Gloria PARKER, Plaintiff-Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., et al., Defendants-Appellees

United States Court of Appeals for the Second Circuit1963-08-05

320 F.2d 937

Summary · law.co

Holding. The order was properly issued to the extent it restricted publication and dissemination of the unsworn memorandum itself, but was modified and affirmed to the extent that the restriction on all communications regarding matters contained in the memorandum was struck as unconstitutional under the First Amendment.

A stockholder filed suit to invalidate results of a corporate annual meeting and submitted an unsworn memorandum with allegations of fraud. The district court issued an order restricting the plaintiff from publishing or disseminating the document and from communicating with others about its contents, citing concerns about abuse of process. The court also threatened contempt sanctions and struck the memorandum from the files.

On appeal, the court addressed two distinct restrictions. The court upheld the portion of the injunction that prohibited publication and dissemination of the unsworn memorandum itself, finding that courts possess inherent equitable authority to prevent misuse of litigation materials. However, the court struck down the broader restriction on communication regarding the subject matter of the memorandum, finding that such a prohibition violated the First Amendment and conflicted with traditional equity principles.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an order restricting publication of an unsworn court filing is appealable as a preliminary injunction
Whether courts may enjoin dissemination of unsworn litigation materials to prevent abuse of process
Whether a blanket restriction on communication about subject matter discussed in a document violates the First Amendment

Procedural posture

The plaintiff appealed from a district court order imposing restrictions on publication and communication regarding an unsworn memorandum filed in support of a motion for judgment on the pleadings in a stockholder derivative suit.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

In this stockholder’s suit to set aside the results of the 1963 annual stockholders’ meeting of the Columbia Broadcasting System, plaintiff moved for judgment on the pleadings, and in support of her motion, filed an unsworn “memorandum” containing allegations of fraud and misconduct by appellees and their counsel. On defendants’ motion, the district court ordered plaintiff to show cause why this document should not be stricken from the files as a wilful abuse of process and why the complaint should not be dismissed, and the plaintiff held in contempt. In addition, the court ordered

“[T]hat plaintiff, her agents, advisers, experts, employees and all other persons or entities acting for or on behalf of plaintiff or with her knowledge and consent be, and the same hereby are enjoined and restrained until the entry of a final order on this motion from in any way publishing, disseminating, publicizing or otherwise promulgating to any person or entity all or any portion of the document * * * or any of the matters contained therein, and communicating with any person or entity with respect thereto, except that nothing herein shall prevent plaintiff from serving and filing any affidavits and briefs as set forth below and, in connection therewith, from retaining any attorney duly admitted to practice and, in connection therewith, making to him any disclosures in respect of such document or the matters therein contained.”

Plaintiff appeals from so much of the order as we have quoted.

Appellee urges that the order is a temporary restraining order, Fed.R. Civ.P. 65(b), and therefore not appealable. Grant v. United States, 282 F.2d 165 (2d Cir., 1960). We hold that the order is in the nature of a preliminary injunction, and therefore appealable under 28 U.S.C. § 1292(a) (1). See Pan American World Airways, Inc. v. Flight Engineers’ Int’l Ass’n, 306 F.2d 840, 843 (2d Cir., 1962).

Insofar as the order enjoins appellant from “in any way publishing, disseminating, publicizing or otherwise promulgating to any person or entity all or any portion of the document”, we hold that, in view of the nature of the document, the order was properly issued under the inherent “equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustice.” Gumbel v. Pitkin, 124 U.S. 131, 144, 8 S.Ct. 379, 383-384, 31 L.Ed. 374 (1888); see, 1 Moore, Federal Practice ¶ 0.60[6] (2d ed. 1961); cf. Pueblo de Taos v. Archuleta, 64 F.2d 807, 813 (10th Cir., 1933); Rudnicki v. McCormack, 210 F.Supp. 905, 908-912 (D.R.I.1962), appeal dismissed, Rudnicki v. Cox, 372 U.S. 226, 83 S.Ct. 679, 9 L.Ed.2d 714 (1963); Deem v. Aero Mayflower Transit Co., 24 F.R.D. 16 (S.D.Cal.1959); Pollack v. Aspbury, 14 F.R.D. 454 (S.D.N.Y.1953), cert. denied, 348 U.S. 903, 75 S.Ct. 228, 99 L.Ed. 709 (1954).

However, the order also enjoins appellant from communicating with any person with regard to any “matters contained” in the memorandum. This part of the order is repugnant to the First Amendment to the Constitution, Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir., 1963); cf. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), and to historic principles of equity. American Malting Co. v. Keitel, 209 F. 351 (2d Cir., 1913); Kuhn v. Warner Bros. Pictures, Inc., 29 F.Supp. 800 (S.D.N.Y.1939). The following must therefore be stricken from the order:

“or any of the matters contained therein, and communicating with any person or entity with respect thereto.”

Modified and affirmed.