Free Speech

No Gag Order in Lawsuit Against Church Alleging Child Sexual Abuse Coverup

The court rejects the argument that publicity about the lawsuit might taint jury pool, and "has imposed a deep emotional burden upon [church's] current members, imposes a possibility of some clients of the church's weekly meal, food pantry, counseling programs, or other services withdrawing their participation [and] imposes a possibility of loss of donors."


An interesting decision from two months ago, now on appeal—Barker v. Victorious Life Christian Church, from New York Albany County trial court Judge Michael Mackey:

In this action brought pursuant to the New York Child Victims Act, CPLR § 214-g [which extended the statute of limitations on cases involving minor sex victims -EV], defendant Victorious Life Christian Church … and defendant Dominick Brignola … separately move for a "gag" order restraining plaintiff Abigail Barker and her counsel from "communicating with representatives of the media, or with any person or entity whom plaintiff or [her] attorney knows or would have reason to know might disseminate information to the public or media pending the outcome of these proceedings" and an order requiring plaintiff and her counsel "to take all steps necessary to remove from the internet its prior media disclosures, press releases and presentations." …

Plaintiff [sued] …, alleging that defendant Mark Rhodes … sexually molested her in or about 1998 when she was five years old. The incident allegedly occurred while plaintiff and defendant Rhodes were members of VLCC in Troy, New York. Plaintiff claims, among other things, that the defendants orchestrated a cover-up of the alleged abuse and pressured plaintiff's parents not to pursue an investigation.

The day after plaintiff filed her Summons and Complaint, plaintiff's attorney, Trevett Cristo, posted a "press release" on its Facebook page announcing that it was partnering with the Noaker Law Firm, LLC … and James, Vernon & Weeks, P.A. … for child sex abuse advocacy in New York State. The press release contained a hyperlink to a copy of the Summons and Complaint in this action as well as a hyperlink to an article posted on Noaker Law's website titled "Albany Woman Files Sex Abuse Lawsuit Against Victorious Life Christian Church and Pastor; Says 'Now is the Time for Accountability.'" A hyperlink to Trevett Cristo's press release was also posted on Noaker Law's Facebook page.

That same day, the Spectrum Local News published an article titled "Child Victims Act Suit Filed Against Troy Church." The Spectrum Local News article reported on the filing of plaintiff's lawsuit and contained quotes from plaintiff's attorney, Melanie S. Wolk of Trevett Cristo, defendant Brignola, and the plaintiff. Trevett Cristo, Noaker Law, and James, Vernon posted hyperlinks to this article on their respective Facebook pages. The Facebook posts apparently prompted replies and commentary from those who viewed it.

On January 3, 2021, the Albany Times Union published an article about plaintiff's lawsuit titled "Child abuse allegations against Troy church divide family, friends, community." The article begins with a quote from VLCC Pastor Phil Smith's sermon, delivered on the Sunday after plaintiff's complaint was filed, which seems to address the accusations in the complaint (VLCC posted a video of the sermon on its Facebook page). The article also quotes plaintiff describing how the lawsuit has affected her relationships with friends, family, and the church community.

Defendants now move for a "Protective Order/Gag Order" to prevent plaintiff and her counsel from any further contact with the media, any posting of links to other media articles, and an injunction requiring plaintiff's counsel to remove the prior social media posts. VLCC's counsel asserts that the publicity brought by this lawsuit "has imposed a deep emotional burden upon its current members, imposes a possibility of some clients of the church's weekly meal, food pantry, counseling programs, or other services withdrawing their participation [and] imposes a possibility of loss of donors." Similarly, defendant Brignola's counsel asserts that the negative publicity surrounding this lawsuit has hurt Mr. Brignola's law practice and that the topic has been brought up by potential clients. Absent a "gag" order, defendants argue, there may be articles in the press and/or social media that will compromise the ability of the jury to render a fair verdict, untainted by the publicity this case has generated.

"Orders restraining extrajudicial comments by the parties or their attorneys are not generally permitted unless there is a reasonable likelihood of the existence of serious threat to the right to a fair trial." "It is incumbent upon a trial court to ensure that each of the parties receives a fair trial and, to that end, possesses both the power and responsibility to safeguard their rights. The trial court, in so doing, must bear in mind the fact that prior restraints upon the rights of free speech and publication may only be overcome upon a showing of a clear and present danger of a serious threat to the administration of justice." The burden is on the party requesting the restraint to demonstrate that plaintiff's or counsel's statements will compromise their right to a fair trial.

Here, the defendants have not met their burden of demonstrating entitlement to a gag order. Absent a factual showing of a necessity for prior restraints, imposition of a gag order is constitutionally impermissible. Although the defendants have asserted, in conclusory fashion, that potential news/social media coverage might taint the jury pool, they have not made a factual showing that the possibility of such coverage presents a "clear and present danger" to the administration of justice.

