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MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION NOT GRANTED (FIRST DEPT).

The First Department determined the criteria for prior restraint of speech were not met in this action to impose a preliminary injunction and temporary restraining order prohibiting the publishing of accusations against plaintiff and offensive images on defendants’ website:

Plaintiff, a law professor, sat on the appellate panel of the Financial Industry Regulatory Authority, Inc. (FINRA) that affirmed the lifetime ban imposed on two stockbrokers, nonparties Talman Harris and William Scholander. Defendants allegedly control a website known as TheBlot, a tabloid-style platform that has published a substantial quantity of material attacking FINRA’s ban of Harris and Scholander and the FINRA personnel, including plaintiff, who were involved in adjudicating that case. The attacks on plaintiff have included — in addition to name-calling, ridicule and various scurrilous accusations — juxtapositions of plaintiff’s likeness to graphic images of the lynching of African Americans, and statements that the banning of Harris, who is African American, constituted a “lynching.”

In this action, plaintiff, who is also African American, seeks, as here relevant, an injunction against the posting on TheBlot of material attacking or libeling him. In this regard, he argues that the lynching images posted alongside photographs of him on TheBlot should be understood as a threat of violence against himself. …

… [T]he preliminary injunction can be affirmed only if it enjoins a “true threat” against plaintiff … . 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) … . 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” … . Brummer v Wey, 2018 NY Slip Op 07843, First Dept 11-15-18

DEFAMATION (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CIVIL PROCEDURE (DEFAMATION, PRELIMINARY INJUNCTION, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/CONSTITUTIONAL LAW (FREE SPEECH, PRIOR RESTRAINT, MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/FREE SPEECH (PRIOR RESTRAINT, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))/PRIOR RESTRAINT (FREE SPEECH, (MATERIAL PUBLISHED ON DEFENDANTS’ WEBSITE DID NOT RISE TO THE LEVEL OF THREATENING SPEECH THAT WOULD ALLOW PRIOR RESTRAINT, PRELIMINARY INJUNCTION WAS NOT GRANTED (FIRST DEPT))

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