ARGEN et al v. KESSLER et al

Filing 128

OPINION. Signed by Judge Susan D. Wigenton on 6/5/2023. (dam)

Case 2:18-cv-00963-SDW-LDW Document 128 Filed 06/05/23 Page 1 of 15 PageID: 4649

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

PAUL ARGEN and SURENDER MALHAN,
Civil Action No: 18-963(SDW)(LDW)
Plaintiffs,
OPINION

v.
DAVID KATZ,

June 5, 2023

Defendant.

WIGENTON, District Judge.
Before this Court are the parties’ cross-motions for summary judgment pursuant to Federal
Rule of Civil Procedure (“Rule”) 56. Jurisdiction is proper pursuant to 28 U.S.C. § 1331. Venue
is proper pursuant to 28 U.S.C. § 1391. This opinion is issued without oral argument pursuant to
Rule 78. For the reasons stated herein, Defendant’s motion for summary judgment, (D.E. 115), is
GRANTED and Plaintiffs’ motion for summary judgment, (D.E. 110), is DENIED.
I.

BACKGROUND AND PROCEDURAL HISTORY
As the parties are familiar with the facts and procedural history of this dispute, this Court

addresses only those facts necessary for the resolution of the instant motions. Since 2011, Plaintiff
Surender Malhan (“Malhan”) has been engaged in contentious divorce/custody proceedings with
his wife, Alina Myronova (“Myronova”), which have spawned extensive litigation in both state

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and federal courts.1 As part of those proceedings, on June 18, 2015, New Jersey Superior Court
Judge Donald A. Kessler (“Judge Kessler”) entered a gag order (“Gag Order”) precluding the
parties from “speaking with, appearing for an interview, or otherwise discussing any custody
information to any reporters, journalists, newscasters or other news media employees or from
posting any blogs or information not previously posted or disseminated relating to the children or
any custody issue in this case pending further hearing.” (D.E. 115-3 Ex. B.)2 When entering the
Gag Order, Judge Kessler noted that he had considered the interest of the parties, including
Malhan’s First Amendment rights, as well as “the best interest of the [two minor] children.” (D.E.
110-17 at 7–8, 29.) In the following years, Judge Kessler, Defendant Judge David Katz (“Judge
Katz”), to whom the case was later transferred,3 and Judge Terry P. Bottinelli (“Judge Bottinelli)
continued to enforce the Gag Order, noting numerous times that it was necessary to protect the
best interests of Malhan’s minor children. (See, e.g., D.E. 115-3 Ex. D, Ex. E, Ex. F, Ex. H, Ex.
I, Ex. J.)
Trial proceedings eventually began before Judge Katz. (D.E. 112 at 16; D.E. 121-3 at 4.)
During the trial, Dr. Paul Dasher testified about whether publicity could negatively impact the
children, and said that although he had not seen “adverse impact” to the children from publicity as

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There have been more than twenty-seven actions related to the divorce and custody proceedings, with some still
pending in various courts. (See D.E. 115-3 at 143–44; see also e.g., Fam. Civ. Liberties Union v. New Jersey, 837 F.
App’x 864 (3d Cir. 2020); Malhan v. Katz, 830 F. App’x 369 (3d Cir. 2020); Malhan v. Sec’y U.S. Dep’t of State, 938
F.3d 453 (3d Cir. 2019); Allen v. Debello, 861 F.3d 433 (3d Cir. 2017); Edelglass v. New Jersey, No. 14-760, 2015
WL 225810 (D.N.J. Jan. 16, 2015); Malhan v. Katz, No. 20-8955.)
2

Citations to “D.E.” refer to the docket entries for the parties’ motion papers, including briefs, affidavits, declarations,
and statements of undisputed facts, and the documents attached to and referenced therein. For continuity, the page
numbers cited throughout this Opinion refer to the D.E. page numbers, not to the documents’ original page numbers.
3

Judge David Katz, who is the sole remaining named defendant in this matter, handled the case until it was transferred
to Bergen County Superior Court. (D.E. 115-2 ¶ 6; D.E. 119-1 ¶ 6.) Because the case has been transferred to different
judges for adjudication, this Court will refer to Defendant as “State court” throughout this opinion. 

