A court’s order preliminarily enjoining a website from publishing certain images and statements about a former governmental official is an unconstitutional prior restraint and must be rescinded, EFF argued in an amicus brief filed yesterday in the New York state appellate court. 

The case, Brummer v. Wey, is a dispute between Christopher Brummer, a Georgetown law professor and a former presidential nominee to the Commodities and Futures Trade Commission and the online publication The Blot. Several articles were published on The Blot that were highly critical of Brummer’s actions as an appeals adjudicator of decisions of the Financial Industry Regulation Authority, particularly those in which he affirmed the lifetime ban of two African American brokers. The articles, consistent with other content on The Blot, used highly charged and hyperbolic language, including characterizing Brummer’s actions as a “lynching” and posting images of Jim Crow-era lynchings.

The lawsuit is a bit of a procedural morass. Brummer sued Benjamin Wey, whom he apparently believes wrote the articles, for defamation and intentional infliction of emotional distress. Brummer then sought a preliminary injunction that would require the removal from The Blot of “photographs or other images and statements” “depicting or encouraging lynching” or “incitement of violence” against Brummer, and would further enjoin Wey from posting any images encouraging lynching “in association” with Brummer or saying “anything further concerning Professor Brummer on any traditional or online media.” In June 2017, the court entered the preliminary injunction that was even broader than what Brummer had requested, enjoining Wey from “posting any articles about the Plaintiff on The Blot for the duration of this action” and ordering the removal from the Blot of “all articles they have posted about or concerning Plaintiff.” Wey promptly appealed the entry of the preliminary injunction and moved the appellate division for a stay of the preliminary injunction pending the appeal. A single justice of the appellate division granted an interim stay. But the full panel of the court revised the stay and reinstate the portions of the preliminary injunction that required Wey to “remove all photographs or other images and statements from websites under defendants’ control which depict or encourage lynching; encourage the 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 the plaintiff.” Wey is now seeking permission to appeal this new preliminary injunction to the state’s highest court. We filed our brief in support of that request.

There are many things obviously wrong with the preliminary injunction: it was entered without the slightest evidentiary support amidst numerous material evidentiary disputes; it focuses on preventing incitement to violence even though the complaint primarily pleads a defamation case; it accepts that the lynching photos are threatening to Brummer even though the article accuses Brummer of lynching others; it is does not specify exactly what statements are prohibited, and on and on.

But our amicus brief, like those we have recently filed in similar cases in Texas and the Seventh Circuit, focused on the fact that orders requiring the takedown of online content are always prior restraints and will be unconstitutional except in the rare situation in which the highly demanding prior restraint test is met:

The injunction here is an unconstitutional prior restraint; it prohibits speech before there has been a full and final adjudication that the speech is not constitutionally protected, or in fact that the plaintiff is entitled to any remedy. It cannot withstand the rigorous First Amendment scrutiny due such orders.

Indeed, it is highly doubtful this injunction could be justified after a final adjudication. The long-held rule is that “equity will not enjoin a libel.” Injuries to “personal or professional reputation”—the harm Justice Mendez sought to prevent in entering the original preliminary injunction—are addressed by damages remedies.

The richness of the English language and the myriad ways of expressing any given thought make it impossible for a trial court to craft an injunction against defamatory or offensive speech that is both effective and does not also bar the publication of protected speech. Even a permanent injunction limited to the exact words found to be actionable in one context might prohibit speech that would not be actionable in another. That the injunction here is a preliminary one issued before a full adjudication on the merits makes the prior restraint even more offensive to the First Amendment. Finally, this Court should reject any suggestion that the advent of Internet publication somehow undermines bedrock First Amendment protections. As a result, it should not allow the injunction in this case to go into effect.

Prior restraints should be rare. But takedown orders such as this one seem to be happening with greater frequency. We expect the New York Court of Appeals to nullify this one and remind other courts that speech injunctions the First Amendment rarely allows for speech injunctions. Thanks to law student Delbert Tran for helping with the brief and Andrew Read of Woods Lonergan & Read PLLC for acting as our local counsel.