STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 CA 1240
LIVINGSTON PARISH SCHOOL BOARD
VERSUS
ASHLEY KELLETT
Judgment Rendered: MAY 18
On Appeal from the 21 st Judicial District In and for the Parish of Livingston C State of Louisiana Trial Court Docket Number 165$ 64, Div. "F"
Han. William S. Dykes, Judge Presiding
Claiborne W. Brown Counsel for Defendant/ Appellant, Mandeville, Louisiana Ashley Kellett
Mark D. Boyer Counsel for Plaintiff/Appellee, Diana L. Tonagel Livingston Parish School Board Denham Springs, Louisiana
BEFORE: WELCH, PENZATO, AND LANIER, JJ. PENZATO, J.
Appellant, Ashley Kellett, appeals from a February 22, 2023 judgment
denying, in part, her motion for dissolution of preliminary injunction. Ms. Kellett
challenges certain portions of a preliminary injunction, issued on April 8, 2020, in
favor of the Livingston Parish School Board, which enjoined, restrained, and
prohibited Ms. Kellett from making certain statements regarding the School Board
and its faculty, staff, and employees.
First, we recall the show cause order issued by this court and maintain the
appeal. Next, we reverse the portion of the February 22, 2023 judgment denying
Ms. Kellett' s motion for dissolution of preliminary injunction to the extent the
motion sought reversal of the portion of the April 8, 2020 preliminary injunction,
which constitutes an impermissible prior restraint on Ms. Kellett' s right to free
speech protected by the First Amendment. Finally, we grant Ms. Kellett' s motion
for dissolution of preliminary injunction in part and strike the portion of the April
8, 2020 preliminary injunction that enjoined, restrained, and prohibited Ms. Kellett
from engaging in any form of written or verbal " disparagement" toward any
School Board member, administrator, faculty, or staff at Live Oak Elementary
School and from " making or publishing and/ or from engaging in any activity to
make, disseminate, publish or broadcast defamatory, slanderous, libelous, frivolous
and/ or fraudulent claims or statements concerning [ the School Board], its faculty,
staff and employees, as defined by La. R. S. 14: 47- 48, 13: 3381( B), directly or by
her enlisting the assistance of any other person( s) on her behalf ...." The matter is
remanded to the trial court for further proceedings.
FACTS AND PROCEDURAL HISTORY
The instant dispute began when the School Board discovered that Ms.
Kellett, the mother of a child attending Live Oak Elementary School, " repeatedly
concealed" electronic devices in her child' s clothing or personal belongings in
0) November 2019, Ms. Kellett purportedly used these devices to " intercept
communications by and between faculty, students, and others in the school and/ or
classroom during school hours and while on school property." One such device, an
AngelSense, had GPS capability to track the child' s whereabouts and also allowed
verbal communications between Ms. Kellett and her child. The School Board
obtained a temporary restraining order ( TRO) on January 27, 2020, then a
preliminary injunction on April 8, 2020, prohibiting Ms. Kellett' s use of these
devices on school property.
The School Board also accused Ms. Kellett of being critical of the School
Board and publicly discussing " her child' s special needs" and individual education
plan with the media. Ms. Kellett allegedly maintained a " live web blog and other
ongoing social media posts" that involved discussion and disclosure of information
related to the School Board, the special education program, and other identified
individuals. According to the School Board, these posts have " caused concern for
parents of other [ Livingston Parish School System] students and have defamed and
slandered the reputations of [the School Board] and Live Oak Elementary staff."
The January 27, 2020 TRO and April 8, 2020 preliminary injunction addressed this
additional complaint by the School Board. Pertinently, the April 8, 2020
preliminary injunction enjoined, restrained, and prohibited Ms. Kellett from:
d) ... engaging in any form of written, verbal, or physical displays of hostility, anger, or disparagement, and/ or from making threats of any physical assault, and/or any disorderly conduct that results in fear or disruption of activities through hostile and inappropriate behavior toward any LPSB [ Livingston Parish School Board] member,
administrator, faculty or staff at Live Oak Elementary School and/ or on any LPSS [ Livingston Parish School System] public school bus or other school property, and/or while participating in any educational or other school related business or function, including but in no way limited to any Individual Education Plan ( IEP) or Individual Health Plan ( IHP) meetings or evaluations required to facilitate the minor child' s special education and health care needs;
3 f) ...making or publishing and/or from engaging in any activity to make, disseminate, publish or broadcast defamatory, slanderous,
libelous, frivolous and/ or fraudulent claims or statements concerning the School Board], its faculty, staff and employees, as defined by La. R. S. 14: 47- 48, 13: 3381( B), directly or by her enlisting the assistance of any other person( s) on her behalf ....
