NY Judge Says Prior Restraint Is America's Best Defense Against Internet 'Chaos'

from the as-American-as-baseball,-apple-pie,-and-microfiche dept

A Long Island judge is swiftly making a (terrible) name for himself with a (terrible) ruling in a defamation lawsuit. The ruling making Acting Supreme Court Justice John Galasso look like an unconstitutional idiot has nearly nothing to do with the defamation claims, but rather his granting of the plaintiff’s unconstitutional wish to have unflattering “memories” of himself pre-erased before the underlying lawsuit even gets going.

Here’s a bit of background: Jessica Pelletier, an employee at a medical marijuana company, Tikun Olam, sued her co-worker Eric Lerner, as well as her supervisor, for sexual harassment and retaliation.

Pelletier, 23, of Rocky Hill, Conn., charged she was demoted and then fired after complaining to her bosses about alleged raunchy treatment from her colleagues.

Her suit charged she was sexually harassed, taunted about her fight with breast cancer — and ridiculed for her Catholic faith.

She was let go after 20 months with the company. According to her lawsuit, Tikun Olam management charged that she had “an attitude” by reacting badly to the inappropriate comments of her bosses.

The New York Daily News ran an article about the lawsuit, naming everyone involved, including Eric Lerner. This is something newspapers do, especially when the lawsuit covers public interest subjects like workplace harassment. This is something newspapers have every right to do, as filed lawsuits are public records and any coverage of filed suits is very definitely covered by the First Amendment.

Eric Lerner filed a countersuit against Pelletier roughly six months after she filed her harassment suit. Lerner’s suit alleges Pelletier has defamed him with false claims, both in and out of court. (How some of those claims will manage to survive a motion to dismiss is unknown, considering statements made in courtroom filings are generally impervious to libel litigation. Statements made in court documents are almost aways given absolute immunity from civil actions.)

Before the defamation suit even got going, Lerner asked the court to grant him a restraining order against Pelletier to prevent her from distributing the Daily News article Eric Lerner is so concerned about. This is already an unconstitutional request, but it gets worse. He also requested his name and picture be removed from the New York Daily News’ article about the harassment lawsuit.

Unbelievably, both of these have been granted by Judge Galasso. The Daily News wasn’t a party to the defamation lawsuit, nor was it asked to make an appearance to defend its interests. It was informed the day before the injunction hearing, however, and its representative argued (to no avail) that the requested order was prior restraint — something that’s blatantly unconstitutional. Here’s the pertinent part of the order, which instructs the Daily News to alter an article based on obtained court documents — in other words, completely factual:

pending the hearing and determination of this motion [which is to be decided May 16] … the Daily News shall remove plaintiff Lerner’s name and photograph from the Article and its associated keywords and Facebook posts.

The Daily News argued several things, all of which were heard, but ignored, by Judge Galasso. First off, its legal rep points out the article in question is six months old, which makes Lerner’s demand for an immediate injunction illogical. From the hearing transcript [PDF] (which also contains the granted injuction):

Another important detail to note is that this article was published on October 7, 2016, nearly six months or more than six months ago. The Daily News is therefore perplexed as to why this extraordinary relief and Order to Show Cause has been brought because it’s not apparent how there could be the kind of immediate and irreparable harm that would warrant preliminary injunctive relief for defendant — for plaintiff. Plaintiff in this case has been aware of the article for six months.


We find it difficult to believe that Mr. Learner [sic] will be able to make a cognizable showing of irreparable harm given that he’s waited six months to bring these proceedings [rather than] when the article was first published if the harm was really so immediate and irreparable…

Judge Galasso’s answers to all the Daily News’ legitimate First Amendment assertions is “because the internet.”

The issue here too is that the internet has changed dissemination of information. It’s always there. If people want to check somebody, it comes up all the time. Prior, a newspaper article is printed, that was the end of it. You had to go to a library or try to research it to try and get that out.

And this unbelievable word salad where Galasso gets going about the internet, harassment, the First Amendment, and what he believes America is — and it apparently isn’t searchable online newspaper articles:

Even on other aspects, Facebook, something gets published on Facebook or Twitter and something like that, even if it’s false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don’t want chaos either.

This incomprehensible statement allows Galasso to grant the order to silence part of the “chaotic” internet while simultaneously allowing him to wash his hands of it. It’s up to the appeals court now — no longer his problem. But the order remains in place. Not that it matters to the Daily News, which released this editorial in response:

A judge on Long Island has ordered the Daily News to remove the name of a defendant in a civil lawsuit from our website.

Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school.

The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner.

Maybe Galasso would have been better staying in his lane, as Scott Greenfield points out:

Lack of familiarity with the First Amendment is one thing. But jurisdiction? The Daily News wasn’t subject to his jurisdiction. While some judges seem to have a general impression that their powers extend wherever they want them to extend, they have certain fairly obvious limits. Foremost among them is they can’t issue orders requiring non-parties to do anything. Not good things. Not bad things. Nothing. They are not within the ambit of their jurisdiction just because the judge says so.

