The Use of Litigation to Chill Speech – LostMessiah, Fensterman and the SandosaCare Example – PART I

936754_10200089158137358_142753902_nDear Reader:

Last week one anonymous blogger, allegedly associated with the LostMessiah site, was served with a defamation suit for two articles written in 2016. It appears that to obtain a blogger’s information, WordPress was handed a Court Order to uncover the identity of LostMessiah’s associated individuals, the basis of that Order remains open to numerous questions.

The relief being sought is the removal of the articles, which had already been facilitated, a blanket ban on the appearance of any story written on LostMessiah (or anywhere else by this blogger), as such story might relate to Plaintiff family and its related companies. This last relief is known in the legal world as a prior restraint. The suit also requests damages and punitive damages.  

The objective of the complaint can be nothing other than to chill speech, something we find unpalatable, at best, reprehensible at worst.

It is most certainly inconsistent with this country’s notion of Freedom of Speech. If every activist, speaker, author, writer, painter, blogger and celebrity who tries to speak out against the wrongs in our society gets slapped with a lawsuit, free speech gets trampled and wrongful actors get to act with impunity. In this particular case, the implications, are broad ranging since so many subjects of our articles have endless sums of money, as does the Plaintiff family. This is from our perspective, totally unacceptable.

To you our readers, you should be incensed. 

Without going into all of the specifics, the articles had been published on LostMessiah in 2016 and remained continuously on the site until the anonymous blogger was contacted to remove them, the removal of which said blogger facilitated in an act of good faith.  

Consistent with our mission of integrity and substantiated reporting, we had sources to back up our stories. Ironically, in what appears to be a concerted effort at scrubbing the internet, the backup stories were cleansed as well, including the stories’ underlying lawsuit which had been available on the University of Virginia site. That underlying lawsuit and its information, largely substantiating the facts and circumstances of the articles in question, are still publicly available, but far harder to find.

Since getting served on a Saturday afternoon, an irony not lost on us (the blogger did not ask the process server if he was Jewish), a group of people has been researching every inch of the web, submitting Freedom of Information Act requests and searching publicly available information to determine exactly why this issue is of such great importance to this family. The stories had been on the internet for well over 2 years.

As to the law firm representing the plaintiff, we can only say that they are no strangers to using the court system as a tool for quelling free speech.

The Sentosa Care Story is one example. It should be noted that the Courts dismissed that case against the ProPublica freelancers as a “fair and true report”.

 See here.  

See: TheDailyBeast: https://www.thedailybeast.com/the-brooklyn-machine-vs-the-first-amendment

The Brooklyn Machine vs. the First Amendment

A nursing home operator who says he was defamed in ProPublica is ignoring the publisher with deep pockets and instead taking aim at two freelance investigative reporters.

……

In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the state’s largest for-profit network of such facilities, SentosaCare. The story questioned why, despite “a record of repeat fines, violations and complaints for deficient care,” SentosaCare continued to receive state approval when purchasing new nursing homes.

In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCare’s attorney, Howard Fensterman, requesting information for a follow-up story focused on the company’s Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.

Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.

Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levy’s Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.

Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the borough’s Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan,and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.

Such a cast made for lively theater at a late April appearance in Wooten’s courtroom, with the two sides debating the defendants’ motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (who’s not involved in the case), the party boss appeared to be “leering” at Judge Wooten.

The crux of Fensterman’s complaint concerns not what’s in Lehman and Abramo’s ProPublica story, but what they left out (or what’s known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had “self-reported” the incidents to the relevant agencies.

In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission showsthat the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned “self-reporting” five times in his short presentation at the dismissal hearing.

Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a “cover-up” story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information “changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.”

Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, “The First Amendment allows for broad editorial discretion on what is and isn’t reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.”

In order to deter such a flood of retaliatory lawsuits, many states—including New York—have enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, “This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.”

Wooten’s ruling on whether the case will go to trial—or if not, whether he will impose anti-SLAPP penalties on the plaintiffs—is expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.

To read the article in its entirety, click here.

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