No appeal was taken from the issuance of the April S, 2020 preliminary
injunction. See La. C. C. P. art. 3612. Instead, Ms. Kellett filed a motion for
1 dissolution of preliminary injunction on June 13, 2022. Ms. Kellett asserted that
the preliminary injunction " unquestionably constitutes unconstitutional prior
restraint" on her right to free speech and the School Board failed to meet its " heavy
burden" of proving entitlement to the preliminary injunction restricting speech.
Ms. Kellett further asserted that the School Board failed to show irreparable harm
would result from the use of the complained -of electronic devices placed on her
child.
At the conclusion of the June 20, 2022 contradictory hearing, the trial court
granted Ms. Kellett' s motion for dissolution of preliminary injunction in part with
respect to the prohibition of her use of the AngelSense device and amended the
April 8, 2020 preliminary injunction to allow Ms. Kellett to use the AngelSense
device within the articulated parameters, which are not pertinent here. The trial
court denied Ms. Kellett' s motion in all other respects. Ms. Kellett then filed this
appeal.
SHOW CAUSE ORDER
This court issued a show cause order on November 21, 2022, noting that the
appellate record did not contain a written judgment as to the June 20, 2022 oral
ruling. After receiving briefs from both parties, an interim order was issued on
1 Ms. Kellett' s motion was filed shortly after the School Board filed a motion and order for enforcement of the preliminary injunction and for sanctions against Ms. Kellett for contempt of court. The merits of this motion and the trial court' s ruling are not before this court in this appeal and are, therefore, not discussed.
4 January 25, 2023, remanding the matter for the limited purpose of requesting that
the trial court issue a written judgment addressing Ms. Kellett' s motion for
dissolution of preliminary injunction. The appeal record was thereafter
supplemented with a written judgment, signed February 22, 2023, granting Ms.
Kellett' s motion for dissolution with respect to the prohibition of the use of the
AngelSense device, subject to conditions set forth in the judgment ( not pertinent
here), and denying the motion in all other respects. Thus, we recall the show cause
order and maintain the appeal, finding the appeal is timely and properly before us.2
See La. C. C. P. art. 3612( 0); Stevens Construction & Design, L.L. C. v St. Tammany
Fire Protection District No. 1, 2018- 1759 ( La. App. 1st Cir. 1/ 16/ 20), 295 So. 3d
954, 958 ( en Banc), writ denied, 2020- 00977 ( La. 1114120), 303 So. 3d 650.
DISCUSSION
On appeal, Ms. Kellett asserts that the trial court erred in denying the motion
for dissolution of preliminary injunction " pertaining to any prohibition upon the
defendant from making certain public statements regarding the [ School Board] and
its employees." Ms. Kellett argues that the prohibition against making public
statements that are purportedly defamatory, slanderous, libelous, frivolous, and/ or
fraudulent concerning the School Board, its faculty, staff, and employees
constitute[ s] unconstitutional prior restraint of protected speech under the [ united
States Constitution." Ms. Kellett does not assert that the trial court erred by
2 In response to the show cause order, the School Board argued that Ms. Kellett " cannot
circumvent" the appellate process by filing a motion for dissolution rather than filing an appeal and that she improperly sought a devolutive appeal from an interlocutory order. However, La. C. C. P. art. 3612( C) states, " An appeal from an order or judgment relating to a preliminary injunction must be taken, and any bond required must be furnished, within fifteen days from the date of the order." ( Emphasis added.) This broad language applies to the February 22, 2023 judgment on the motion for dissolution of preliminary injunction filed in accordance with La. C.C.P. art. 3607. See Turbine Powered Technology, LLC v. Crowe, 2018- 0881 ( La. App. 1 st Cir. 9/ 5/ 19) ( unpublished), 2019 WL 4201579, * 9, writ denied, 2019- 01548 ( La. 11119119), 282 So. 3d 1063 ( considering a motion for dissolution of preliminary injunction on appeal where no appeal was taken following the issuance of the preliminary injunction). We likewise find no merit to the School Board' s argument that the appeal is moot because of statements purportedly made by Ms. Kellett during a December 2022 hearing. Most significantly, the appeal record contains no evidence of these alleged statements.
5 denying the motion for dissolution of preliminary injunction in any other respect or
by modifying the preliminary injunction concerning the use of the AngelSense device. Therefore, we review the narrow issue of whether subsection ( f) of the
preliminary injunction, set forth above, is an unconstitutional prior restraint on free
speech in violation of Ms. Kellett' s First Amendment rights. Because portions of
subsection ( d) also restrain Ms. Kellett from engaging in any form of written or
verbal " disparagement" and is reasonably included within the scope of review
requested by Ms. Kellett, we also examine this portion of the April 8, 2020
preliminary injunction.
