial
of the issues within one day after joinder of issue and a decision
shall be rendered by the court within two days of the conclusion of
the trial.’” 354 U.S. at 439 (citation omitted).
2

17

 its closing paragraph, the majority opinion stressed that the statute “is concerned solely with obscenity and . . . studiously withholds restraint upon matters not already published and not yet
found to be offensive” (meaning, in this context, obscene). (Id. at p.
445.) The injunction against Phillips is not concerned solely with
libel or any other category of unprotected speech, but restrains all
future speech about McCauley, libelous or otherwise.
Indeed, the injunction against Phillips is precisely the sort of
speech restriction that Kingsley condemned. Kingsley described
the law struck down in Near v. Minnesota ex rel. Olson (1931) 283
U.S. 697, as allowing “courts to enjoin the dissemination of future
issues of a publication because its past issues had been found offensive,” which was “ ‘. . . of the essence of censorship.’ ” (354 U.S.
at 445 (quoting Near, 283 U.S. at 713)). “This was enough to condemn the statute [in Near].” (Id.) The injunction against Phillips
likewise enjoins the dissemination of future speech by Phillips because his past speech had been found offensive.
2. Huntingdon actually held that the injunction in that case was
unconstitutionally overbroad. The injunction barred defendants
from “posting or maintaining on any Web site any information regarding” Huntingdon employees or family members (id. at pp. 550,
551-52); the Fourth District held that this went too far, because
defendants had to remain free to say various things about Huntingdon employees, such as noting if those employees are ever convicted of animal cruelty, or republishing news stories that mention
18

 Huntingdon employees. And even the narrower restriction that
Huntingdon authorized was justified only because defendants
were found to have published “credible threat[s] of violence”
against Huntingdon employees. (Id. at p. 544.) Here, the injunction
bars publication of all “information” about McCauley, with no exception, and with no finding of “credible threat[s] of violence.”
3. The injunction in Aguilar banned only the repeated use of
“derogatory racial or ethnic epithets” said to or about Hispanic
coworkers. (21 Cal.4th at 128.) The injunction against Phillips bars
all online speech conveying any “information” about McCauley, not
limited to epithets.
Moreover, Justice Werdegar’s concurrence in the judgment in
Aguilar—which provided the necessary fourth vote for the result—
stressed that the reasoning of Aguilar was limited to “modest time
and place restrictions” (id. at p. 169 (conc. opn. of Werdegar, J.))
focused on speech in the special context of the workplace, where
employees constitute a “captive audience” (id. at pp. 159-61, 169).
The concurrence expressly said that the injunction was constitutional “if sufficiently narrowed on remand to apply to the workplace only.” (Id. at p. 166.) The injunction against Phillips is of
course not limited to workplace speech.
II. The Injunction Is Not Justified by Phillips’ Mention of
McCauley’s Daughter
Speech does not lose its First Amendment protection because it
is about a minor. Sexually themed photographs of minors can be
19

 banned as child pornography. (Ferber v. New York (1982) 458 U.S.
747.) Likewise, some sexually themed speech to a minor may be
forbidden as obscene as to minors. (Ginsberg v. New York (1968)
390 U.S. 629, 673.) But the U.S. Supreme Court has rejected attempts to expand these narrow exceptions beyond the context of
sexual depictions. (See Brown v. Entm’t Merchants Ass’n (2011)
564 U.S. 786, 793 [expressly refusing to extend the obscene-as-tominors exception to cover nonsexual depictions of violence].)
Speech about minors continues to be protected; for instance, the
U.S. Supreme Court has rejected prohibitions on publishing the
names of minors involved in juvenile court proceedings. (See Oklahoma Publishing Co. v. Oklahoma County District Court (1977)
430 U.S. 308; Smith v. Daily Mail Publishing Co. (1979) 443 U.S.
97.)
Indeed, state courts have struck down even those laws that are
limited to speech intended to “harass” or “torment” minors. The
New York high court held an ordinance that banned cyberbullying
“with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional
harm on another person” was unconstitutional, even if the ordinance were read as limited to minors. (People v. Marquan M.
(2014) 24 N.Y.3d 1, 10-11.) “[T]he First Amendment protects annoying and embarrassing speech, even if a child may be exposed to
it.” (Id. at p. 11.)

20

 Likewise, the North Carolina Supreme Court recently struck
down a ban on speech that intentionally “torment[s]” a minor, even
though the ban was limited to speech that reveals “private, personal, or sexual information pertaining to a minor.” (State v.
Bishop (2016) 368 N.C. 869, 872.) “[H]owever laudable the State’s
interest in protecting minors from the dangers of online bullying
may be, North Carolina’s cyberbullying statute ‘create[s] a criminal prohibition of alarming breadth,’” which was unconstitutional.
(Id. at pp. 879-80 (citation omitted).)
The injunction in this case is even more extreme than these
criminal prohibitions. The injunction is not limited to speech about
minors. It is not limited to speech that conveyed a minor’s “private,
personal, or sexual information.” It is not limited to speech intended to “harass,” “torment,” and the like. And, being an injunction, it is a prior restraint on speech, “the most serious and the
least tolerable infringement on First Amendment rights.” (Evans,
162 Cal.App.4th at 1166-67.) Given that narrower criminal prohibitions limited to speech about minors were found to be unconstitutionally overbroad, this injunction is certainly invalid.
CONCLUSION
The injunction in this case bars Phillips from talking about
McCauley, his political adversary, in the context of a heated debate
on a public matter. It limits his ability to publicly explain his disagreement with her. It limits his ability to argue that she ought

21

 not be trusted. Indeed, it even limits his ability to condemn the
injunction itself and her role in asking for this injunction.
Speech can be restricted when it is threatening, defamatory, or
fits within any other narrow category of unprotected speech.
Speech to an unwilling listener can also be restricted. But this injunction goes far beyond that, restricting a wide range of speech
about a person. That is inconsistent with U.S. Supreme Court precedent, California precedent, and many considered decisions from
other courts. The injunction should therefore be vacated.
DATED: March 22, 2018

Respectfully Submitted,
By: s/ Eugene Volokh
Eugene Volokh
Counsel for Amici Curiae

22

 CERTIFICATE OF COMPLIANCE
I certify that pursuant to Rule 8.204(c)(1) or 8.360(b)(1) of
the California Rules of Court, the enclosed brief is produced using
13-point Century Schoolbook font including footnotes and contains
3,796 words, which is less than the total words permitted by the
rules of court. Counsel relies on the word count of Word 365, the
computer program used to prepare this brief.
Dated: March 22, 2018

Respectfully Submitted,

By:
Eugene Volokh
Counsel for Amici Curiae

23