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of 2019, if the children were exposed to publicity, “they would be embarrassed . . . if it came to
the attention of their peers,” and “it would be harmful” in that context.” (D.E. 110-37 at 6.)
However, he did not think that “reading anything on their own would be problematic per se,”
because he did not “get the impression that they were actively seeking that information on line
[sic].” (D.E. 110-37 at 6–7.) Part of the way through trial, the matter was assigned to another
Judge. (D.E. 112 at 16; D.E. 121-3 at 4.) On April 6, 2021, the New Jersey Supreme Court
directed that the “trial commence anew” and provided “procedural terms to govern future
proceedings.” (D.E. 115-3 Ex. B.) The trial-level proceedings thereafter recommenced, and Judge
Bottinelli issued a 336-page judgment of divorce opinion on February 25, 2022, within which the
court upheld the Gag Order after finding that the purpose of the gag order was “to protect the
privacy of the children,” which is “paramount to the minor limitations [that] could impact on
[Malhan’s] First Amendment rights.” (Id.) The Court “weighed the best interests of the parties’
children against [Malhan’s] First Amendment rights and his desire to publish information about
the children in relation to the custody and parenting time litigation against his First Amendment
rights,” and found that the “rather limited interference with [Malhan’s] rights pales in comparison
to the lifelong scars that could be suffered by the children should the [Gag Order] be lifted.” (Id.)
On January 23, 2018, Malhan and Paul Argen (“Argen”), (collectively, “Plaintiffs”) filed
suit in this Court challenging the constitutionality of the Gag Order pursuant to 42 U.S.C. § 1983
and the Declaratory Judgment Act, 28 U.S.C. § 2201, and seeking to enjoin enforcement of the
Gag Order. (D.E. 1 ¶ 1.) Argen’s connection to this case is purportedly as a member of the media,
an “investigative journalist,” and an “advocate.” (D.E. 110-3 at 1, 3.) On April 2, 2021, Plaintiffs
moved for partial summary judgment, and Defendants4 cross-moved. (D.E. 86-1; D.E. 89-1, 90 
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At this time, there were two Defendants: Judge Katz and the Attorney General for the State of New Jersey.

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1.) On July 8, 2021, this Court granted in part Defendants’ Motion and dismissed as moot in part
Plaintiffs’ motion.

(D.E. 93; D.E. 94.)

On July 22, 2021, Plaintiffs filed a Motion for

Reconsideration, which this Court denied on August 5, 2021. (D.E. 95; D.E. 97.)
On August 20, 2021, Plaintiffs appealed. (D.E. 99.) On August 16, 2022, the Third Circuit
affirmed “dismissal of Malhan’s claim as precluded under the doctrine of res judicata,” affirmed
this Court’s dismissal of the Attorney General from the litigation, vacated dismissal of Argen’s
claim and remanded the matter for this Court to consider and “evaluate Argen’s First Amendment
claim on its merits.” (D.E. 101; Argen and Malhan v. Att’y Gen. N.J. and Katz, No. 21-2571, 2022
WL 3369109, at *1, *3, *6 (3d Cir. Aug. 16, 2022).) The parties thereafter resubmitted timely
briefing on the instant Motions. (See D.E. 110; D.E. 112; D.E. 115; D.E. 119; D.E. 120; D.E. 121;
D.E. 122; D.E. 123.)
II.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986)
(emphases in original). A fact is only “material” for purposes of a summary judgment motion if a
dispute over that fact “might affect the outcome of the suit under the governing law.” Id. at 248.
A dispute about a material fact is “genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. The dispute is not genuine if it merely involves
“some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).

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The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the nonmovant who must “set forth specific facts
showing the existence of . . . an issue for trial.” Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir.
2001) (citing FED. R. CIV. P. 56(e)). “In considering a motion for summary judgment, a district
court may not make credibility determinations or engage in any weighing of the evidence; instead,
the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in
his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,
477 U.S. at 255).
The nonmoving party “must present more than just ‘bare assertions, conclusory allegations
or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d
584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party
is required to “point to concrete evidence in the record [that] supports each essential element of its
case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004) (citing
Celotex Corp., 477 U.S. at 322–23)). If the nonmoving party “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on which . . . [it has] the
burden of proof[,]” then the moving party is entitled to judgment as a matter of law. Celotex Corp.,
477 U.S. at 322–23. Furthermore, in deciding the merits of a party’s motion for summary
judgment, the court’s role is not “to weigh the evidence and determine the truth of the matter[,]
but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. The
nonmoving party cannot defeat summary judgment simply by asserting that certain evidence

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submitted by the moving party is not credible. S.E.C. v. Antar, 44 F. App’x 548, 554 (3d Cir.
2002) (citing Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 130 (3d Cir. 1998)).
III.