It is worth pointing out that defendant Brignola has made use of the press to advance his own view of this action. Indeed, the Spectrum News article quotes Mr. Brignola as saying that "The legal word games that attempt to create some type of culpability where none exists is sheer nonsense and actually poorly done." In other words, the plaintiff is not alone in making the type of statements to the press about which the defendants now complain.

This notwithstanding, the Court assumes that all counsel will act in a professional manner, not engage in any conduct that is against ethical rules, and not make announcements merely for the purpose of harming their adversary….

NEXT: Fred Shapiro Guest-Blogging on The New Yale Book of Quotations

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  1. Prof EV – you have posted a string of items in which a court has rejected the idea of keeping things secret.

    It would be good if you were to post an item or two in which the court has gone the other way. It would be interesting to know what courts do think passes muster for secrecy.

      1. Thank you. Now that I think about it, I remember seeing the one about the university.

        Interestingly the university one seemed to take into account the unopposedness of the motion as a justification for secrecy, while another one said that lack of opposition was irrelevant.

        But anyway our list of “OK reasons” is :

        1. the university’s interest in keeping external reviewers names confidential
        2. the safety of witnesses
        3. diplomatic concerns
        4. the protection of children

        Seems to me that one of these things is not like the others.

    1. Whenever I hear people express their relief upon learning that someone has been charged with a reviled crime — ‘Did they catch him? They did? Well, that’s a load off the mind!’ — I mentally hear the phrase, ‘We’ll give ’im a fair trial, then we’ll hang ’im.’ If I point out the person may be wrongly accused and is being railroaded, I could receive the erroneous refrain, ‘Well if he’s truly innocent, he has nothing to worry about.’

      It’s why I strongly feel the news-media should refrain from publishing the identity of people charged with a crime — especially one of a repugnant nature, for which they are jailed pending trial (as is typically done) — until at least after they’ve been convicted. Considering the serious flaws, even corruption, in the law-enforcement and justice system — great injustices committed, both hidden and exposed — no one should have their name permanently tarnished and life potentially ruined because the news-media insists upon immediately running a breaking story.

      To me, it all epitomizes an unjust presumption of guilt.

      1. I recently learned that “The Process is the Punishment” was the name of a book about the legal system almost 50 years ago. I always thought the phrase was much more recent.

        The modern era has merely tacked government encouraged defamation and harassment to the other “process punishments” they inflict upon their victims.

        It’s a bit disturbing to think that the problem was so well known that it had a pop-culture catch phrase two generations ago, and yet there’s been no progress on fixing it.

        1. One person’s problem is another person’s solution. The process being the punishment is a solution to the inability to actually convict everybody it’s desired to punish.

  2. Question: I’ve always understood there was a litigation privilege for factual statements made in court proceedings. Does that apply when you publish those statements outside of court (like on a website) with some statement affirming them as true facts? I would think so.

    1. Darwinnie: It varies from state to state. I believe that in my own California, such statements are privileged — but not everywhere, see, e.g., this post.

      1. Thank you for that Professor Volokh.

  3. Where are the posts dissecting Alex Berenson getting banned from Twitter? (He says he’s going to pursue legal action). And where are the posts on the judge who took away a Chicago woman’s custody of her son because she wasn’t vaccinated?

    Or are we just going to keep getting post after post of Eugene writing “I think that’s just about right” about judges’ decisions to rubber stamp vaccine mandates and mask mandates?

    1. And before anyone calls her an anti-vaxer, this is a woman who has had adverse reactions to vaccines in the past. With her own doctor advising her not to get the covid vaccination. Apparently the judge thinks he know medicine better than a medical doctor.

      1. Respectfully, you’re both missing the point. Custody is about placing the child where the child will be better off, which in this case means with a vaccinated parent. It’s not to punish the mother; it’s about protecting the child. I feel terrible for this woman, but this is no different than any other situation in which someone’s medical condition means the child is better off with the other parent.

        1. This wasn’t just giving the father custody, This went to the point of denying the mother any visitation rights. There is no call for that other than punishing the mother.

        2. ” in which someone’s medical condition means the child is better off with the other parent.” Except the mother doesn’t have a medical condition. She MIGHT get a medical condition. This is analogous to denying custody to the parent who drives more often because they are putting the child at more risk of getting into a car accident. This isn’t even a question of primary placement but of denying one parent any rights.

          And it needs to be repeated – this child’s risk of serious harm from getting COVID is almost nonexistent.

      2. I suspect the news article might be using the term “doctor” liberally. Plenty of people refer to a PA or a naturopath, etc. as “doctor” as if that immediately validates whatever they say, even when that person is (a) not a medical physician and (b) is an idiot. But I also don’t rule out a judge being an idiot. So much left to speculation on this one.

      3. “Apparently the judge thinks he know medicine better than a medical doctor.”

        and apparently you think you know law better than a sitting judge.

    2. I await your own blog with baited breath.

      1. “I await your own blog with baited breath.”

        Spit out the bait, and learn what “bated breath” is.

        1. Properly, it’s ‘bated breath, as “bated” is just a contraction for ‘abated”, which is to say, you’re holding your breath while waiting.