Scope and Standard ofReview
Louisiana Code of Civil Procedure Article 3607 provides that an interested
person may move for the dissolution or modification of a temporary restraining
order or preliminary injunction. The mover is not required to show that a change
in circumstances has occurred before a preliminary injunction may be dissolved.
Zanella' s Wax Bar, LLC v. Trudy' s Wax Bar, LLC, 2019- 0043 ( La. App. 1 st Cir.
1117119), 291 So. 3d 693, 697, writ denied, 2019- 01931 ( La. 1/ 28/ 20), 291 So. 3d
1052. However, on a motion to dissolve a preliminary injunction, a trial court
should not consider arguments or evidence that could have been raised at the time
the preliminary injunction was issued. Turbine Powered Technology, LLC u
Crowe, 2018- 0881 ( La. App. 1 st Cir. 915119), ( unpublished) 2019 WL 4201579, * 9,
writ denied, 2019- 01548 ( La. 11119/ 19), 282 So. 3d 1063.
The sole question to be determined at a hearing to dissolve a preliminary
injunction is whether, on the facts disclosed, the court should have granted the
injunction in the first instance. Turbine Powered Technology, LLC, 2019 WL
4201579 at * 9. A party seeking the issuance of a preliminary injunction must
show that he will suffer irreparable injury if the injunction does not issue and must
show entitlement to the relief sought. La. C. C. P. art. 3601; Dale v. Louisiana
0 Secretary ofState, 2007- 2020 ( La. App. 1 st Cir. 10/ 11/ 07), 971 So.2d 1136, 1141.
To satisfy this burden, the party must make a prima facie showing, by ordinary
proof or by verified petition or affidavits, that he will prevail on the merits of the
case. A trial court enjoys considerable discretion in determining whether a
preliminary injunction is warranted. Thus, the trial court' s ruling on the request for
a preliminary injunction will not be disturbed on appeal absent a clear abuse of
discretion. Dale, 971 So. 2d at 1141.
The hearing on the School Board' s request for a preliminary injunction took
place in March 2020. During the hearing, Ms. Kellett asserted, " it' s my [ F] irst
Almendment right to voice whatever opinion that I have ... it is my [ F] irst
A] mendment right to be able to talk." Since Ms. Kellett raised a First
Amendment argument at the time the preliminary injunction was issued, we must
determine whether, on the facts disclosed, the trial court should have granted the
preliminary injunction in the first instance. Turbine Powered Technology, LLC,
2019 WL 4201579 at * 9.
Impermissible Prior Restraint on Speech
The First Amendment to the United States Constitution provides that
Congress shall make no law ... abridging the freedom of speech." U. S. Const.
Amend. I; In re Warner, 2005- 1303 ( La. 4/ 17109), 21 So. 3d 218, 228. The liberty
of speech granted by the First Amendment is safeguarded from invasion by state
action through the Due Process Clause of the Fourteenth Amendment. In re
Warner, 21 So.3d at 228, citing First National Bank of Boston v. Bellotti, 435 U.S.
765, 779, 98 S. Ct. 1407, 1417, 55 L.Ed.2d 707 ( 1978). The trial court is a state
entity, and the judgment granting the preliminary injunction at issue is " state
action." La. Const. Art. 5, §§ 14, 16; La. C. C. P. art. 3601, et seq. Consequently,
the protections of the First Amendment are applicable in the instant matter. See In
re Warner, 21 So. 3d at 228.
7 The term " prior restraint" describes orders forbidding certain
communications that are issued before the communications occur. Alexander v.
United States, 509 U.S. 544, 544, 113 S. Ct. 2766, 2768, 125 L.Ed. 2d 441 ( 1993)
Prior restraint is that restraint or suppression of an expression without judicial
determination of the right to suppress before any publication, any exhibition, or
any communication of that expression. Gulf States Theatres of Louisiana, Inc. v.
Richardson, 287 So. 2d 480, 489- 90 ( La. 1973). A free society prefers to punish
the few who abuse rights of speech after they break the law than to throttle them
and all others beforehand. Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
559, 95 S. Ct. 1239, 1246- 47, 43 L.Ed.2d 448 ( 1975).
Prior restraints on speech and publication are the most serious and the least
tolerable infringement on First Amendment rights and are, therefore, presumed to
be constitutionally invalid. Nebraska Press Association v. Stuart, 427 U.S. 539,
559, 96 S. Ct. 2791, 2803, 49 L.Ed.2d 683 ( 1976); State v. Lee, 2000- 2516 ( La.
