N.Y. Appellate Court Reverses Injunction Against Online Tabloid's Publishing "Images Depicting … Lynching in Association with Plaintiff"

The latest in the Brummer v. Wey (TheBlot) litigation, brought by Prof. Christopher Brummer, a former Obama nominee for the Commodity Futures Trading Commission.

So holds today's decision in Brummer v. Wey, from New York's intermediate appellate court. First, a brief summary of the facts, though you can see more in my earlier posts on the case, here and here:

Plaintiff, a law professor, sat on the appellate panel of the Financial Industry Regulatory Authority, Inc. (FINRA) that affirmed the lifetime ban imposed on two stockbrokers, nonparties Talman Harris and William Scholander. Defendants allegedly control a website known as TheBlot, a tabloid-style platform that has published a substantial quantity of material attacking FINRA's ban of Harris and Scholander and the FINRA personnel, including plaintiff, who were involved in adjudicating that case.

The attacks on plaintiff have included—in addition to name-calling, ridicule and various scurrilous accusations—juxtapositions of plaintiff's likeness to graphic images of the lynching of African Americans, and statements that the banning of Harris, who is African American, constituted a "lynching." In this action, plaintiff, who is also African American, seeks, as here relevant, an injunction against the posting on TheBlot of material attacking or libeling him. In this regard, he argues that the lynching images posted alongside photographs of him on TheBlot should be understood as a threat of violence against himself.

Now, more on the order below, and an earlier order from the same intermediate appellate court, though one that this panel ended up disagreeing with:

In the first order under review, entered June 6, 2017, Supreme Court granted plaintiff's motion for a preliminary injunction, enjoining defendants "from posting any articles about the Plaintiff to TheBlot for the duration of this action" and directing them to "remove from TheBlot all the articles they have posted about or concerning Plaintiff[.]"

Defendants filed this appeal and then moved this Court for a stay of the preliminary injunction. After an interim stay of the preliminary injunction was granted by order dated June 15, 2017, this Court entered an order, dated August 1, 2017, lifting the stay [i.e., reinstating the injunction] "to the extent of directing defendants to remove all photographs or other images and statements from websites under defendants' control which depict or encourage lynching; which encourage incitement of violence; or that feature statements regarding plaintiff that, in conjunction with the threatening language and imagery with which these statements are associated, continue to incite violence against plaintiff."

This Court's order of August 1 further provided that the interim stay of the preliminary injunction was lifted "so as to prohibit defendants from posting on any traditional or online media site any photographs or other images depicting or encouraging lynching in association with plaintiff." [Footnote: We note that this Court's partial lifting of the interim stay of the preliminary injunction does not constitute law of the case [i.e., is not binding on us] for purposes of our consideration of the merits of this appeal from the order granting the preliminary injunction (see Thompson v Armstrong, 134 A3d 305, 310 [DC 2016] ["law of the case is not established by denial of a stay"]).]

Now, the legal reasoning, which strikes me as quite right:

Prior restraints on speech are "the most serious and the least tolerable infringement on First Amendment rights," and "any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity." "[A] party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition," and, to do so, must show that the speech sought to be restrained is "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest."

While these principles would permit the restraint of speech that "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," the speech at issue in this case—although highly offensive, repulsive and inflammatory—does not meet this exacting constitutional standard…. [T]he speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening … against plaintiff. Rather, the lynching imagery at issue was plainly intended to draw a grotesque analogy between lynching and FINRA's banning of Harris, who is an African American (and is identified as such in the posts). [For example, one post includes, alongside a silhouette image of a lynching, and under a photograph of Harris, the following statement: "Talman Harris: 'These MOFOs lynched me ….'" Another post states: "AFRICAN AMERICAN BROKER TALMAN HARRIS LYNCHED BY FINRA, BECAUSE HE IS BLACK."] While this analogy is incendiary and highly inappropriate, plaintiff has not established that any reasonable viewer would have understood the posts as threatening or calling for violence against him.

Initially, we reiterate that, although it may ultimately be determined that defendants have libeled plaintiff, "[p]rior restraints are not permissible … merely to enjoin the publication of libel" (Rosenberg, 290 AD2d at 239; see also Giffuni v Feingold, 299 AD2d 265, 266 [1st Dept 2002]; cf. Dennis v Napoli, 148 AD3d 446 [1st Dept 2017] [affirming preliminary injunction against sending unsolicited defamatory communications about the plaintiff, who was not a public figure, directly to her colleagues, friends and family]).

Moreover, even if the posts could reasonably be construed as advocating unlawful conduct, plaintiff has not established that any "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (Brandenburg v Ohio, 395 US 444, 447 [1969])….

The court does also rule, though, that, even though the injunction was unconstitutional, defendant could be held in contempt for violating it while it was in effect (the so-called "collateral bar" rule followed by New York courts, federal courts, and the courts of many other states, though not followed by some other states).

I'm pleased to say that Profs. Martin Redish (Northwestern), Steve Shiffrin (Cornell), and I filed an amicus brief supporting this result; many thanks to Daniel Schmutter, who was our invaluable pro bono local counsel (and who has helped me in many cases in the past, in New Jersey and New York).