Prior restraint and contempt

Brummer v Wey, 2018 NY Slip Op 07843 [1st Dept. 2018]

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]). Accordingly, as plaintiff appears to recognize, the preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff (Virginia v Black, 538 US at 359 [internal quotation marks omitted]). We find, however, that the speech at issue, as offensive as it is, cannot reasonably be construed as truly threatening or inciting violence 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)[FN2]. 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. 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]).

Regardless of the subject injunction’s constitutionality, defendants were not free to disobey an order within the jurisdiction of the issuing court, and not void on its face, until they had obtained judicial relief from it [FN3]. Further, contrary to defendants’ contention, the injunction, at least as modified by this Court’s partial stay, was not impermissibly vague or ambiguous. Moreover, we are satisfied that, assuming that defendants controlled the website, a substantial part of the posted material forming the basis for the contempt finding violated the terms of the injunction as modified by the partial stay. However, it cannot be determined on the present record whether defendants exercised control and authority over the website, an issue that we find to have been sufficiently preserved by defendants. Accordingly, we vacate the contempt adjudication and direct that, on remand, an evidentiary hearing be held to determine whether defendants had control of the website at the times of the alleged contemptuous conduct.

Lueker v Lueker, 2018 NY Slip Op 07421 [2d Dept. 2018]

The order appealed from, holding the father in contempt for failing to comply with the July 2013 order by not posting a bond, is not subject to reversal based on this Court’s modification of the July 2013 order by deleting the requirement that the plaintiff post a bond, as “[o]bedience to a lawful order of the court is required even if the order is thereafter held erroneous or improvidently made or granted by the court under misapprehension or mistake” (Department of Hous. Preserv. & Dev. of City of New York v Mill Riv. Realty, 169 AD2d 665, 670, affd 82 NY2d 794 [internal quotation marks omitted]; see Matter of Saffra v Rockwood Park Jewish Ctr., 249 AD2d 480). Moreover, this Court’s modification of the July 2013 order “does not render the instant appeal academic, since a party may be adjudicated in contempt of a court mandate which is later overturned on appeal” (Matter of Village of Chestnut Ridge v Town of Ramapo, 99 AD3d 928, 930).

Nevertheless, we reverse the order appealed from, since, in response to the defendant’s showing that she was prejudiced by the plaintiff’s knowing disobedience of a lawful order of the court which expressed an unequivocal mandate, the plaintiff proffered credible evidence of his inability to obtain the required bond. Inability to comply with an order is a defense to both civil and criminal contempt (see El-Dehdan v El-Dehdan, 26 NY3d 19, 35; Matter of Powers v Powers, 86 NY2d 63, 70; Gomes v Gomes, 106 AD3d 868, 869; Yeager v Yaeger, 38 AD3d 534; Ferraro v Ferraro, 272 AD2d 510, 512).

Matter of Palmitesta v Palmitesta, 2018 NY Slip Op 07731 [2d Dept. 2018]

Here, at the time the father’s motion was decided, the mother was complying with the parties’ stipulation. Thus, although the mother may have failed to comply with the stipulation in the past, at the time the father’s motion was decided, a civil contempt finding no longer could have served its intended purpose of compelling obedience to the parties’ stipulation. The only purpose of a civil contempt sanction at that point would have been to punish the mother, but punishment is the purpose of criminal contempt, not civil contempt. Thus, we agree with the Family Court’s determination, in effect, denying the father’s motion (see id. at 239; Matter of Peer, 50 AD3d 1511, 1512; Carr v Decesare, 280 AD2d 852, 853).

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