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).

Comments

[James Pollock]

I'm having trouble figuring out what was accomplished via this litigation.

Apparently, defendant was willing to defy the order while it was in place, for which they may be punished.

So, getting the injunction lifted has... what effect, exactly?

[Alcibiades]

Thanks Prof Volokh for this post, your summary of the legal opinion and contribution to defending First Amendment principles.

Contrast this with the way freedom of expression issues are dealt with in Europe and the low bar there for incurring legal penalties when some group or individual is offended.

[Harvey Mosley]

IANAL but I have a hard time with the idea that violating an unconstitutional court order can be punished.

[Teecrafter]

Your reaction is quite reasonable.

Many lawyers have trouble dealing with the collateral bar rule because it is a bit of a paradox that an illegal restraining order which violates the Bill of Rights should be enforceable until reversed on appeal. But the judges are touchy, aristocratic, and unionized. Go read about how MLK got locked up in the Birmingham Jail just to see how absurd the rule's effect can be, and how it is abused to impose tyranny in some cases, as in the jailing of MLK and his followers in Birmingham when they defied an illegal injunction not to march. Do a little googling for the Harvard U article about MLK's dilemma. https://tinyurl.com/ycvso2xq

[Alcibiades]

Isn't this rule more to do with someone ignoring or disobeying a judge's ruling?

[Bartholamew Kendrick]

Surely there must be more sympathetic people to defend (through an amicus brief) than Benjamin Wey.

I get it - principles need to be upheld. But have you looked at the blatantly racist and defaming hit-job website that was set up against Dr Blummer? (https://professorchrisbrummer.com/)

As far as prior restraint goes, this doesn't even seem that bad. In a lot of the prior restraint cases you blog about, the orders are quite overly broad, but this order only restricted speech that "incited violence" or "images depicting or encouraging lynching in association with plaintiff."

In my view, prior restraint is generally bad (and a very powerful weapon), but in cases like this where there is such clear defamation and the prior restraint is narrowly tailored only against such defamation I have no problem with it.

Your prior blog post about this said you don't recall any appellate court enjoining "images on facts such as this," but I think you'd really be reaching by calling any of the assertions made by the defendant factual.

[Alcibiades]

The speech may have been highly offensive but it in no way was an incitement to violence.

There's also no "truth test" calculus applied to speech for it to be protected by the First Amendment.

[TwelveInchPianist]

"...in cases like this where there is such clear defamation and the prior restraint is narrowly tailored only against such defamation I have no problem with it."

The guy seems like a crackpot, but the "lynching" is clearly a metaphor, no?

[Stephen Lathrop]

Your view is that using a metaphor to deliver a threat makes the threat okay?

[Teecrafter]

Oh, grab us. A threat to be proscribed or punished must be an objective, specific, credible threat to do harm, not a metaphor. Do you ever read any caselaw? Have you been hanging out with Preet Bharara or Niketh Velamoor who suffered paranoid delusions when anonymous commenters at Reason.com joked about running the judge in the Silk Road case through a wood chipper a la the movie FARGO?

[Noscitur a sociis]

Surely there must be more sympathetic people to defend (through an amicus brief) than Benjamin Wey.

No doubt there are. And as you go on to illustrate, it's cases like this that are perhaps in the most need of solid, sophisticated legal assistance:

As far as prior restraint goes, this doesn't even seem that bad. In a lot of the prior restraint cases you blog about, the orders are quite overly broad, but this order only restricted speech that "incited violence" or "images depicting or encouraging lynching in association with plaintiff."

It's always easy to say in cases like this, "well, they're just censoring him a little bit, and he had it coming anyway." Protecting free speech means being vigilant against all incursions, even when -- especially when -- the speaker is someone who doesn't appear to deserve much support.

[Alcibiades]

I think it's safe to say, SL doesn't get it at all, and is clueless concerning the raison d'etre of the First Amendment.

[Eddy]

"The court does also rule, though, that, even though the injunction was unconstitutional, defendant could be held in contempt for violating it"

[Stephen Lathrop]

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.

I am a reasonable viewer. Indeed, I am a reasonable viewer with considerable background in making, using, and publishing images, for all kinds of commercial and non-commercial purposes, including metaphorical purposes. I understand the posts, as described, as threatening. Whether they call for violence I am less certain. But that publishing them unreasonably risks triggering violence seems beyond question.

This is another in a line of cases brought up by EV that all share the same flaw. That is, they invoke on behalf of unedited internet publishing, legal standards which evolved under different circumstances, pre-internet. What made those standards reasonable and workable was the near-certainty that stuff like that described here could never get past any editor capable of giving it world-wide (or even any considerable) publication.

Knowing such material would be stopped privately saved the courts any necessity of blocking it legally. Had that not been the case, the legal standards EV now invokes would not be as they are, but far more restrictive. Society now, no less than previously, should not be subjected by legal fiat to outrages which bring speech freedom into such disrepute that they risk making it politically impossible to defend.

[David Nieporent]

I am a reasonable viewer.

This is one of those self-refuting comments.

I understand the posts, as described, as threatening. Whether they call for violence I am less certain. But that publishing them unreasonably risks triggering violence seems beyond question.

Nope; I question it. Saying, "He's trying to lynch me" does not reasonably or unreasonably risk triggering violence, especially given that the lynching in question is purely metaphorical. But in any case, as always you get the law wrong. "Risking triggering violence" is a different concept than "threatening."

And, as always, your pro-censorship claims are based on false premises. Racist and anti-semitic publishing is hardly a new thing.

[Alcibiades]

"I am a reasonable viewer..."

