The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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….