Order Barring Defendant from “Us[ing] Terms Such as ‘Nigger,’ While in Earshot of” a Neighbor, Reversed on Appeal

Lloyd v. Hardesty (Cal. Ct. App. May 31, 2013) (nonprecedential); for more on the factual backstory, see an earlier opinion in the case:

The trial court entered a … restraining order prohibiting Wax from harassing Lloyd or her daughter. In particular, the court’s order provided that “(1) Wax ‘shall not make direct contact with [] Lloyd under any circumstances or conditions regarding [] Lloyd’s daughter and the use of the property at [] Lloyd’s residence unless done by written instrument’; (2) Wax ‘may not water her plants so as to cause any water to spill over on to the property where [] Lloyd resides’; (3) Wax ‘may not follow [] Lloyd or her daughter to any location’; (4) Wax ‘may not use terms such as “nigger,” while in earshot of [] Lloyd’; and (5) Wax ‘shall not refer to the “KKK,” under any circumstances, whether she is speaking directly to [] Lloyd or musing to herself, when within earshot of [] Lloyd or her daughter.’” …

Wax appeals, contending that the court’s order lacks an evaluation of the factors for the issuance of a restraining order and is not based on clear and convincing evidence. We agree, and therefore again remand the matter to the trial court to hold a hearing, to make the requisite evaluation of the evidence, provide any reasoning for its ruling including any relevant authority, and set forth any findings made on clear and convincing evidence. As section 527.6, subdivision (i) provides, “[a]t the hearing, the judge shall receive any testimony that is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.” …

In addition, we note that the … [order] is vague and overbroad in reference to Wax’s speech. The order prohibits Wax from “us[ing] the term ‘nigger’ when referring to Plaintiff or her daughter.” A prior restraint on speech is highly disfavored and presumptively violates the First Amendment. Hence, any injunction on speech must be narrowly drafted and sufficiently precise to meet constitutional requirements.

The order is reversed and the matter is remanded for proceedings consistent with this opinion…. On our own motion and in the interests of justice, all further proceedings shall be heard before a judicial officer other than the judicial officer who issued the order we have just reversed [for the second time in this case, and based on much the same analysis both times -EV].

The court doesn’t discuss the “KKK” prohibition (which seems to have been related to defendant’s allegedly threatening “to have [the] KKK get” plaintiff), but it too has been vacated — at least for now — given that the entire order has been vacated.