DISCUSSION
The First Amendment of the Constitution provides that “Congress shall make no law . . .

abridging the freedom of speech, or of the press.” U.S. CONST. AMEND. I. The United States
Supreme Court has acknowledged “a First Amendment right to ‘receive information and ideas,’
and that freedom of speech ‘necessarily protects the right to receive.’” Va. State Bd. of Pharm. v.
Va. Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (quoting Kleindienst v. Mandel,
408 U.S. 753, 762–63 (1972)). The First Amendment also protects “the media’s right to gather
news.” PG Publ. Co. v. Aichele, 705 F.3d 91, 99 n.9 (3d Cir. 2013). Generally, “only a compelling
[governmental] interest in the regulation of a subject within [governmental] constitutional power
to regulate can justify limiting First Amendment freedoms.” Lamont v. Postmaster Gen., 381 U.S.
301, 308 (1965) (quoting NAACP v. Button, 371 U.S. 415, 438)).
The sole legal issue this Court must address in the instant matter is whether the 2015 Gag
Order violates Argen’s First Amendment rights—not whether the 2015 Gag Order was valid as it
pertains to Malhan. The latter issue has been put to rest and cannot be revisited. The arguments
raised in Argen’s briefs to this Court, however, heavily focus on rehashing and revisiting the
validity of the 2015 Gag Order as it pertains to Malhan, which this Court declines to address. This
Court will “not make credibility determinations or engage in any weighing of the evidence,”
Marino, 358 F.3d at 247, but will instead weigh the competing interests of the parties as it considers
whether the 2015 Gag Order impermissibly infringes upon Argen’s First Amendment “right to
listen,” as the Third Circuit directed in its mandate to this Court, Argen, 2022 WL 3369109 at *2.

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To analyze whether Argen’s First Amendment right has been infringed, and appropriately
“weigh the relevant interests,” id. at *6, this Court must first discuss the level of scrutiny required
for the analysis. Notably, “[t]he Third Circuit is silent on whether a gag order imposed on a trial
participant can operate as a prior restraint on the press,” and, moreover, “[o]ther Circuits that have
addressed the issue are in disagreement.” Nichols v. Sivilli, No. 2:14–3821, 2014 WL 7332020, at
*5 (D.N.J. Dec. 19, 2014) (citing and comparing In re Dow Jones & Co., Inc. (Dow Jones & Co.),
842 F.2d 603 (2d Cir.1988) (gag order on trial participant does not operate as a prior restraint on
the press); Radio and Television News Assoc. of S. Cal., 781 F.2d 1443 (9th Cir.1986) (same); J.
Publ’g Co., v. E.L. Mechem, 801 F.2d 1233 (10th Cir.1986) (gag order on trial participant is a prior
restraint on the press presumed to be constitutionally invalid); and CBS Inc. v. Young, 522 F.2d
234 (6th Cir.1975) (same)).
Plaintiffs’ argument focuses primarily on the prior restraint of Malhan’s speech rather than
the restriction on Argen’s right to listen, and contends that this Court must apply strict scrutiny
when examining the restriction on either Malhan’s speech or Argen’s right to listen. (D.E. 112 at
22–32 (citing United States v. Alvarez, 567 U.S. 709, 718 (2012)); D.E. 119 at 13–17 (citing
Nichols, 2014 WL 7332020); Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S.
596 (1982)).) Plaintiffs’ reliance on Alvarez is not on point because that matter solely concerns
restrictions on speech, rather than restrictions on listening, as in the present matter. See Alvarez,
567 U.S. at 716–17. Of note, the Court required “exacting scrutiny” when examining the issue,
which pertained to the speaker, not the listener. Id. Plaintiffs’ reliance on Nichols is also misplaced
because a parallel Court declined to examine the scrutiny required to examine the impact of a gag
order on the First Amendment rights of a listener. See Nichols, 2014 WL 7332020 at 5–6.

