Appellate Division Strikes Down Gag Order as Unconstitutional

On March 22, 2023, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, handed down a Decision & Order that struck down the blanket deletion provision of the gag order and — critically — found that the order was never actually entered on default, directly contradicting the lower court's characterization of its own proceedings.

Matter of Walsh v Russell, 2023 NY Slip Op 01522 (Docket Nos. V-7641-18, O-12635-19), came before Justices Betsy Barros (J.P.), Robert J. Miller, Lara J. Genovesi, and Lillian Wan. The father appealed through Advocate, LLP (Jason A. Advocate of counsel). The mother was represented by Christopher S. Weddle, and Donna M. Genovese served as attorney for the child.

In a finding that cut to the heart of the lower court's proceedings, the Appellate Division ruled that the order was not entered on the father's default — directly contradicting what both the mother and the Attorney for the Child had argued on appeal.

The court found that although the father failed to appear in person at the January 2022 hearing, his attorney appeared on his behalf, participated in the hearing by making objections and cross-examining the mother. Under established New York law, that made it a contested proceeding — not a default.

This distinction matters enormously because it affects appeal rights and the burden of proof required for vacating orders.

Turning to the substance of the gag order itself, the Appellate Division applied the constitutional framework for prior restraints on speech. The court stated plainly that a prior restraint on speech must be "tailored as precisely as possible to the exact needs of the case." The party seeking such a restraint bears a "heavy burden of demonstrating justification for its imposition," and must show the speech is "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."

The court found that the blanket provision directing the father to erase, deactivate, and delete "any existing blogs and likenesses" was not tailored as precisely as possible to the exact needs of the case. The problem was clear: the order required the father to delete any existing blogs and likenesses — regardless of whether they related to the child, the mother, the mother's family, or the custody proceedings at all.

The Appellate Division modified the order, deleting the blanket deletion provision and substituting a narrower one directing that only blogs which specifically reference the proceedings or disparage the child's relatives, and likenesses of the child posted in connection with such blogs, need be removed.

The court upheld the remaining restrictions — prohibiting the father from posting blogs displaying the child's likeness and disparaging the child's relatives — finding those provisions were narrowly tailored to the case's needs.

This ruling mattered on multiple levels:

• It established that the lower court had mischaracterized its own proceedings as a "default" when they were in fact contested
• It struck down an overly broad speech restriction as unconstitutional
• It affirmed that even in the heated context of custody litigation, the First Amendment imposes limits on how far a court can go in silencing a parent
• It had implications far beyond the gag order itself regarding how orders are characterized in the court record

The bitter irony: By the time this ruling came down in March 2023, the gag order had already achieved its purpose. The StevieLovesEvie.com blog had been taken offline. The blogs had been silenced for over a year. And the jury verdict finding the mother guilty of battery, domestic abuse, and intentional infliction of emotional distress — handed down in February 2022 — had gone largely unnoticed by the Westchester court system.

This ruling confirmed what the father had argued all along: the gag order was used as a weapon to silence legitimate speech about official proceedings, not to protect a child. The higher court saw through the false default label and the unconstitutional breadth of the restrictions — but the damage of years of silence had already been done.