ASH v. New Bedford Management Corp., et al., Defendants. (2007)

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered on or about October 25, 2006, which, to the extent appealed from, granted plaintiffs' motion to vacate certain prior orders of the court prohibiting plaintiff Allan A. Ash from contacting any of the litigants involved in this matter during its duration and, instead, prohibited him from “ directly” contacting such individuals, and to submit any communications, questions, assertions of opinion, discovery demands, etc., to his counsel, who in turn was to submit such information to counsel for defendants, who was then to present that information to defendants, unanimously reversed, on the law, without costs, and that part of the order vacated.   The motion court is directed to set, and enforce, an expedited discovery schedule.

 A “prior restraint” on speech is “a law, regulation or judicial order that suppresses speech—or provides for its suppression at the discretion of government officials—on the basis of the speech's content and in advance of its actual expression” (United States v. Quattrone, 402 F.3d 304, 309 [2005];  see also Hobbs v. County of Westchester, 397 F.3d 133, 148 [2005], cert. denied 546 U.S. 815, 126 S.Ct. 340, 163 L.Ed.2d 51 [2005] ), and it has long been established that such restraints “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 also Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 641, 71 L.Ed. 1095 [1927] [Brandeis, J., concurring] [“[to] justify suppression of free speech, there must be reasonable ground to fear that serious evil will result if free speech is practiced”] ).   Accordingly, any imposition of prior restraint, whatever the form, bears a “heavy presumption against its constitutional validity” (Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 [1963];  United States v. Quattrone, 402 F.3d at 310), and a party seeking to obtain such a restraint bears a correspondingly heavy burden of demonstrating justification for its imposition (Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 [1971];  Near v. Minnesota, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 [1931] ).

 It is also incumbent upon a trial court to insure that each of the parties receives a fair trial and, to that end, possesses both the power and responsibility to safeguard their rights (Matter of Natl. Broadcasting Co. v. Cooperman, 116 A.D.2d 287, 289–290, 501 N.Y.S.2d 405 [1986], citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 [1966] ).   The trial court, in so doing, must bear in mind the fact that prior restraints upon the rights of free speech and publication “may only be overcome upon a showing of a ‘clear and present danger’ of a serious threat to the administration of justice” (Matter of Natl. Broadcasting Co. v. Cooperman, 116 A.D.2d at 290, 501 N.Y.S.2d 405, quoting Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192 [1941];  see also Lowinger v. Lowinger, 264 A.D.2d 763, 695 N.Y.S.2d 127 [1999];  Matter of New York Times Co. v. Rothwax, 143 A.D.2d 592, 533 N.Y.S.2d 73 [1988] ).

 In this matter, on the record before us, we are not convinced, at least at this juncture, that defendants have shouldered their heavy burden and demonstrated that plaintiffs' numerous, unnecessary and vexatious ramblings have compromised defendants' right to a fair trial.