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Plaintiffs’ reliance on Globe Newspaper comes close to assisting with deciphering the level of
scrutiny required, yet still does not quite hit the mark.
In Globe Newspaper, the Court examined Massachusetts’ mandatory rule barring press and
public access to criminal sex-offense trials during the testimony of minor victims and noted that
“the circumstances under which the press and public can be barred from a criminal trial are limited;
the State’s justification in denying access must be a weighty one.” Id. at 606–07. The Court
determined that when “the State attempts to deny the right of access in order to inhibit the
disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that interest.” Id. at 606–07. The Court
applied the requisite level of scrutiny and ultimately found that “a mandatory rule, requiring no
particularized determinations in individual cases, is unconstitutional.” Id. at 610–11, n.27. The
decision in Globe Newspaper, however, is distinguishable from the present matter in that here,
there has been a particularized determination on an individual case, as the Gag Order pertains to
one case alone, and it has been narrowly tailored to limit the speech of only persons intimate to
the matter, in an effort to serve the best interests of the children and avoid adverse impact,
embarrassment, and harm that could be caused by inadvertent or intentional airing of parental or
marital grievances in a public forum. (See D.E. 110-37 at 6.) Thus, Globe Newspaper is of limited
assistance in determining the level of scrutiny required here.
Regarding a determination of the level of scrutiny required, Defendant argues that strict
scrutiny would be the standard for examining Malhan’s First Amendment claim, but notes that
such a claim is not at issue here. (D.E. 121-1 at 24). Because the Gag Order does not apply to
Argen, he is not directly subject to its restrictions and cannot be liable for violation of it, Defendant
contends that this Court should apply a “reasonableness” standard when examining whether the

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Gag Order violates Argen’s First Amendment rights. (Id. (citing In re Application of Dow Jones
& Co., 842 F.2d 603, 610 (2d Cir. 1988) (requiring review of a gag order challenged by the press—
a gag order on another person, not the press—to be reviewed under a reasonableness standard);
Radio & Television News Assoc., 781 F.2d at 1446–47 (same)). For this reason, Defendant argues,
the Gag Order is considerably less intrusive of First Amendment rights than one directly aimed at
the press. (Id.) Defendant points out, however, that even if applying strict scrutiny, the Gag Order
is constitutional because “courts can—in appropriate circumstances—approve of prior restraints
on speech, so long as a sufficiently important interest justifies the restriction, which includes a
right of privacy (surely one of the Malhan children’s interests at issue here).” (D.E. 121-1 at 26
(citing Org. for a Better Austin v. Keefe, 402 U.S. 415, 419–20 (1971)).
Although the Third Circuit has not previously considered this discreet issue, the Court has
generally noted that a statute that contains a “[c]ontent-based prohibition of . . . expression is
‘presumptively invalid.’” Stilp v. Contino, 613 F.3d 405, 409 (3d. Cir. 2010) (quoting United
States v. Stevens, 130 S. Ct. 1577, 1584, 176 L. Ed. 2d 435 (2010)). When examining a statutory
restriction on speech, courts must determine whether the statute at issue “(1) serve[s] a compelling
governmental interest; (2) [is] narrowly tailored to achieve that interest; and (3) [is] the least
restrictive means of advancing that interest.” Id. (quoting ACLU v. Mukasey, 534 F.3d 181, 190
(3d Cir. 2008). In the Third Circuit’s recent decision concerning this case, the Court “note[d] that
in some circumstances, ‘privacy rights may outweigh the public’s interest in disclosure’ of the
information sought by a plaintiff claiming a First Amendment right of access,” Argen, 2022 WL
3369109 at *6 (quoting United States v. Smith, 776 F.2d 1104, 113 (3d Cir. 1985)), and further
“observe[d] that the New Jersey Supreme Court has articulated several factors for the ‘weighing
process’ between the ‘public’s right’ to information about a family court proceeding and the

