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Supreme Court reverses ban on Internet criticism

The Supreme Court of Virginia acted swiftly last month to overturn a lower court’s takedown order directing a disgruntled consumer to remove critical online postings about a contractor.

The high court vacated a Dec. 7 order from Fairfax Circuit Judge Thomas A. Fortkort ordering Jane Perez of Fairfax County to delete certain accusations about Dietz Development LLC from postings on Yelp and Angie’s List.

The ruling came two days after lawyers filed an appeal of Fortkort’s preliminary injunction.

The Supreme Court’s Dec. 28 unpublished order states the Fortkort order did not prescribe the time during which the injunction was to be effective. The high court also found the preliminary injunction was “not justified” and Dietz had “an adequate remedy at law.”

The Fortkort ruling had been appealed by both the ACLU of Virginia and Public Citizen on behalf of Perez. The groups said the Fortkort order violated both the First Amendment and Virginia law.

Contractor Christopher Dietz sued Perez in October over her Internet comments. Her postings had criticized his firm’s work, implied Dietz or his workers stole items from her home and suggested she had prevailed on the merits in an earlier court action.

Dietz contended he was defamed by those statements and lost $300,000 in business. He demanded a preliminary injunction.

After a hearing, Fortkort ordered Perez to take down some of her accusations and barred her from repeating them in any new posts while the lawsuit was pending.

The ACLU and Public Citizen filed Perez’ petition for review on Dec. 26. The court’s order vacating the preliminary injunction was entered just two days later.

The Supreme Court’s order cites an issue not raised in the petition for review. Under Virginia law, a court issuing a temporary injunction must prescribe the time that the injunction is to be effective. Judge Fortkort’s order apparently did not state an end time for the injunction.

In her petition for review, Perez alleged Fortkort’s order was a constitutionally impermissible prior restraint on speech. “A preliminary record is not a sufficient basis to enjoin speech on a matter of public interest pending the resolution of this case about who was telling the truth about this company’s performance of its contract,” wrote Rebecca A. Glenberg of the ACLU in the petition.

The petition for review also argued that Fortkort’s injunction ran afoul of the common law rule that “equity will not enjoin a libel” and was unsupported by specific findings about falsity, negligence or irreparable injury.

Those arguments apparently were well received. After noting the injunction’s lack of an end time, the Supreme Court panel wrote,

“Upon further consideration whereof, the Court also finds that the preliminary injunction was not justified and that the respondents have an adequate remedy at law.”

The Supreme Court order states that it is to be certified to the circuit court.

In a statement, Glenberg said Dietz still will have the opportunity to try to prove in court that he was wronged by Perez’ speech, but “the court cannot suppress her speech in the meantime.”

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