By Laura R. Handman and Lisa B. Zycherman
A New York Supreme Court judge granted summary judgment to the Daily News, LP and former columnist Errol Louis (“Daily News”), dismissing a libel claim brought by Kings County Supreme Court Justice Larry D. Martin. Martin v. Daily News, L.P., No. 100053/08 (N.Y. Sup. Ct. N.Y. County, Dec. 3, 2012). In the sometimes difficult annals of judge-plaintiff libel suits, this is a welcome result.
In granting the defendants’ motion for summary judgment, New York State Supreme Court Justice Martin Schulman found that Justice Martin failed to clear the “high” bar set for public officials to prevail in a libel claim. “Based upon a review of all the submissions, the plaintiff’s arguments concerning Louis’s research methods and DNLP’s decision to publish” “fall short of establishing that defendants’ ‘entertained serious doubts as to the truth of [the] publication or acted with a high degree of awareness of … probable falsity.’” As a result of the Court’s unequivocal finding that Martin failed to present sufficient evidence of actual malice to preclude summary judgment, the Court ruled moot the parties’ cross-motions to exclude plaintiff’s expert on journalism standards and defendants’ expert on judicial ethics.
Plaintiff Larry D. Martin, a New York state trial court judge sitting in Brooklyn, filed his original libel action in January 2008 in State Court in Manhattan against the Daily News and its then op-ed columnist Errol Louis, based on four publications in January and February of 2007: two columns, a Daily Politics blog post and a subsequent post by Louis. Suit was also brought against attorney Ravi Batra for two posts on the Daily News website. Martin’s complaint alleged that the publications portrayed him as a “corrupt” jurist who improperly presided over a case in which he was accused of having a conflict of interest. The conflict of interest allegedly arose because Jerome Karp, the lawyer who had defended Martin three years before in proceedings before the New York Commission on Judicial Conduct (“CJC”), was said to be involved as “shadow counsel” behind the scenes in a series of related real estate disputes, one of which was before Martin. When the issue was raised in the proceeding before Justice Martin, he refused to recuse himself. The alleged conflict became the basis for a lawsuit brought by Batra’s client, Martin Riskin, against Karp in November 2006. The allegations in the Karp suit and supporting documents were the basis for the columns and blog posts in suit.
Claims Based on Three Out of Four Publications Dismissed
On defendants’ motion to dismiss, in its July 14, 2009 decision, No. 100053/08, 2009 WL 2221457 (N.Y. Sup. Ct. N.Y. County), the trial court dismissed all claims against Batra and claims against the News Defendants based on three of the four publications as not susceptible of a defamatory meaning as to Martin.
The Court denied dismissal of the claim pertaining to Louis’ February 2007 column (“Weed Out Bad Judges”), which was primarily a call for more resources for the CJC to investigate judicial wrongdoing. The key portions of the column still at issue were:
[n]ow the judge is in the hot seat again. According to a lawsuit filed in November, Martin is hearing a real estate case, Singer v. Riskin, in which the judges’ personal lawyer – Jerome Karp, who defended Martin before the commission in the letter-writing cases – is representing one of the parties in the case, Ted Singer (emphasis in original).
That’s an obvious conflict of interest. Martin should have disclosed the Karp connection and recused himself from the case – but he didn’t. So [Commission Administrator] Tembeckjian’s staff will need to spend time and money to sort through the charges.
* * *
[T]he commission needs beefed-up support to do more labor-intensive, old-fashioned investigation and enforcement. It’s the only way to keep a close eye on judges who consider themselves above the law.
