Opinion
2014-04-17
Christopher PORCO, Respondent, v. LIFETIME ENTERTAINMENT SERVICES, LLC, Appellant.
Levine Sullivan Koch & Schulz, LLP, New York City (David A. Schulz of counsel) and Greenberg Traurig, LLP, Albany (Michael J. Grygiel of counsel), for appellant. Christopher Porco, Dannemora, respondent pro se.
Levine Sullivan Koch & Schulz, LLP, New York City (David A. Schulz of counsel) and Greenberg Traurig, LLP, Albany (Michael J. Grygiel of counsel), for appellant. Christopher Porco, Dannemora, respondent pro se.
Jenner & Block, LLP, New York City (George Freeman of counsel), for Home Box Office, Inc. and others, amici curiae.
Before: PETERS, P.J., GARRY, ROSE and EGAN JR., JJ.
PETERS, P.J.
Appeal from an order of the Supreme Court (Muller, J.), entered March 20, 2013 in Clinton County, which granted plaintiff's motion for a temporary restraining order.
Following a highly publicized trial, plaintiff was convicted of the murder of his father and attempted murder of his mother while they slept in their home. When plaintiff learned that defendant was planning to broadcast a movie depicting a dramatized version of the events surrounding the murder and his subsequent prosecution, he commenced this action for injunctive relief asserting that the use of his name in connection with the movie violated Civil Rights Law §§ 50 and 51. Plaintiff's subsequent motion for a temporary restraining order enjoining the impending broadcast of the movie was granted by Supreme Court. Defendant appeals.
This Court granted defendant's motion to vacate the temporary restraining order pending the outcome of this appeal (2013 N.Y. Slip Op. 71188[U], 2013 WL 1694379 [2013] ).
Supreme Court's order granting the temporary restraining order was not ex parte, as it decided a motion made on notice ( seeCPLR 2211, 5701[a][2][i] ). Accordingly, it is appealable as of right.
We reverse. The temporary restraining order issued here constitutes an unconstitutional prior restraint on 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’ ” ( Ash v. Board of Mgrs. of the 155 Condominium, 44 A.D.3d 324, 324, 843 N.Y.S.2d 218 [2007], quoting United States v. Quattrone, 402 F.3d 304, 309 [2005];see Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 125 L.Ed.2d 441 [1993];Metropolitan Opera Assn. v. Local 100, Hotel Empls. & Restaurant Empls. Intl. Union, 239 F.3d 172, 176 [2d Cir.2001] ). It is well settled that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights” ( Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 [1976];see CBS v. Davis, 510 U.S. 1315, 1317, 114 S.Ct. 912, 127 L.Ed.2d 358 [1994];New York Times Co. v. United States, 403 U.S. 713, 723–724, 91 S.Ct. 2140, 29 L.Ed.2d 822 [1971] [Douglas, J., concurring] ). 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” ( Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 [1975] [citation omitted] ). Although the prohibition against prior restraint is not absolute, any restraint on speech comes with “a ‘heavy presumption’ against its constitutional validity” ( Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 [1971], quoting Carroll v. President and Commrs. of Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 21 L.Ed.2d 325 [1968];see Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 [1963] ), and may be imposed only in the most “exceptional cases” ( Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357 [1931];accord CBS v. Davis, 510 U.S. at 1317, 114 S.Ct. 912;see Miami Herald Publ. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 259, 94 S.Ct. 2831, 41 L.Ed.2d 730 [1974] [White, J., concurring] [noting that First Amendment jurisprudence erects a “virtually insurmountable barrier” against the issuance of a prior restraint] ). 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” ( People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 553, 558, 510 N.Y.S.2d 844, 503 N.E.2d 492 [1986];see CBS v. Davis, 510 U.S. at 1317, 114 S.Ct. 912;Near v. Minnesota, 283 U.S. at 715–716, 51 S.Ct. 625;Matter of Rockwell v. Morris, 12 A.D.2d 272, 277–278, 211 N.Y.S.2d 25 [1961],affd. 10 N.Y.2d 721, 219 N.Y.S.2d 268, 176 N.E.2d 836 [1961] ).
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 ( see Organization for Better Austin v. Keefe, 402 U.S. at 418, 91 S.Ct. 1575;Near v. Minnesota, 283 U.S. at 714–715, 718–719, 51 S.Ct. 625;Schermerhorn v. Rosenberg, 73 A.D.2d 276, 288, 426 N.Y.S.2d 274 [1980] ). 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 ( see Matter of Providence Journal Co., 820 F.2d 1342, 1350–1351 [1st Cir.1986];Ruffin–Steinback v. de Passe, 17 F.Supp.2d 699, 701 [1998];Rosemont Enters. v. McGraw–Hill Book Co., 85 Misc.2d 583, 586, 380 N.Y.S.2d 839 [1975];see generally CBS v. Davis, 510 U.S. at 1317–1318, 114 S.Ct. 912;New York Times Co. v. United States, 403 U.S. at 723–724, 91 S.Ct. 2140;cf. Rose v. Levine, 37 A.D.3d 691, 693, 830 N.Y.S.2d 732 [2007];Weil v. Johnson, 2002 N.Y. Slip Op. 50513[U], *10–11, 2002 WL 31972157 [2002] ). Accordingly, the temporary restraining order must be vacated.
We decline defendant's invitation to sua sponte dismiss plaintiff's complaint as meritless.
In light of our determination, we need not reach defendant's remaining assertions.
ORDERED that the order is reversed, on the law, without costs, motion denied and temporary restraining order vacated.