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Temporary Restraining Order Prohibiting Broadcast About a Murder of Which Plaintiff Was Convicted Constituted Impermissible Prior Restraint of Speech

The Third Department determined the temporary restraining order granted by Supreme Court, which prohibited the broadcast of a movie about a murder of which plaintiff was convicted, constituted an impermissible prior restraint of free speech:

“A ‘prior restraint’ on speech is ‘a law, regulation or judicial order that suppresses speech . . . on the basis of the speech’s content and in advance of its actual expression'” … . It is well settled that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” … . As explained by the United States Supreme Court, “a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them . . . beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable” … . Although the prohibition against prior restraint is not absolute, any restraint on speech comes with “a ‘heavy presumption’ against its constitutional validity” … . Censorship in advance of publication will be constitutionally tolerated only upon “a showing on the record that such expression will immediately and irreparably create public injury” … .

Plaintiff has failed to show such immediate and irreparable public harm. “Romeo Killer: The Christopher Porco Story” purports to depict the events leading up to and surrounding plaintiff’s murder trial, a matter of significant public interest. Its broadcast would not create the type of imminent and irreversible injury to the public that would warrant the extraordinary remedy of prior restraint. Rather, any alleged harm or injury flowing from the content of the film would be limited to plaintiff alone. That portions of the movie may be fictionalized, dramatized or embellished does not constitute a sufficient basis for the imposition of a prior restraint enjoining its broadcast … . While judicial redress following publication is available if it is ultimately proven that defendant abused its rights of speech, it was constitutionally impermissible under these circumstances to forbid that speech prior to its actual expression… . Porco v Lifetime Entertainment Servs LLC, 2014 NY Slip Op 02641, 3rd Dept 4-17-14

 

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