The Court believed that three aspects of the column were susceptible of defamatory interpretation: a statement that Martin had “an obvious conflict of interest” when he denied recusal and decided motions in one of the related suits because of the alleged involvement of his CJC lawyer; a claimed false implication that the conflict was being investigated by the CJC; and another claimed false implication that Martin was “corrupt.” Plaintiff argued that the corruption implication was derived from (1) the column’s references to two notoriously “crooked” Brooklyn judges, (2) the language of the column that immediately followed and led into the discussion of Martin: “It takes time and money to root out these crooks because the corruption can be hidden or subtle, requiring intensive investigation. Take the case of Justice Larry Martin,” (3) the column’s reference to the prior public admonishment of Martin by the CJC, and (4) the column’s closing line that the CJC needed money “to keep a close eye on judges who consider themselves above the law.” Plaintiff also relied on the column’s headline and subhead: “Weeding Out Bad Judges: More Resources Will Help Nail Corrupt Judges” and the cartoon accompanying the column of a sinister-looking judge under a microscope. The Court ruled that those statements were capable of the defamatory meaning that he was corrupt and were not expressions of opinion nor protected by the fair report privilege accorded by N.Y. Civil Rights Law 74.
Restoration of Columns Held Not to be Republication
In March 2011, more than three years after the initial suit, plaintiff filed a second action alleging that, because the column still in suit had been restored to the Daily News’ website in March 2010, after having “fallen off” the site during a conversion from one content management system to another, and because of the added features it exhibited (such as share buttons), the column had been republished triggering a new statute of limitations. In its February 10, 2012 decision, Martin v. Daily News, L.P., No. 103129/11, 2012 WL 1313994 (N.Y. Sup. Ct. N.Y. County), the Court dismissed the new lawsuit finding that, under the single publication rule, the reposting did not constitute republication triggering the statute of limitations. The restoration of the columns without significant alteration was viewed as “akin to delayed circulation of the original,” not republication, and the hyperlinks to social media and networking sites was not reaching a “new audience,” even if arguably an expanded one. See Anne B. Carroll, “Online Article With ‘Share Button’ Not A New Publication,” MLRC Media Law Letter, Feb. 2012, at 7.
Summary Judgment Granted On Actual Malice
Three years of what the Court called “lengthy and somewhat contentious discovery” on claims based on the remaining column ensued, including three days each of deposition of the judge and the columnist, and a battle over production of non-public CJC documents. Ultimately, Batra was ordered to produce his complaint to the CJC about Justice Martin’s alleged conflict of interest, a complaint that was, in fact, pending at the time the February 2007 column was published. Discovery also revealed, unbeknownst to the parties at the time, that the CJC had issued a decision declining to investigate Batra’s allegations against Martin a week after the column’s publication.
On December 3, 2012, the Court issued its decision granting the defendants’ motion for summary judgment made after the close of discovery. The Court rejected Martin’s arguments that bias and actual malice were demonstrated by (1) the inclusion of allegedly erroneous and defamatory statements in the column; (2) Louis’ reliance on Batra as a source for his information; (3) Louis’ alleged failure to fact check his information prior to publication; (4) his failure to contact the judge for comment prior to publication; (5) Louis’ “ulterior motive” of furthering his own career by publicizing “scandalous” information about public officials; (6) defendants’ failure to retract the column or publish an editor’s note reporting on the decisions, post-publication, by the CJC not to investigate Martin and by Justice Shulman dismissing the lawsuit against Karp that had been the basis for the column; and (7) defendants’ reposting of the column in March 2010. The Court found that “[a] review of the parties’ submissions, including Louis’s deposition testimony, fails to reveal” that defendants published the column “either with knowledge that it contained false information or with reckless disregard for whether or not the information contained therein was false.”
In support of summary judgment, defendants argued that Martin could not establish actual malice by attacking Batra’s reliability because Louis based his column on uncontroverted documentary evidence, not on allegations in the suit drafted by Batra. The Court noted that Louis’ deposition testimony established that he was aware of questions regarding the reliability of Batra as a source, and that he addressed that issue in his prior column by acknowledging Batra’s notoriety and framing the source’s usefulness thus: “Who better to expose a rotten system than a man who once participated in it?” The Court further noted that Louis’ decision to summarize the court filings alleging a possible conflict of interest without independently verifying those allegations or detailing the legal complexities was sufficient to relate the substance of those public documents, documents used to support Louis’ call for the CJC to investigate the allegations.
