ROSENBERG DIAMOND DEVELOPMENT CORP v. APPEL (2002)

Order, Supreme Court, Bronx County (George Friedman, J.), entered on or about July 7, 2000, which, insofar as appealed from as limited by the brief, continued a prior temporary restraining order prohibiting defendants from disseminating any false, slanderous and libelous material in conjunction with previously enjoined acts of vandalism or trespassing at any buildings owned or managed by plaintiffs and at plaintiffs' main offices, unanimously reversed, on the law, without costs, and that part of the restraining order vacated.

 Prior restraints on speech are strongly disfavored (see, Ramos v. Madison Square Garden Corp., 257 A.D.2d 492, 684 N.Y.S.2d 212).   Free speech is protected from censorship “unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance or unrest” (Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131, reh. denied, 337 U.S. 934, 69 S.Ct. 1490, 93 L.Ed. 1740;  accord, Edwards v. South Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697).   Prior restraints are not permissible, as here, merely to enjoin the publication of libel (see, Marlin Firearms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163;  Ramos v. Madison Square Garden, supra ).

 With respect to the aspects of the prohibition at bar which enjoin any type of verbal communication or the dissemination of materials in connection with other prohibited acts of vandalism and trespass, plaintiffs have failed to meet the heavy burden imposed upon the party seeking the infringement (see, Nebraska Press Assn. v. Stuart, 427 U.S. 539, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683).   Contrary to plaintiffs' contention, the objectionable speech as set forth in the complaint cannot in any way be considered “part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose” (Trojan Electric & Machine Co. v. Heusinger, 162 A.D.2d 859, 860, 557 N.Y.S.2d 756).   Thus, Trojan is inapplicable to the instant facts.   Accordingly, the prohibition against defendants disseminating any false, slanderous and libelous material in conjunction with any prohibited acts of vandalism or trespass is vacated.