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How the Dogwood Festival lawsuit could involve First Amendment violations


As two former Dogwood Festival executive directors continue their legal battle over whether one libeled the other on TikTok, one legal expert says the proceedings may have violated the defendant’s constitutional rights.

Earlier this month, Carrie King, the festival’s executive director from April 2006 to August 2018, filed a complaint in Cumberland County Superior Court against Malia Kalua Allen, who served in the role from December 2018 to July 2020. 

In the suit, King alleged dozens of TikToks posted by Allen — including at least 34 posts specifically about her — were libelous and contained threats against her. The social media posts stemmed from a March 18 CityView story about the Dogwood Festival’s future, which reported that the festival had no executive director and had struggled financially in recent years. 

Cumberland County Superior Court Judge Robby Hicks granted a temporary restraining order against Allen during an April 3 hearing that occurred in his chambers, ordering that Allen immediately remove all social media posts with false statements and threats about King and refrain from further similar posts. 

Judge Regina Joe turned that temporary restraining order into a preliminary injunction Monday morning, ruling that the evidence presented to her in the roughly 30-minute hearing gave her reason to believe the previous order was fair. An injunction is a court order compelling someone to stop doing or to start doing a particular action.

Here’s why an attorney with Duke University School of Law’s First Amendment Clinic disagrees with that order. 

‘I am at a loss’

Amanda Martin, the supervising attorney for the clinic, told CityView Monday that after reviewing the court documents at CityView’s request, she found several issues with the case thus far. 

First, Martin said, the April 3 hearing about the temporary restraining order should not have taken place in Hicks’ chambers.

“It is not typical for hearings to occur in chambers, and I would suggest that there’s reason to believe it was not proper in this case,” Martin said. “The court conducted a secret hearing such that the public could not see and hear what was taking place. That should only occur in the most rare and extraordinary of circumstances, when something of unusual and extreme sensitivity is being discussed.” 

Instead, she said, the hearing should have occurred in an open courtroom.

Furthermore, the temporary restraining order against Allen should not have addressed the allegedly defamatory statements about King, Martin said. 

“A TRO [temporary restraining order] is just not an appropriate tool for a defamation case, and so I am at a loss to understand how the court reached the conclusion that this was an appropriate remedy,” she said. “The vast majority [of the posts], I assume, are non-threatening statements about the plaintiff that the plaintiff contends are false and defamatory, and she will have her opportunity to litigate that. 

“But she should not win before she has litigated, and that is what the court has done here,” Martin continued. “The court has said, ‘You must take your posts down even though we have not litigated to the end to determine whether these posts are even factual, whether they are otherwise privileged, whether they are subject to interpretation and nuance.’” 

That could mean Allen’s First Amendment rights have been violated, she said, noting that the U.S. Supreme Court has held that losing one’s right to free speech for even a small amount of time does irreparable damage. 

“The proper remedy is for a party to file a defamation suit, not to stop the speech before a lawsuit has been litigated,” Martin said via email.

What happened Monday?

Just over an hour and a half before Monday’s hearings, Allen filed a response to King’s complaint, challenging the allegations leveled against her. According to the response, Allen argued that King inserted herself into the conversation by making “disparaging remarks” online, thus compelling Allen to defend herself on social media.

In the response, Allen said she still believes King allegedly mismanaged the festival’s finances and received “kickbacks” from sponsors while serving as executive director. 

Moreover, Allen said that her social media posts were crucial to alert the public of alleged financial misconduct surrounding an important community event. She argued preventing her from speaking about the situation would be a violation of her free speech.

“As a former Executive Director of the Dogwood Festival organization and a concerned member of the community, [Allen] had a duty to warn others about potential mismanagement of public funds and financial irregularities within the organization,” Allen wrote.

In her response, Allen requested:

  • The dismissal of all of King’s claims
  • An injunction prohibiting King from taking further legal action against Allen related to this issue and prohibiting King from contacting Allen further
  • A declaration from the judge that Allen had the right to freely express herself
  • A declaration from the judge that Allen could receive damages for “any adverse employment consequences resulting from this litigation” or other repercussions

During the hearing, which took place virtually, King, Allen and King’s attorney, Jonathan Strange, were each present. King, who lives in North Myrtle Beach, testified that she never stole money from the Dogwood Festival or drank while serving alcohol under the festival’s ABC permit. 

“[Alcohol sales are] our bread and butter, that is how we make our money, and there is absolutely, positively nothing I would ever do to mess that up,” King said. 

King said she was alerted to Allen’s social media posts by other former board members and decided to comment to see if Allen was OK. Even as the situation escalated, King testified she did not feel she was in danger, though in the original complaint, she stated she changed travel plans because she felt Allen might harm her. 

“I don’t necessarily feel like she’s going to seek me out and try to beat me up or anything like that, but it’s very childish,” King said.

Allen, who represented herself, challenged King’s assertion that she commented on her social media posts with positive intentions, but King held firm. 

“You had posted over 10 videos in eight hours,” King said. “You seemed a little unstable.” 

Though Judge Joe granted Strange’s request for a preliminary injunction mirroring the temporary restraining order, the terms of the order were not immediately available, with Joe noting Strange would need to draw them up and present them to Allen for review. 

The next hearing in the case had not yet been set as of Monday afternoon.

Editor’s note: Allen worked for the sales department of CityView Magazine from July 2020 to March 2021. She was not involved with CityView’s news operations.

Reporter Lexi Solomon can be reached at lsolomon@cityviewnc.com or 910-423-6500.

This story was made possible by contributions to CityView News Fund, a 501c3 charitable organization committed to an informed democracy.

Dogwood Festival, lawsuit, First Amendment, Malia Allen, Carrie King, TikTok