Not only did Galasso order a non-party to do something unconstitutional, but he did so before any of the facts were in. Lerner’s defamation accusations have not been proven. In fact, nothing has been discussed thus far but how to censor a newspaper’s article about Lerner being named as a defendant in public court documents.

Galasso overstepped here, not just in terms of the Constitution, but in terms of jurisdiction. Unfortunately, the overreach that resulted in the stupid granting of an unconstitutional request may also limit the Daily News’ options when it comes to appealing the order.

The flip side of a judge issuing an order to a non-party to do something is that they’re a non-party when they want to challenge the judge’s order. The News would first need standing to intervene, which means they would have to obtain the court’s approval for sticking their nose into somebody else’s litigation.

But the judge ordered them to do something, so how could that be possible? Darn good question, and that’s the sort of questions that arise when a judge does something beyond his authority, outside the law and for which there are no procedures.

The only thing guaranteed is that when all’s said and done — no matter how Lerner’s defamation case turns out — this is all that will be remembered about it: a defendant with a countersuit and the unconstitutional dream of living an untroubled internet existence until vindicated (possibly twice!) in court.

For Judge Galasso, it’s much, much worse:

Eric Lerner doesn’t like his name associated with this sordid story of a 23-year-old woman claiming sexual harassment? Who would? Win the case and the problem is solved, but the one thing you can’t accomplish is forcing a newspaper to remove your name because, hey, it’s unpleasant.

The Daily News isn’t going to do it. If anything, this will Streisand Lerner’s name across the internet. And Justice John Galasso’s too, which is going to make it really hard when he has to get a new job after everyone knows how badly he sucked at his current one.

Galasso’s order — and his “this is all up to other people except for the part where I granted the injunction” flailing — is the judicial equivalent of leaving a flaming bag of feces on the Appeals Court’s front door step. All it can hope to do is extinguish it without having to scrape too much off of its shoes.

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Comments on “NY Judge Says Prior Restraint Is America's Best Defense Against Internet 'Chaos'”

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hij (profile) says:

Judge Galasso says:

Even on other aspects, Facebook, something gets published on Facebook or Twitter and something like that, even if it’s false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don’t want chaos either.

Wow, I certainly do not want to go to the places he shops. He must live in an awful world where people cannot even show their faces without fear of being hunted down and harassed. Either that or he lives in Oz and likes building a straw man.

Then again, I also do not want to live in a place where a judge gets to decide what people want rather than what the law specifies. The higher authority he cites does not come from judges but from the written laws.

Having said that, it is interesting that he likes to ignore other higher authorities such as Strunk and White.

Anonymous Coward says:

Re: legal bureacrats

Government “Judges” get way too much deference & automatic respect. Many, many judges are incompetent or act outside the law. Appeals Courts sometimes correct them, but judge-bureaucrats get away with a lot.

Judges are supposed to be public-servants — not mystical beings in black medieval robes.

Judges are simply government ‘legal bureaucrats’ operating in a bizarre, outrageously complex judicial-system-bureaucracy & ocean of unintelligible procedural rules/rituals & laws. No judge, lawyer, legislator, or citizen understands our American legal system — or has any hope of doing so.

Most all judges are politicians directly or indirectly.
We are all familiar with the general negative personal aspects of people who choose political careers.

Bergman (profile) says:

Re: Re:

One thing a lot of people seem to forget, is that anything you could sue a public official for in federal court under 42 USC 1983 and win is also a criminal act under 18 USC 241 & 242.

While judges have absolute immunity to civil lawsuits for their actions on the bench as judges, they are NOT immunized in any way to the consequences of violating criminal laws, particularly federal criminal laws.

His Dishonor Judge Galasso has issued an illegal order that violates constitutional rights under color of law. That right there is a Section 242 violation punishable by a year in federal prison or a $1,000 fine or both. If anyone actually attempts to enforce the illegal order, it violates Section 241, which is a conspiracy against rights under color of law, punishable by ten years in federal prison or a $10,000 fine or both — a felony by any measure, and one that applies equally to everyone from the judge on down the chain of those attempting to enforce the order!

DannyB (profile) says:

The best evidence

Prior Restraint is the best evidence that we are sliding into fascism.

“We have to talk to them about, maybe in certain areas, closing that internet up in some way. Somebody will say: ‘Oh, freedom of speech, freedom of speech.’ These are foolish people. We have a lot of foolish people.”
— trump, 12/8/2015

The 12 Early Warning Signs of Fascism


1. Powerful and continuing nationalism
2. Disdain for human rights
3. Identification of enemies as a unifying cause
4. Rampant sexism
5. Controlled mass media
6. Obsession with national security
7. Religion and government intertwined
8. Corporate power protected
9. Labor power suppressed
10. Disdain for intellectual and the arts
11. Obsession with crime and punishment
12. Rampant cronyism and corruption

Bergman (profile) says:

Re: Re: I believe ...

Freedom IS chaos.

There are some people who feel profoundly uncomfortable when they don’t have permission from authority to do any particular thing. They feel equally uncomfortable when they see other people doing things without permission from authority — and they often seek to do something about the ‘problem’.