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‘state’s compelling interest in conducting a private hearing,’ . . . ,” id. (quoting N.J. Div. of Youth
& Fam. Servs. v. J.B., 576 A.2d 261, 269–70 (N.J. 1990)).
In J.B., the Court examined “whether closure to the public of certain custody cases
involving the Division of Youth and Family Services . . . is mandated by Court Rules or statute”
and found that, on a case-by-case basis, “[t]he compelling state interest in protecting victims of
child abuse from the embarrassment of testifying in an open courtroom, with the attendant
possibility of media coverage, justifies a presumption that DYFS proceedings initiated under Title
30 or Title 9 will be closed to the public.” J.B., 576 A.2d at 263–70. When a court considers “the
[S]tate’s interest in privacy against the public’s interest in access,” the Court found that “in cases
involving the State’s compelling interest in safeguarding the physical and psychological wellbeing of minors, trial courts should weigh a variety of factors relating to the actual effect of open
proceedings on the particular child,” including the following: (1) “the nature of the allegation
underlying the DYFS complaint,” (2) “any allegation of physical or psychological abuse or of
serious neglect,” (3) “age and maturity of the child,” (4) “special pressures” attendant upon
“[c]hildren who must face their peers in school,” and (5) “[t]he possibility that a child might be
adversely affected by future revelation of embarrassing facts.” Id. at 269–70. Because the issue
in the present matter does not fit squarely into the restriction of speech analysis in Globe or the
content-based prohibition in Stilp, this Court looks to the standard that the Third Circuit set forth—
the New Jersey Supreme Court “weighing process”—and weighs the State court’s compelling
interest in protecting Malhan’s children against Argen’s right to listen to the information Malhan
seeks to share with him—and, by extension, with the general public.
Applying the J.B. weighing process here, this Court finds that the State has a compelling
interest in protecting Malhan’s children from unnecessary embarrassment, peer and societal

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pressures, and psychological harm and adverse impact that may stem from publication of details
relevant to the custody battle their parents have been engaged in, which—despite the matter being
resolved at the State level—appears to continue as remaining cases or appeals pertaining to the
divorce proceedings or Gag Order5 wind their way through various courts, including this one.
Regarding the first J.B. factor, this Court notes that the nature of the information Malhan
wishes to share with Argen includes sensitive details of family court proceedings and allegations
concerning his divorce and child custody travails—information and allegations that Dr. Dasher
noted could embarrass and psychologically harm the children if made publicly available. (See
D.E. 110-37 at 6.) This factor weighs in favor of protecting the children with limited comparative
infringement on Argen’s rights.
As for the second J.B. factor, Malhan subjected the children to psychological abuse
throughout the many years of divorce and child custody proceedings, and the Gag Order was
specifically designed to “protect the best interests of Malhan’s minor children” and prevent
additional embarrassment and harm to them. (See D.E. 115-3 Ex. B, Ex. I.) Malhan admits to
having “long been an active ‘blogger’ and for years,” who has published many sensitive postings
about his marriage and divorce, including discussing “how his putative wife had committed fraud
and stolen over $300,000 from marital assets and his business,” “describing the scam perpetrated
on him by his putative wife,” writing about “’kids for cash, custody for cash,’ crime, corruption,
abuse of power in family courts,” and putting forth various other vitriolic accusations and
observations about his perception of his ex-wife and the State court. (D.E. 110-2 ¶¶ 20–21, 63–
64, 241, 250–79.) In fact, “[s]ince 2012 Malhan has posted about 80 Facebook posts discussing
[the] situation with his litigation and the family courts.” (Id. ¶ 236.) The State court found that

5

See, e.g., Malhan v. State of N.J., et al., 22-cv-06353.

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during years of contentious litigation, Malhan psychologically abused the children in various ways,
and many of the abuses centered on the ongoing divorce and custody battle. (See D.E. 115-3 Ex.
I.) For example, Malhan forced the children to make videotapes that were disparaging of their
mother and posted the videos on social media; wrote scripts for his children, which were designed
to disparage their mother; coached the children on how to discuss issues with psychologists or
investigators; wrote letters in the children’s names in which he disparaged their mother; told his
children that their “mother was evil, a liar, a thief, and a manipulator”; “badgered the children”
into answering questions about their mother, her family members, and court proceedings; and
ignored his children’s pleas to stop the inquisitions, coaching, and badgering, among many other
abusive infractions. (Id. Ex. I at 285–86, 291–96.) In its exhaustive opinion, the State court
discussed myriad examples of psychological abuse Malhan inflicted on his children—primarily
stemming from the divorce and custody proceedings—and found that Malhan “subjected the
children to psychological maltreatment.” (Id. Ex. I at 289.) Of note, there is no evidence of
physical abuse of the children by Malhan.

(D.E. 110-2 ¶ 162.)