And yet, as the previous comment has highlighted, you go on to demonstrate precisely the opposite.

[Stephen Lathrop]

Okay, Alcibiades. Let's hear your arguments. Explain why what I said is unreasonable.

To give you something to start with, I have been professionally involved in both newspaper publishing, and graphic design on behalf of Fortune 500 clients, among others. For all sorts of reasons, none of them would have thought it reasonable to publish a lynching photo to publicize anything, nor to make any point not directly related to lynching. Nor would anyone I ever met in the publishing business, or in the design industry, have supposed that publishing a lynching photo?in any context except a journalistic discussion of lynching?would not create unreasonable risk of triggering a violent response.

Seems like a standard of reason, to be meaningful, ought to take into account the actual routine practices of experts who frequently confront the kinds of choices we are talking about. Or do the courts enjoy such latitude for self-assurance on all subjects that they never need to explore beyond their own conjectures?

So find me some established publishers who use lynching photos to make metaphorical points unrelated to actual lynching, why don't you. That will at least establish you understand what this discussion is about. From there, we can try to figure out how you would know what is or is not reasonable to publish.

[Alcibiades]

I understand very clearly your "argument", you're coming in loud and clear, no static at all.

All your verbiage amounts to nothing more than an appeal to authority, yours that is, plus a desire to codify your value judgements and aesthetic preferences, presumably through legal means, on everyone else; very obvious, very crude and very authoritarian.

Justice Samuel Alito has already dealt with this species of rhetorical sophistry:

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express "the thought that we hate."

Amen...

[Stephen Lathrop]

Have at it. Stupidly demean anyone you want. I don't want the law to stop you. Just don't weaponize it by including threats. Where did Alito say those were okay? You didn't include that part. Maybe it's not there.

[Alcibiades]

The only locus any threats were made was inside your fevered imagination. Luckily, for everyone else that is, no one lives there but you.

[Stephen Lathrop]

Or, alternatively, Alcibiades, why don't you take a look at the one historically well-established industry which did publish lynching photos. You know, the small post-card publishers who got out gruesome cards as souvenirs for attendees, and to help their friends and relatives share the fun. Give some thought to that, and then explain to me why it wasn't unreasonably threatening to do it.

[Alcibiades]

The only threatening behavior here is your desire to torture the English language to achieve an outcome you desire and codify it into law.

[Stephen Lathrop]

You are trying to change the subject from threats to censorship, which I did not address. I asked you why standards actually used by publishers to determine what is reasonably free of threatening content should not be legally relevant. You ignored the question.

[Alcibiades]

Your experience working with Fortune 500 Companies notwithstanding, why should any publishers' editorial standards be allowed to establish the legal contours of First Amendment jurisprudence. Should the inhouse editorial policies of the publisher's that produce the KKK's literature be legally relevant? What about the Southern Baptists, should we be looking to them for guidelines on how to navigate First Amendment case law and establish legal precedent.

Your arrogance is astonishing, you set yourself up, by virtue of your work experience, as being uniquely qualified to establish the canon of what is and is not acceptable.

SCOTUS is quite clear on this, only speech that a reasonable person could conclude would lead to "imminent lawless action" does not enjoy First Amendment protection.

The key phrase in the above, of course, being "reasonable person"...

[Stephen Lathrop]

My appeal has not been to authority. It has been to experience. And not to my own experience at all, but instead to the accumulated experience of publishers generally, and the ways they have adapted that experience to guide decision-making about what constitutes a published threat. As a precaution against arrogance, I'll choose that approach?with its emphasis on collective experience among the people most engaged with the subject?ahead of resort to your private interpretation of pure legal theory every time.

Your comments sizzle, but don't even try to engage. You want another try? Remembering that we are talking about threats conveyed by published lynching pictures, here is the challenge again. Explain why what I have said is unreasonable. One way you could do that is to show I have mischaracterized the publishing practices I described. For instance, you could show that mainstream publishers use lynching photos as metaphors in published communications, that doing it is commonplace, and that nobody finds that threatening.

Or you could show that post-lynching picture postcards, circulated to celebrate the event, were no part of the threat to blacks in the Jim Crow South?or at least that the blacks didn't think so.

Let's see how well you engage.

[Alcibiades]

"As a precaution against arrogance, I'll choose that approach?with its emphasis on collective experience among the people most engaged with the subject?ahead of resort to your private interpretation of pure legal theory every time."

You deny you've engaged in any appeals to authority but then write the above thereby displaying an astonishing lack of self-awarenes.

As for my resorting to "private interpretation of pure legal theory every time", my "private interpretation" on First Amendment jusrisprudence harmonizes precisely with that of the highest court in the land, the Supreme Court. Rather, it is your private gloss on this matter, that stands in stark contrast with settled First Amendment case law.

[Stephen Lathrop]

Well, why didn't you say so? Just tell us what the Supreme Court has said is the reasonable posture for use of lynching photos as metaphors, and we can be done with the disagreement.

But I do now see what you mean by "appeals to authority." If I have it right, you mean "authority" is whatever experience?however broadly it's based?which qualifies as anything other than an appeal to total ignorance.

Also? You're still not engaging.

[Alcibiades]

I'm not remotely interested in engaging with you re your creepy fascination with "lynching photos".

If you've a problem with current First Amendment case law then I suggest you take it up with one of the Nine.

[David Nieporent]

Uh, for the same reason we don't ask attorneys about how to make calamari or ask podiatrists how to edit newspaper articles? It's far outside their area of expertise? Publishers are not lawyers and don't, as a class, have anything informed to say on the topic.