The thing is, those aren’t the values this country was founded upon. At the time our country was founded, anything not explicitly forbidden was completely legal. And there were laws about what could not be forbidden.

But that makes people who need permission extremely uncomfortable, so they’ve been working diligently to ‘fix’ the problem for the past 200-odd years. Because freedom really IS chaos to them.

Anonymous Coward says:

Next time on "crazy Judge John" (final episode)

Judge: “I want you to go 6 months back in time and remove any mention of the perv… i mean the plaintiff.”

News publisher: “Chief Justice, we cannot do that since time machines have not been invented and many scientists believe it will never be possible, and surely not possible today.”

Judge: “Get some nerds together and make it happen… I want an adult conversation about this that will end with giving me what I want…. or… or I will hold my breath”

News publisher: “Surely you jest here!”

Judge: *Holds breath*

That One Guy (profile) says:

To be a fly on that wall...

I can only imagine the expressions on the judge’s face when he realizes that this whole case just blew up in his face due to his indifference about ordering a party not part of a lawsuit to do something.

Not only did it not work, but now both his name and the plaintiff’s have just been plastered everywhere for all to see, making the both of them look all sorts of bad for their respective reasons.

Anonymous Coward says:

Where this leads

Well, we have President Donald John Trump wanting “to loosen up libel laws”, with Justice Galasso advocating not only for prior restraint, but ex parte orders, and the DOJ back dooring an Official Secrets act for the US and non-citizens being forced into US jurisdiction, will he, nil he.

Add to the mix the clueless oaf and picture perfect republican porker (referring to his earmarks, not weight) Representative Jim Sensenbrenner, and one wonders what there is to “Make America Great again”.

Those that voted for DJT and Republicans bought a pail full of swill.

It’s not like you weren’t warned.

Christopher Waid (user link) says:

Want to talk fascism and prior restraint? Just got released for semi-similar situation

This is another attempt at prior restraint on freedom of the press I can firmly relate to. Just last night in fact I took part in a police accountability project as a member of the press. I routinely keep tabs on ordinary police interactions and some of this video gets published through various media outlets. Last night I was investigating a police check point and its violation of basic constitutional principles protecting the right of the people to travel freely and unmolested. To say the least the police interfered with my attempts to film, attempted to damage my camera, and proceeded to retaliate against me by putting me under arrest for “disorderly conduct”, merely for invoking my right to record under the Glik v. Cunniffee supreme court decision. I will be speaking tonight about this arrest on Free Talk Live (of which I co-host on Friday nights). I have never been arrested and have a bit over a year of experience interacting with police from weekly outings and multiple times a night/day of police interactions. I have a firm knowledge of various rights and laws and avoid getting too close even where it’s within my right to do so.

Under Glik v. Cunniffe a citizen has the right to film public officials in a public place; the public’s right of access to information is coextensive with that of the press.. The police generally know better here, but Manchester has one of the most corrupt police departments in New Hampshire. Despite citing the Glik decision and making the officer aware that I was press (though this was obvious), that my safety was mine alone to decide, and the unconstitutionality of his interference in recording thereof under the color of law I was arrested.

What people need to remember is that law enforcement can be held to account to one degree or another. Complaints for instance can impact raises and promotions. I will be filing a complaint and bringing a lawsuit against the police officer and the Manchester police department for the violation of my rights. We (being a member of of the press and organizations fighting tyranny) have won multiple nearly identical cases against the police over the years.

In one case a member of the press, Ian Freeman, was arrested at an auction open to the public at Palmer Town Hall in of all places Massachusetts. They illegally posted no video recording signs and Ian Freeman video’d anyway knowing full well his right to do so. This wasn’t even in New Hampshire, but a more tyrannical state next door: Massachusetts. The charges were quickly dropped and the case was settled for what I believe was a mere $5,000. That is Ian Freeman was paid by the government for his illegal detention and hindrance of his right to record.

Carla Gericke was arrested for all intensive purposes filming the police as well. This case raised an important question about an individual’s First Amendment right to film a traffic stop by a police officer. Carla Gericke attempted to film Sergeant Joseph Kelley as he was conducting a late-night traffic stop. Shortly thereafter, she was arrested and charged with several crimes, including a violation of New Hampshire’s wiretapping statute. Gericke was not brought to trial. She subsequently sued the Town of Weare, its police department, and the officers who arrested and charged her, alleging in pertinent part that the wiretapping charge constituted retaliatory prosecution in violation of her First Amendment rights. Her case was dropped and her lawsuit resulted in her winning around $53,000.

In another case James Cleveland was charged with resisting arrest and disorderly conduct (again the real “crime” was filming the police). He faced two years in prison. During the initial trial with a judge and no jury James lost. Fortunately he appealed the two class-A misdemeanor charges to a jury trial, even though the sentence from Judge Burke was suspended on condition of good behavior. Judge Burke doesn’t like activists and I’d say it’s safe to say he can be characterized as generally supporting our tyrannical system. On appeal the jury found James not guilty on the resisting arrest charge thanks to the video footage and the jury deadlocked 6-6 on the disorderly conduct charge.

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