App. 4th Cir. 4/ 6/ 01), 787 So. 2d 1020, 1037. Although prior restraint may be
imposed under some extraordinary circumstances, a party seeking this relief carries
a heavy burden of showing justification for the imposition of such a restraint.
There is a heavy presumption against the constitutional validity of a prior restraint
on speech. Guste v. Connick, 515 So. 2d 436, 438 ( La. 1987).
The Louisiana Supreme Court considered the permissibility of prior restraint
on speech in Guste. There, Guste sought a preliminary injunction to prohibit
Connick from running a campaign ad making purportedly false statements against
Guste. Connick asserted that the granting of a preliminary injunction would be a
prior restraint of free speech in violation of his First Amendment rights. Guste,
515 So. 2d at 437. The trial court granted the request for a preliminary injunction
and ordered Connick to " cease and desist" running the campaign ad. After the
court of appeal denied writs, the Louisiana Supreme Court granted review and
Ed reversed the judgment, dissolving the preliminary injunction. The Court explained,
in a case of this kind, courts do not concern themselves with the truth or validity
of the publication. An injunction, so far as it imposes prior restraint on speech and
publication, constitutes an impermissible restraint on [ F] irst [ A]mendment rights."
Guste, 515 So. 2d at 437- 38. See also Brandner a Molonguet, 2014-0712 ( La. App.
1st Cir. 12/ 23114), ( unpublished) 2014 WL 7332206, * 9 ( recognizing that courts
are also generally reluctant to issue an injunction to restrain torts such as
defamation or harassment.)
The School Board argues that false statements, like Ms. Kellett' s accusations
against the School Board and its employees, which purportedly include allegations
of criminal conduct, are not constitutionally protected free speech. Worse, it
asserts, the words uttered by Ms. Kellett are defamatory per se. In Kennedy v.
Sheriff of East Baton Rouge, 2005- 1418 ( La. 7110106), 935 So.2d 669, 675, the
Louisiana Supreme Court recognized that words that expressly or implicitly accuse
another of criminal conduct, or which by their very nature tend to injure one' s
personal or professional reputation, without considering extrinsic facts or
circumstances, are considered defamatory per se. " When a plaintiff proves
publication of words that are defamatory per se, falsity and malice ( or fault) are
presumed, but may be rebutted by the defendant." Kennedy, 935 So.2d at 675.
Thus, before liability can be imposed for the publication of words that are
defamatory per se, the defendant must be given an opportunity to rebut the
presumption. See Thompson v. Bank One of Louisiana, NA, 2013- 1058 ( La. App.
4th Cir. 2126114), 134 So. 3d 653, 662, writ denied, 2014- 0793 ( La. 6{ 30{ 14), 148
So. 3d 182.
These cases and others cited by the School Board, which hold that an abuse
of the right of free speech is actionable under Louisiana law, concern liability for
the commission of the tort of defamation, not an action to enjoin the utterance of
9 allegedly defamatory speech before it is spoken and before it is judicially determined to be defamatory. See Yanong v. Coleman, 53, 933 ( La. App. 2d Cir.
5/ 17121), 317 So. 3d 905, 911, writ denied, 2021- 01107 ( La. 11/ 10/ 21), 326 So. 3d
1249 (" Defamation is a tort which involves the invasion of a person' s interest in
his or her reputation and good name.... A cause of action for defamation arises out
of a violation of La. C.C. art. 2315."). See Johnson v. Purpera, 2020- 01175 ( La.
5/ 13/ 21), 320 So. 3d 374, 386 ( before the court on the defendant' s motion for
summary judgment to dismiss the plaintiffs cause of action for the tort of
defamation).
The United States Supreme Court explained the rationale behind prohibiting
prior restraint of speech not yet adjudged to be defamatory — a judgment in a
defamation case is subject to the " whole panoply of protections afforded by
deferring the impact of the judgment until all avenues of appellate review have
been exhausted." Nebraska Press, 427 U.S. at 559, 96 S. Ct. at 2803. The law' s
sanctions only become fully operative after the judgment has become final. A prior
restraint, by contrast and by definition, has an immediate and irreversible sanction.
Nebraska Press, 427 U.S. at 559, 96 S. Ct. at 2803.
Here, there has been no judicial determination that the words allegedly
spoken by Ms. Kellett and the accusations purportedly by her made were
defamatory or defamatory per se. Several School Board employees and Live Oak
Elementary School faculty and staff testified during the March 2020 preliminary
injunction hearing. Although each witness denied the truth of various accusations
purportedly made by Ms. Kellett, the trial court was not asked to, nor did it,
determine that Ms. Kellett, in fact, made these statements and was liable for
defamation.
