Babies cry to make sure their moms aren’t getting any. Yep… little tiny cockblockers. (source) Couldn’t we just assure them that we’re using birth control?
By Marc J. Randazza
When a New York Supreme Court Judge told Dr. Michael Katz, the medical expert for the defense in a personal injury case, that he was lying about the medical examination he conducted, Dr. Katz knew the judge was wrong. So, of course, Dr. Katz responded as any aggrieved professional would – he filed a lawsuit. Because suing the judge who called him a liar would be an exercise in futility, Dr. Katz did what he believed to be the next best thing: He sued a blogger who covered the case — a blogger who reported on the judge’s comments, as enshrined in the public record.
Dr. Katz’s complaint is the latest in a long line of sad examples why New York – and every other state – needs a meaningful Anti-SLAPP statute. The 65-page, 338-paragraph long complaint, seeking $40,000,000 in damages, is like something out of the twilight zone. Dr. Katz’s claims are vague and overbroad, including defamation (with particular emphasis on “defamation by implication” – see paragraphs 247-248), injurious falsehood, tortious interference with contract, tortious interference with business advantage, and prima facie tort – a claim that litigants throw against the wall in New York in hopes that it will stick when all their other allegations fail.
Dr. Katz’s complaint makes a headcharge at the fair report privilege, one of the fundamental protections that the First Amendment provides to citizens and the media – including bloggers. New York specifically memorializes this protection in Civil Rights Law § 74, precluding any cause of action for defamation for a “fair and true” report of “any judicial proceeding” or “other official proceeding.”
The blog posts authored by Eric Turkewitz and Samson Freundlich, his co-defendant, are reports of shocking judicial proceedings; in fact, they link to the transcripts of the proceedings themselves. But, linking to the source of your facts is enough to get you out of defamation trouble. See Adelson v. Harris.
So, okay, Civil Rights Law § 74 only applies to reporting on the proceedings – what about statements during the proceedings? Once again, Dr. Katz needs to check his privilege. New York’s litigation privilege provides an “absolute privilege” to parties, attorneys, and witnesses for their statements in the course of a judicial proceeding, “notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding.” Bisogno v. Borsa, 101 A.D.3d 780, 781, (2d Dept. 2012), citing Kilkenny v. Law Off. of Cushner & Garvey, LLP, 76 A.D.3d 512, 513 (2d Dept. 2010). Even if in the wildest of alternate realities the defendants intentionally defamed Dr. Katz, their statements during the proceeding would still be protected so long as they “may possibly be pertinent” to the underlying litigation. Lacher v. Engel, 33 A.D.3d 10, 13 (1st Dept. 2006).
Setting aside these privileges and getting down to the truth of the matter, which is an absolute defense to defamation, this litigation is about Dr. Katz’s self-inflicted injuries. After all, it was Dr. Katz’ (testimony at 6:8-10)that the Court opined upon. This testimony, in particular, in which he can’t remember how long a medical examination took.
But there’s a video…
Based on the discrepancy between Dr. Katz’s claims and his actions, Judge Hart was not pleased. As Judge Hart said, “I cannot blame Dr. Katz for the ills of the world, but I can blame him on this case.” (source at 6:18-20) But, now there is another case where Dr. Katz is to blame.
If Dr. Katz dared to file suit in Nevada, California, Oregon, or a growing number of other states with meaningful anti-SLAPP statutes, his litigation campaign would likely end post haste. It would be thrown out of court, and the judge would bruise his ego in the shape of the defendants’ attorneys fees and costs. But this is not California, or even Nevada – it is New York. Without meaningful relief, we are left only with the disinfectant of cleansing light shone upon those who file such censorious lawsuits.
Of all the things mentioned about this complaint, by far the most shocking is that it was not filed pro se (i.e., filed without an attorney). In fact, it was filed by John Sullivan, an experienced partner with Ruskin Moscou Faltischek P.C., an astonishingly large firm to take on such a questionable case. The firm should have known better, and had higher regard for the First Amendment. On the other hand, pecunia non olet? For an angry Doctor to file this lawsuit on his own would have been foolish, but comprehensible on some level. For an attorney to sign off on this frontal attack on free comment upon the public record – and ultimately, the public record itself – goes beyond that. Dare I use the adjective — rakofsky-esque?
One thing is certain – this case is doomed to fail. Another thing is certain – this case will not be to Dr. Katz’ advantage. Anyone who was considering him as an expert witness will now be treated to a lawsuit-amplified bullhorn reading of what the judge thought of him and his testimony.
Poorly played, Dr. Katz.
It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements. But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).
Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:
770.01 Notice condition precedent to action or prosecution for libel or slander.
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory
Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.
The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).
Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”
We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.
The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.
[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.
There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.
The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)
In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.
But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.
This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.
As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.
Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.
I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”
We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.
“We just don’t have the resources to go after every one of these guys.”
Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?
But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?
When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”
Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.
You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)
Once more, with feeling…. I will NOT listen to clergy members (at least if they tell me to let a hyena eat my balls)
Great “protest” at Fred Phelps’ funeral. (here)
The woman sued as “Jane Doe,” and the federal court for the Southern District of Ohio awarded her a judgment of $385,000 against Kevin Bollaert and Eric Chanson on March 18, 2014. The Court awarded the plaintiff $150,000 each on two child pornography claims, and $10,000 on her right of publicity claim. Additionally, the Court awarded the plaintiff $75,000 in punitive damages based on Bollaert and Chanson’s conduct. In total, the Court awarded $385,000 against Kevin Bollaert and Eric Chanson. Additionally, the Court prohibited Kevin Bollaert and Eric Chanson from ever again publishing her images.
In May of 2013, the plaintiff sued Kevin Bollaert and Eric, Roy, and Amy Chanson for publishing sexually explicit images of her on the website You Got Posted. In related legal action, on December 10, 2013, the California Attorney General’s Office indicted and arrested Bollaert on counts of conspiracy, identity theft, and extortion in connection with You Got Posted. (Arrest Warrant Here)
The judgment comes on a default. But, it was not an ordinary default. The Chanson defendants retained the services of a law firm in India to defend them — yes, a law firm that doesn’t even have a single license in the United States, much less the court where this matter was pending. They tried to pretend that they were actually pro se, while using these unlicensed “attorneys” as their counsel. When we figured that out, we moved to strike all of their pleadings. (Motion here). The court granted the motion. (order) Eric Chanson didn’t bother trying again and after a prove-up hearing he and his compatriot got their just desserts.
The message this $385,000 judgment sends to people who run revenge porn sites is unambiguous. These sites irreparably harm their victims, and often without any criminal action against them. In this case, a civil suit allowed our client to obtain justice against the people who exploited her. Marc J. Randazza and J. Malcolm DeVoy IV of the Randazza Legal Group and Prominent First Amendment Bad Ass, H. Louis Sirkin handled the case on behalf of Jane Doe.