Brummer v. Wey: When Does an Injunction Go Too Far?

By Devin Gustafson; Staff Member (Vol. 16)

Injunctions have long been a tool at the court’s disposal to stop harmful behavior. Judges use injunctions to prevent injustice and the possibility of irreparable harm, while balancing the likelihood of harming the public interest. A conceivable violation of the First Amendment, and an infringement on the rights of citizens, is certainly of public interest. A recent case granting an injunction in New York provides a potentially frightening example of when the scale tips the wrong way toward a constitutional violation. In December 2014, Christopher Brummer, a professor at Georgetown University Law Center, and a member of the National Adjudicatory Council for Financial Industry Regulatory Authority (FINRA), participated in a decision to permanently ban two stockbrokers from any FINRA-related firm.

About a month later, Benjamin Wey, who was upset by the FINRA ban but otherwise uninvolved in the decision, began posting about Brummer on the website, The Blot. The Blot is a website that combines journalism with unedited and opinionated content from readers. Wey is a publisher and frequent contributor on The Blot and has been convicted of sexual harassment, conduct which involved some defamatory posts on the website.  Wey posted articles calling Brummer a “racist,” an “Uncle Tom,” accusing him of having an affair with a married woman, and implicating him in fraudulent behavior.  Brummer, believing these statements to be defamatory and damaging to his reputation, sued Wey on April 22, 2015. Brummer further argued that Wey was inciting violence by posting pictures of Brummer next to lynching victims, and that Brummer felt threatened by Wey’s posts.

Despite Wey’s argument that his website is only opinion, and not statements of fact, the New York Supreme Court ordered an injunction on June 6, 2015, enjoining The Blot from “posting any articles about [Brummer] for the duration of this action.”   This order required the removal of all articles posted about Brummer and also prevented Wey from posting anything further about Brummer. True, false, fact, or opinion—Wey was prohibited from writing about Brummer in any capacity. While recognizing the need to prevent people from feeling threatened, the breadth of this injunction violates Wey’s rights under the First Amendment. By preventing Wey from publishing any facts or opinions about Brummer, the court is breaking away from established precedent.

The History of Overbroad Injunctions

The Supreme Court has dealt many times with unconstitutional injunctions similar to that in the Brummer case. In Near v. Minnesota, The Saturday Press published multiple articles with “scandalous” and defamatory claims about the gambling and bootlegging activities of gangsters, the Jewish race, and the inadequate response by law enforcement. The lower court judge recognized a pattern of publishing similar to Wey’s pattern, and issued an injunction banning all “malicious, scandalous and defamatory” articles about anyone. The Court held that the Minnesota statute allowing this injunction was unconstitutional.

Courts have upheld injunctions against derogatory comments, but in a more limited manner than in the injunction against Wey. In Balboa Island Village Inn, Inc. v. Lemen, the Defendant, unhappy with the noise and disturbance caused by the Inn across from her home, made derogatory comments about the clientele, food, and alleged activities (such as drug trafficking and prostitution) taking place inside the Inn. An injunction against the Defendant, prohibiting her from repeating the defamatory comments, was deemed too broad; but an injunction, prohibiting the defendant from repeating statements to third parties that were found at trial to be defamatory, was “properly limited” and therefore did not violate the Defendant’s First Amendment rights.

Even more recently, courts have required limits on injunctions against future “similar” defamatory statements. In McCarthy v. Fuller, a lower court judge issued a permanent injunction against Defendants who had written defamatory statements about Plaintiffs’ devotion to their religious organization, and enjoined them from making “similar” statements in the future. This judge had not determined who made the statements and which of them specifically were defamatory. The 7^th Circuit held that the prohibition of statements “not yet determined to be defamatory” was overbroad, a violation of the First Amendment, and considered this type of permanent injunction an issue of public interest.

What This Means for Wey

Wey appealed the injunction, and a New York appellate court did in fact narrow the injunction, but also affirmed parts of it. Wey was ordered to “remove all photographs or other images and statements from websites under defendants’ control which depict or encourage lynching; encourage the incitement of violence; or that feature statements regarding plaintiff that, in conjunction with the threatening language and imagery with which these statements are associated, continue to incite violence against plaintiff.” Given the sensitive nature of imagery related to lynching and the desire to make plaintiffs feel safe during litigation, I understand the rationale behind the injunction.

With this said, I think the risk to the public interest is greater than that of Mr. Brummer’s physical or reputational harm. This injunction would leave a lot of room for discretion about what constitutes violence-inciting language and eventually encroach further on First Amendment rights. Considering that the language or imagery has yet to be fully deemed defamatory, and that the injunction as it stands prohibits all language that encourages the incitement of violence, it will be interesting to see if the higher courts of New York will see this as a clear violation of the First Amendment (as others believe it is) or if this is a new example of a true threat.