## Facts

- Robert Kinney, a former legal recruiter for BCG Attorney Search, left to start a competing recruiting firm.
- Andrew Harrison Barnes, president of BCG and operator of related recruiting websites, posted online statements accusing Kinney of involvement in illegal kickback schemes and asserting BCG fired him for that conduct.
- Kinney sued Barnes and related entities for defamation, seeking damages and permanent injunctive relief.
- Kinney requested (1) an order requiring removal of the existing online statements and (2) an order prohibiting Barnes from making the same or similar statements in the future.
- The trial court granted summary judgment for Barnes, concluding the requested injunctions would be an unconstitutional prior restraint under the Texas Constitution.
- The court of appeals affirmed, treating both requested injunction components as unconstitutional prior restraints.

## Issues

1. Whether a post-adjudication permanent injunction requiring removal or deletion of specific online statements found defamatory constitutes a prior restraint under the Texas Constitution.
2. Whether a post-adjudication permanent injunction prohibiting future speech that is the same or similar to adjudicated-defamatory statements is an unconstitutional prior restraint.

## Decision

- The Texas Supreme Court reversed the court of appeals’ judgment and remanded for further proceedings.
- A permanent injunction requiring removal of posted speech that has been adjudicated defamatory is not a prior restraint.
- A permanent injunction prohibiting future speech that is the same or similar to speech adjudicated defamatory is an unconstitutional infringement on free-speech rights under the Texas Constitution.
- The lower courts erred by failing to distinguish between an order eliminating specific adjudicated-defamatory content and an order restraining future speech.

## Legal Principles

- Prior restraints on speech are heavily disfavored under the Texas Constitution because they risk chilling protected expression.
- Defamation is not protected speech, but courts must avoid remedies that suppress or deter protected speech along with unprotected speech.
- A narrowly tailored injunction compelling removal or deletion of specific statements after they are finally adjudicated defamatory is a permissible remedial order addressing past wrongful speech.
- An injunction that broadly forbids future speech described as “same or similar” to prior defamatory statements is impermissibly vague and overbroad, and operates as an unconstitutional prior restraint.

## Conclusion

Texas courts may order the removal of specific online statements that have been adjudicated defamatory, but they may not enjoin a speaker from making future “same or similar” statements because such a forward-looking ban is an unconstitutional prior restraint under the Texas Constitution.


Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014)