Quinn v. Johnson , 381 N.Y.S.2d 875 ( 1976 )

Stevens, P. J.

This is an appeal from an order entered March 11, 1976, in the Supreme Court, New York County (Stecher, J.), which denied plaintiffs-appellants’ (appellants) motion for a preliminary injunction enjoining defendants-respondents (respondents) from broadcasting or disseminating information concerning appellants or St. Michael’s Home, Inc. The main thrust of the appeal seeks reversal of the order insofar as it permits respondents to televise a certain videotape taken at St. Michael’s on March 9, 1976.

On March 9, 1976, respondent John Johnson (Johnson) and a WABC-TV camera crew went to St. Michael’s in the afternoon and, according to respondents, viewed the premises and filmed two guards at the premises. Later Johnson and the crew returned to St. Michael’s accompanied by one Thomas F. Quinn, a child care counselor then employed by St. Michael’s, and Catherine Bertucci, a counselor, whose employment had terminated the day before. The visits were prompted by earlier interviews and information which respondents assert indicated a deteriorating situation at St. Michael’s, a State licensed institution for the care and treatment of dependent and neglected children.

In an affidavit by Quinn, he states that on the second visit to St. Michael’s, he and Bertucci led Johnson and the crew to the girls’ dormitory where Quinn opened the door and directed them to the second floor. While in the dormitory, some of the children were filmed and questions which could fairly be described as leading or suggestive were directed to the children with respect to drugs, assaults,etc., to which the children responded. The film, as edited, which counsel assured the court is that which is proposed to be shown, was viewed by this court.

The question before this court is whether under the circumstances here present, a preliminary injunction or temporary restraining order should issue pursuant to CPLR 6301.

There is no doubt that this court has the power to issue such an injunction unless provisions of the Constitutions (US Const, 1st and 14th Arndts; NY Const, art I, § 8) or decisional law prohibit such action. (See Social Services Law, §§ 136, 372, 391.) The enumerated references to the Constitutions deal with freedom of speech and of the press as applicable to the Federal and to State Governments. Essentially, there are declared rights and prescribed limitations.

Blackstone notes in his Commentaries, the following:

"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom óf sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.

"Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating or making public, of bad sentiments, destructive of the ends of society, is the crime which society corrects.” (4 Blackstone Commentaries, pp 151-152 [1791].)

The First Amendment forbids Congress to make any law abridging the freedom of speech or of the press, the main purpose being to prevent previous restraint upon publications. While the Fourteenth Amendment has been construed to prohibit State action with respect to certain guaranteed freedoms, the State of New York has emphatically declared the right of citizens to "freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” (NY Const, art I, § 8; emphasis added.) "Freedom of speech in its essence involves no previous restraint upon utterance or publication. It does not confer immunity, for abuse of the right will subject the offender to legal punishment.” (Lewis v American Federation of Tel. & Radio Artists, 34 NY2d 265, 272.) While the protection of freedom of the press is not absolute, the burden of demonstrating a condition which warrants a prior restraint is indeed a heavy one. Television broadcasting falls under the umbrella of protection afforded the press for it too in matters such as the subject under review, is engaged in the dissemination of information of public concern.

We recognize that there are here competing interests, competing rights and values. The children at this home are minors and wards of the State. The intrusion was upon private property without authorization from those in charge of St. Michael’s. Additionally, since the children interviewed were minors it is questionable that they could or did validly consent to the intrusion upon their privacy. If abuse be demonstrated, the respondents doubtless will be called to account.

After viewing the videotape we are not persuaded that its sole or even its chief object is to provide information which could lead to a correction of the conditions it claims exist. However, nothing appears on the videotape which, in our opinion, warrants a prior restraint upon its exhibition. The appellants have not met the heavy burden of showing a justification for the imposition of a prior restraint (cf. Organization for a Better Austin v Keefe, 402 US 415, 419; Miami Herald Pub. Co. v Tornillo, 418 US 241; Southeastern Promotions, Ltd. v Conrad, 420 US 546).

Commonwealth v Wiseman (356 Mass 251) cited in the dissenting opinion, may be distinguished. In that case the Commonwealth of Massachusetts was a party to the litigation, and the suit was to enjoin all showings of film taken at a correctional institution to which could be committed defective delinquents and insane persons charged with crime. The Superior Court enjoined showing of the film and required the film makers to deliver film to the Attorney General for destruction. The plaintiffs appealed because the final decree did not impose a constructive trust upon receipts for past showings of the film. The Supreme Judicial Court of Massachusetts in modifying the decree noted that defendants in negotiating for permission to film the inmates had "represented in writing that only pictures of inmates 'legally competent to sign releases’ would be used and that the 'question of competency would * * * be determined by the Superintendent and his staff”’ (p 257). This condition was found to have been breached and there was found also as a result to have been an invasion of the privacy of inmates who were unable to give consent. Defendants were found to have violated the permission given and to have failed to comply with valid conditions. The court did not reach or consider the basic constitutional question of prior restraint.

The order appealed from should be affirmed, without costs. However, a stay of the order appealed from shall continue for five days after service upon appellants of notice of the entry of the order of this court determining the appeal (CPLR 5519, subd [e]).