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.

The Ruling: Matter of Walsh v Russell

The case, 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. Dad appealed through Advocate, LLP (Jason A. Advocate of counsel). Mom was represented by Christopher S. Weddle, and Donna M. Genovese served as attorney for the child.

The Appellate Division addressed two key issues: whether the order was properly characterized as a default, and whether the speech restrictions satisfied constitutional requirements.

The False Default

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 Dad's default — directly contradicting what both Mom and the Attorney for the Child had argued on appeal.

The court found that although Dad 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 Mom. Under established New York law, that made it a contested proceeding — not a default.

This matters enormously. A "default" label strips a litigant of their ability to appeal directly and forces them into a much harder motion to vacate the default first. By marking the orders "on default" when Dad's attorney was present and actively participating, the lower court effectively created a procedural trap — one that the Appellate Division saw through.

The Unconstitutional Speech Restrictions

Turning to the substance of the gag order, 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 Dad 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 Dad to delete any existing blogs and likenesses — regardless of whether they related to the child, Mom, Mom'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.

What Was Upheld

The court upheld the remaining restrictions — prohibiting Dad 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.

The Significance

This ruling mattered on multiple levels. First, it established that the lower court had mischaracterized its own proceedings as a "default" when they were in fact contested — a finding that has implications far beyond the gag order itself. Second, it struck down an overly broad speech restriction as unconstitutional, affirming 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.

The irony is bitter: by the time this ruling came down in March 2023, the gag order had already achieved its purpose. StevieLovesEvie.com had been taken offline. The blogs had been silenced for over a year. And the jury verdict finding Mom 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 Dad 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.