The School Board is correct that the protection of the First Amendment does
not extend to defamatory and libelous speech. See Ashcroft v. Free Speech
IH Coalition, 535 U.S. 234, 245- 46, 122 S. Ct. 1389, 152 L.Ed. 2d 403 ( 2002) ( As a
general principle, the First Amendment bars the government from dictating what
we see, read, speak, or hear. But freedom of speech has its limits; it does not
embrace certain categories of speech, including defamation.) However, for First
Amendment protection to be in jeopardy, there must first be a determination that
the words are defamatory. Until words lose First Amendment protection, they are
guarded against prior restraint. See Nebraska Press, 427 U.S. at 559, 96 S. Ct. at
2803; Guste, 515 So. 2d at 437- 38; Johnson, 320 So. 3d at 387 (" to avoid the
chilling effect and self -censorship that defamation cases invite, it falls to the court
to determine in the first instance whether words fall outside the realm of protected
speech"). As the Supreme Court of California explained in Balboa Island Village
Inn, Inc. v. Lemen, 40 Cal. 4th 1141, 1149- 50, 156 P. 3d 339, 344- 45 ( 2007),
P] reventing a person from speaking or publishing something that, allegedly, would constitute a libel if spoken or published is far different from issuing a posttrial injunction after a statement that already has been uttered has been found to constitute defamation. Prohibiting a person from making a statement or publishing a writing before that statement is spoken or the writing is published is far different from prohibiting a defendant from repeating a statement or republishing a writing that has been determined at trial to be defamatory and, thus, unlawful. This distinction is hardly novel.
Emphasis original.) We also note that the preliminary injunction issued in favor
of the School Board prohibits more than the utterance of allegedly defamatory
statements. It prohibits speech that is merely disparaging or " frivolous" — speech
that is not within the categories excluded from First Amendment protection.
Therefore, we find the School Board failed to show that it was entitled to the
relief sought, i.e., a preliminary injunction preemptively enjoining, restraining, and
prohibiting the speech at issue. See La. C. C. P. art. 3 60 1; Dale, 971 So. 2d at 1141.
The trial court abused its discretion by granting this portion of the requested
preliminary injunction. See Turbine Powered Technology, LLC, 2019 WL 4201579
at * 9; Dale, 971 So. 2d at 1141. The trial court further erred by denying Ms.
11 Kellett' s motion for dissolution of those portions of the April 8, 2020 preliminary injunction that constituted an impermissible prior restraint on Ms. Kellett' s free
speech rights.
CONCLUSION
For the foregoing reasons, we recall the show cause order and maintain the
appeal. We reverse the portion of the February 22, 2023 judgment denying Ashley
Kellett' s motion for dissolution of preliminary injunction as to the trial court' s
denial of the motion to dissolve that portion of the April 8, 2020 preliminary
injunction, which constitutes an impermissible prior restraint on Ms. Kellett' s right
to free speech protected by the First Amendment.
We grant Ms. Kellett' s motion for dissolution of the preliminary injunction
in part and vacate subsection ( f) of the April 8, 2020 preliminary injunction in its
entirety. We also vacate the portion of subsection ( d) of the April 8, 2020
preliminary injunction enjoining, restraining, and prohibiting Ashley Kellett from
engaging in any form of written or verbal disparagement toward any Livingston
Parish School Board member, administrator, faculty, or staff at Live Oak
Elementary School, such that subsection ( d) of the April 8, 2020 preliminary
injunction is amended and shall state:
d) Enjoining, restraining, and prohibiting Ashley Kellett from engaging in any form of written, verbal, or physical displays of hostility or anger and/ or from making threats of any physical assault, and/ or any disorderly conduct that results in fear or disruption of activities through hostile and inappropriate behavior toward any LPSB member, administrator, faculty or staff at Live Oak Elementary School and/ or on any LPSS public school bus or other school property, and/ or while participating in any educational or other school related business or function, including but in no way limited to any Individual Education Plan ( TEP) or Individual Health Plan ( IHP) meetings or
evaluations required to facilitate the minor child's special education and health care needs;
We remand the matter to the trial court for further proceedings. Costs of this
appeal in the amount of $ 1, 770. 00 shall be cast against the Livingston Parish
12 School Board.
APPEAL MAINTAINED; JUDGMENT DENYING MOTION FOR DISSOLUTION OF PRELIMINARY INJUNCTION REVERSED IN PART; JUDGMENT GRANTING PRELIMINARY INJUNCTION VACATED IN PART AND AMENDED IN PART. REMANDED.