Defendants argued, and the Court agreed in previous rulings, that post-publication events did not establish that defendants knew what they published was false or had serious doubts based on the information they had at the time of publication. Defendants maintained that their decision not to issue a retraction or report on post-publication decisions did not support an inference of actual malice because it did not prove a wrongful state of knowledge at the time of the initial publication. The only factual error – the caption of the case over which Martin was presiding – was corrected in a subsequent blog post and the Court had previously held that the error was of “no import.”
Defendants also argued that Martin could not establish “purposeful avoidance of the truth” based on Louis’ decision not to contact Martin for comment because Louis believed Martin – a sitting judge – could not comment and could not have contradicted the material facts and undisputed documentary evidence, namely that he presided over a case in which Karp, the attorney who had previously represented him before the CJC, had now been retained to negotiate a global settlement. (Louis had sought comment from Karp’s attorney prior to publication.) The Court concluded that plaintiff’s arguments concerning Louis’ “research methods” “fall short of establishing” that defendants entertained serious doubts as to the truth of the reporting or acted with a high degree of awareness of probable falsity. The Court went on to hold that, “even if, as plaintiff argues,” defendants “were unprofessional or negligent in their fact-checking and/or rush to publication, ‘such proof of mere negligence does not suffice to establish actual malice by clear and convincing evidence’” nor a “‘willful avoidance of knowledge.’” Citing Mill, Milton and New York Times v. Sullivan, the Court reiterated the “breathing space” necessary for even false statements that will produce “‘the clearer and livelier impression of truth, produced by its collision with error.’”
Motions to Exclude Experts Deemed Moot
The parties also filed cross-motions to exclude expert witness testimony, which the Court found to be moot in view of the decision on summary judgment. The plaintiff offered the testimony of Glenn Guzzo, a former editor and now journalism instructor at the University of North Florida, as an expert in the field of journalism. Defendants moved to exclude Guzzo’s testimony on the grounds that (1) his opinion on journalism standards was irrelevant where the question presented was whether defendants acted with actual malice, which goes to a subjective state of mind; (2) Guzzo’s opinion was unreliable because his report contained material factual errors and omissions; and (3) plaintiff’s contention that Guzzo would opine on defamatory meaning was unfounded because Guzzo was not qualified as a linguistic expert and expert testimony about what a reasonable reader would understand is impermissible. Although it did not rule on defendants’ motion to exclude Guzzo’s testimony, the Court’s order granting summary judgment to the defendants noted Louis’ deposition testimony that when faced with source reliability issues “he relied on what he referred to as his ‘journalistic judgment,’” and that he viewed “the point of his column ‘is to give my opinion on important issues of the day.’”
Defendants offered the testimony of Professor Bruce A. Green, the director of the Louis Stein Center for Law and Ethics and Fordham University and an expert on judicial and lawyer ethics, to opine on questions of judicial ethics in connection with defendants’ motion for summary judgment. Plaintiff moved to exclude Professor Green’s testimony principally on the ground that his opinion misapplied the law and/or usurped the function of the court, but this motion was deemed moot and the Court issued no ruling.
Prior to ruling on summary judgment, the Court, at defendants’ request pursuant to the terms of a confidentiality agreement, sealed limited portions of the moving papers.
Plaintiff has filed a notice of appeal of the decisions below.
Laura R. Handman, Erin N. Reid, and Lisa Zycherman, Davis Wright Tremaine LLP, represented The Daily News and Errol Louis. Anne B. Carroll, Vice President and Deputy General Counsel for the Daily News, did the principal drafting of the motions to dismiss and summary judgment. Since her retirement at the end of August 2012, Matthew Leish, Vice President and Assistant General Counsel, has represented the Daily News and Louis Errol. Louis left the Daily News in November 2010 and is now host of Inside City Hall on New York One. Harold Schwab of Lester Schwab Katz and Dwyer, LLP, represented Justice Martin. Stuart Blander of Heller, Horowitz & Feit, P.C. has also represented the Plaintiff.