Opinion
No. 28753
November 26, 2008.
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CIVIL NO. 1SS06-1-01393)
RECKTENWALD, C.J., WATANABE and FUJISE, JJ.
ORDER
Upon consideration of the Second Motion for Stay Pending Appeal (Second Motion for Stay) and attached exhibits filed by Respondents-Appellants Eric L. Davies and Mirella M. Davies (collectively, Davieses or Appellants) and the memorandum in opposition filed by Petitioners-Appellees David T. Moysa and Jane F. Moysa (collectively, Moysas or Appellees), it appears that Appellants seek a stay of an injunction.
The First Amended Order Granting Petition for Injunction Against Harassment (Order) was entered by the District Court of the First Circuit (district court) on July 31, 2007. The Order contained the following special conditions:
The Honorable Phillip Doi entered the Order.
(1) Respondents shall not play any music, sermons, or anything else on a television, stereo, other sound reproduction device such that the sound can be heard thirty (30) feet or more away. The thirty (30) or more feet shall be measured from the point where the sound is audible (a) to the nearest part of the Davies residence, if the sound source is within the Davies residence, or (b) to the sound source, if that source is not within the Davies residence. Notwithstanding anything to the contrary, it shall not be a violation of this injunction with respect to sounds audible within the Davies property. (2) Respondents shall not make any statements to any third party regarding the Petitioners; provided, however, that Respondents may conduct business or file complaints with the homeowner's association.
. . . .
This injunction order is enforceable in all 50 states, District of Columbia, U.S. Territories, and Tribal lands [ 18 USC Section 2265]. Interstate violation of this order is subject to federal criminal prosecution [ 18 USC Sections 2261(g), 2261A and 2262].
Thus, the Order contains two distinct provisions: the first restricting the volume of sound (Restriction 1) and the second restricting statements by Appellants to third parties regarding Appellees (Restriction 2). Appellants seek a stay of the Order.
The standard for evaluating a stay pending appeal is similar to the standard applicable to a preliminary injunction. United States v. Liddell, No. 07-00310 SOM-KSC, 2008 WL 298948 at *1 (D. Hawai'i Feb. 4, 2008). The test applicable in Hawai'i to a preliminary injunction is: "(1) Is the plaintiff likely to prevail on the merits? (2) Does the balance of irreparable damage favor the issuance of a temporary injunction? (3) Does the public interest support granting the injunction?" Life of the Land v. Ariyoshi, 59 Haw. 156, 158, 577 P.2d 116 (1978); see also Stop Rail Now v. DeCosta, No. 29354, Amended Order of the Court Denying Appellants' Emergency Motion for Preliminary Injunction by Leonard, J., 2008 WL 4542529 at *6 (Oct. 2, 2008).
Applying those factors here, we conclude that Restriction 1 should not be stayed pending appeal, but that Restriction 2 should be stayed.
With regard to Restriction 1, Appellants have not demonstrated a likelihood that they will prevail on the merits on appeal. A restriction on the volume of sound from a device based upon that sound being audible 30 feet from the source does not necessarily violate free speech. In State v. Ewing, 81 Hawai'i 156, 914 P.2d 549 (App. 1996), this court held that Ordinances of Honolulu § 41-31.1, which made it unlawful to play a device for sound reproduction from a vehicle at a volume audible from 30 feet from the source of the sound, was not overbroad so as to infringe upon free speech because it "does not regulate the content of the sound from the reproducing device." Id. at 164, 914 P.2d at 557. Similarly, Restriction 1 in this case does not restrict the content of the sound. Moreover, in the absence of a violation of the constitutional right of free speech, there does not appear to be any irreparable damage caused to Appellants by Restriction 1. Nor does the dispute between appear to involve the public interest. Accordingly, Appellants have not demonstrated that Restriction 1 should be stayed pending appeal.
However, with regard to Restriction 2, Appellants have demonstrated a likelihood of success on the merits. In MDG Supply, Inc. v. Diversified Investments, Inc., 51 Haw. 480, 463 P.2d 530 (1969), the circuit court's order prohibited a defendant, Ellis, from contacting anyone connected with a related foreclosure. The Hawai'i Supreme Court held that: "there appears to be a great likelihood that Ellis will prevail on the appeal inasmuch as the order, on its face, curtails his right of free speech."Id. at 482, 463 P.2d at 532. The order in the present case appears even broader than the order in MDG Supply, Inc. Rather than just prohibiting contact with certain persons as did the order in MDG Supply, Inc. (Id. at 480-481, 463 P.2d at 531), the district court in this case prohibited the Davieses from making "any statements" about the Moysas to any third parties, although the order does permit the Davieses to "conduct business or file complaints with the homeowner's association."
The scope of the district court's order appears to regulate the content of speech by the Davieses by prohibiting comments regarding the Moysas. A curtailment of the right to free speech based on content is presumptively invalid. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971). Restriction 2, if it is a restriction based on content as it appears, would be presumptively invalid. Restriction 2 does not appear to be either narrowly drawn or demonstrably necessary to serve a compelling state interest. Statements that are entirely innocuous may nevertheless violate the district court's order if they involve the Moysas and are made by the Davieses to a third party.
Since Restriction 2 may impose an undue restriction on Appellants' free speech, it appears that the enforcement of Restriction 2 presents a threat of irreparable harm that favors the granting of the stay.See MDG Supply, Inc., 51 Haw. at 482, 463 P.2d at 532 ("Ellis is threatened with irreparable injury because the order unduly stills his voice and its broad reach abridges his rights with respect to the foreclosure sale."); see also Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673 (1976); Summum v. Pleasant Grove City, 483 F.3d 1044 (10th Cir. 2007).
Finally, the dispute between the Davieses and the Moysas is a private matter that does not appear to affect the public interest. Nevertheless, the protection of free speech rights is not adverse to the public interest. See Summum, 483 F.3d 1056-57 (10th Cir. 2007). Considering all of the applicable factors, we conclude that the Appellants have established that Restriction 2 should be stayed pending appeal.
Therefore,
IT IS HEREBY ORDERED that the Respondents-Appellants' Second Motion for Stay Pending Appeal filed on October 16, 2008 is granted with respect to the portion of the district court's Amended Order Granting Petition for Injunction Against Harassment filed on July 31, 2007, which states "Respondents shall not make any statements to any third party regarding the Petitioners; provided, however, that Respondents may conduct business or file complaints with the homeowner's association" which is stayed pending final resolution of this appeal. In all other respects, the Respondents-Appellants' Second Motion for Stay Pending Appeal filed on October 16, 2008 is denied.