        2. Perhaps you took my bait. Perhaps you should get a sense of humor.

          1. “Perhaps you should get a sense of humor.”

            Well, I can’t take yours, as there doesn’t seem to be one there.

            1. Says the Joker who continues to fall hook, line, and sinker for my multiple baits.

              1. You fucking responded to a joke by demanding that I need to get a sense of humor.
                You have a Special Ed level of intellect.

    3. Where are the posts dissecting Alex Berenson getting banned from Twitter? (He says he’s going to pursue legal action).

      And I say he’s going to lose, and (depending on where he sues) will end up having to pay Twitter’s legal fees. There’s no legal issue to dissect.

      1. You’re failing to account for the conservative penchant for wishful thinking. He’s going to sue Twitter because Twitter won’t let him use Twitter’s property as he sees fit over Twitter’s objections, and he’s going to win because wishful thinking can overcome reality if you want it badly enough.

        1. Also, he’ll get help from the recently-reinstated President Trump, who totally won the 2020 election, in a landslide.

  4. It’s not to punish the mother; it’s about protecting the child.
    Even more respectfully, no. The Covid infection fatality rate for an 11 year old child is microscopic. If judges were going to take such statistically tiny risks into account, they’d routinely refuse all paternal access to the child on the grounds that, statistically, men have more dangerous car accidents.

    And as for Mom getting a live in boyfriend – fuggedaboutit. The risk of child homicide by non-Dad is at least one, and getting on for two, orders of magnitude higher than by Dad.

    Trust me, it’s to punish the mother. The safety of the child doesn’t even make it to pretext.

    1. If you’re limiting it to fatalities you’re right but there’s no reason a judge should take such a restrictive view. If the child tests positive for COVID that’s the end of in person school at least for the semester, and God forbid he’s already given it to his classmates before it’s discovered. Which is more restrictive: placing the child with a vaccinated parent, or isolation if he tests positive for COVID?

      1. The odds of the child getting sick enough if he does contract Covid, to even be tested, are themselves pretty slim; A kid who gets tested for Covid is a rare one to begin with.

        That’s why the hospitalization rate for pediatric Covid is as high as it is: A kid gets hospitalized for something else, a routine test picks of an asymptomatic case, and, bingo: It goes in the stats as hospitalized with Covid.

        1. Having a kid be hospitalized for anything is fairly traumatic for most parents.

    2. “Trust me, it’s to punish the mother. The safety of the child doesn’t even make it to pretext.”

      It can be both. If you don’t believe mother’s claim that non-vaccination is by medical advice, and assume it’s based on other motivation (which I’m not suggesting should be done, but quite possibly has been done), then being unwilling to get vaccinated to protect the child from the real (if somewhat small) risk of coronavirus is on par with, say, not putting the child in a seatbelt when driving him in a car. (the risk of being in a severe accident on any specific trip are fairly low, and being seat-belted doesn’t reduce that risk at all.)
      If you start by making that one assumption, then being unvaccinated shows a disinclination to protecting the safety of the child, a disinclination which can also manifest in other areas. Child custody cases are particularly contentious, and truth can be an early casualty. I lived through one, and I have sympathy for the judges who get to deal with them, and sort out the true issues from whatever it is the parents are saying about them.

  5. Jesus must be spinning in heaven knowing what atrocities have been connected to Christ-ianity. Christ unmistakably emphasized love, compassion and non-violence — especially towards ALL children — the opposite of what enables the most horrible acts of human cruelty to occur on this planet. Sadly, sometimes those atrocious acts are allowed to remain a buried secret. …

    Intense trauma from unchecked toxic abuse, sexual or otherwise, usually results in a helpless child’s brain improperly developing. If allowed to continue for a prolonged period, it can act as a starting point into a life in which the brain uncontrollably releases potentially damaging levels of inflammation-promoting stress hormones and chemicals, even in non-stressful daily routines. It has been described as a continuous, discomforting anticipation of ‘the other shoe dropping’ and simultaneously being scared of how badly you will deal with the upsetting event, which usually never transpires.

    The lasting emotional/psychological pain from such trauma is very formidable yet invisibly confined to inside one’s head. It is solitarily suffered, unlike an openly visible physical disability or condition, which tends to elicit sympathy/empathy from others. It can make every day a mental ordeal, unless the turmoil is treated with some form of medicating, either prescribed or illicit. …

    Should not a psychologically and emotionally sound, as well as a physically healthy, future be every child’s foremost right, especially considering the very troubled world into which they never asked to enter? Of course it should.

  6. Defendant is afraid that news coverage will cause other potential plaintiffs to come forward, which both manifests future liability and increases present plaintiff’s chance of winning the instant case. If plaintiff is correct that defendant church DID have a policy of covering up cases of abuse, they’ve been sitting on a powder keg for years.
    Conversely, if defendant church is mostly bystander to defendant abuser’s liability, then they are worried about false claimants surfacing with false claims of abuse.
    This sort of thing is why we HAVE courts.

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