This Court weighs the

psychological abuse and finds that the Gag Order protects the children’s privacy and serves their
best interests, and, in turn, outweighs Argen’s right to listen to the information Malhan wishes to
share concerning the divorce and custody proceedings.6
The third, fourth, and fifth J.B. factors go hand-in-hand, in this case. One of Malhan’s
minor children is presently seventeen years of age, and the other is thirteen years of age. As Dr.
Dasher testified, although during the early years after the Gag Order was imposed, the children
had not yet experienced “adverse affects by any publicity in th[e] case,” the children getting older

6

This Court further notes that the Gag Order appears to have thus far somewhat successfully shielded the children
from the publication of copious amounts of sensitive, personal details about the divorce and custody proceedings
that would likely harm the children should they or their peers discover such information. (See D.E. 119 ¶ 91.)

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would increase the likelihood of harmful exposure to such publicity.” (D.E. 110-37 at 6.) That
the risk of embarrassment from exposure has certainly not diminished as the children age;
conversely, as the children get older the risk of peers finding untoward information is ever present,
and, as Dr. Dasher noted, “would clearly not be in the children’s best interests.” (Id.) These
children are of ages in which their peers are active online and on social media and could easily
learn damaging and embarrassing information about their parents’ acrimonious proceedings,
absent the Gag Order. The prolific, vitriolic nature of Malhan’s blog postings convincingly show
the need to protect the children from such public admissions and accusations concerning them,
their mother, and their family. (See, e.g., D.E. 115-3 Ex. G (describing the children as victims
who have been kidnapped by a Judge and others involved in the child custody case—persons he
describes as “child predators,” “kidnappers,” and “terrorists,” inter alia, and accusing their mother
of scamming him and being greedy.) The potential for the children, who have already been
traumatized by Malhan’s behavior, to experience extreme embarrassment, additional abuse, and/or
psychological harm does not lessen as they age. This Court finds, therefore, that the interest of
protecting the children’s privacy rights outweighs Argen’s right to listen.
When this Court weighs the potential of harm to the children and considers their best
interests, it finds that any infringement on Argen’s right to listen is negligible in comparison to the
harm that published revelations from Malhan would pose, and therefore the Gag Order does not
impermissibly violate any right Argen has to listen. In fact, Argen’s rights are minimally impacted
because he is not directly addressed in the Gag Order and is free to write what he would like to
write concerning this or any other matter to which he is not directly subject to the restrictions of
such an order.

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Contrary to Plaintiffs’ protests that the Gag Order is not narrowly tailored and not the least
restrictive means of accomplishing the goal of the Order, this Court finds that Defendant has
sufficiently demonstrated that the Gag Order is as narrowly tailored as possible in this particular
case, given it is directed toward only the applicable parties to the custody matter, and, moreover,
given the overwhelming need to curtail Malhan’s penchant for prolific publication and continuing
desire to expose intimate, personal, and potentially embarrassing information related to the
children and their mother and family.
In sum, whether analyzing Argen’s right to listen under the more lenient reasonableness
standard or under a strict scrutiny standard with a weighing process, as this Court has done, it is
evident to this Court that the State court’s interest in protecting Malhan’s children from the harmful
effects of publicity stemming from this contentious, long-fought custody battle abundantly eclipses
any interest Argen may have in listening to Malhan’s revelations. Moreover, Argen is not
prohibited from printing information concerning this matter; the restriction rests on Malhan’s
shoulders, multiple courts have affirmed the need for the restriction, and Malhan’s continuing
conduct has further confirmed for this Court that the 2015 Gag Order was not only necessary, but
also wise.
The State court has a compelling interest in protecting children from harm, and the court
has done just that here by issuing the Gag Order. This Court, therefore, finds that any restriction
on Argen’s ability to listen that stems from Malhan abiding by the Gag Order is reasonable when
weighed against the court’s compelling interest in protecting the best interests of Malhan’s children
and safeguarding their psychological wellbeing, as well as the court’s compelling interest in
protecting the children’s privacy. Consequently, Defendant’s Motion for Summary Judgment shall
be granted, and Plaintiffs’ Motion for Summary Judgment shall be denied.

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Case 2:18-cv-00963-SDW-LDW Document 128 Filed 06/05/23 Page 15 of 15 PageID: 4663

IV.

CONCLUSION
For the reasons set forth above Defendant’s motion for summary judgment is hereby

GRANTED. Plaintiffs’ motion for summary judgment is hereby DENIED. An appropriate order
follows.
___/s/ Susan D. Wigenton_____
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc:
Leda D. Wettre, U.S.M.J.
Parties

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