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ALTHOUGH PLAINTIFF IN THIS DEFAMATION ACTION WAS ALLOWED TO SUE UNDER A PSEUDONYM, THE TEMPORARY RESTRAINING ORDER PROHIBITING DEFENDANTS FROM REVEALING PLAINTIFF’S IDENTITY TO THIRD PARTIES, INCLUDING WITNESSES AND INVESTIGATORS, WAS AN UNCONSTITUTIONAL PRIOR RESTRAINT OF SPEECH (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, determined the temporary restraining order prohibiting defendants from revealing plaintiff’s identity to third parties in this defamation action was an unconstitutional prior restraint on speech. Plaintiff had been allowed to sue under a pseudonym:

… Supreme Court erred in granting that branch of the plaintiffs’ motion which was for a temporary restraining order prohibiting the defendants from disclosing the plaintiffs’ identities to third parties, sharing any statements or documents regarding the instant action, or discussing the instant action. “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” … . “Any imposition of prior restraint, whatever the form, bears a ‘heavy presumption against its constitutional validity, and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition'” … . An injunction issued in the area of First Amendment rights under the United States Constitution “must be tailored as precisely as possible to the exact needs of the case” … . Here, the Supreme Court’s temporary restraining order was overbroad, such that it prevented the defendants from discussing the instant action with third-party witnesses or disclosing the plaintiffs’ names for investigative purposes … . Doe v Eliyas, 2025 NY Slip Op 04876, Second Dept 9-10-25

Practice Point: Consult this decision for insight into when a restraining order prohibiting revealing the identity of a plaintiff suing under a pseudonym is an unconstitutional prior restraint of speech.

 

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