Orthomom Reports - Freedom of Speech Prevails:
Orthomom Lawsuit: VICTORY!
Judge Marcy Friedman has handed down a decision in the Orthomom defamation lawsuit, and it has come back as a complete victory for myself as well as for the commenters on this site. More importantly, this is a huge victory for the First Amendment, and for the right of private citizens to express themselves freely.
I also view this as a personal victory, as the judge has flatly stated that none of the statements I or my commenters have made regarding Ms. Greenbaum were actionable - either due to the fact that they are statements of clear opinion, or due to their being true.
The judge upheld the assertions of my attorney, Paul Alan Levy of Public Citizen, that the statements in which Ms. Greenbaum claimed I called her an "anti-semite" and a "bigot" were untrue - as only the statement of "bigot" was made in reference to Ms. Greenbaum, and was in actuality made by anonymous commenters to my blog. Further, Judge Friedman ruled that those statements, even as made by said anonymous commenters, are clearly statements of opinion, and thus not actionable as defamatory.
Significantly, also, Orthomom’s statements, as well as those of the anonymous
commentators, are protected opinion. Whether a statement expresses fact or opinion is a question of law for the court, to “be answered on the basis of what the average person hearing or reading the communication would take it to mean.”
...The statements of both Orthomom and the anonymous commentators are based on the single disclosed fact, the truth of which Greenbaum does not contest, that Greenbaum opposes the use of public school funds for programs for Yeshiva students and others who receive their full-time education at private schools. As such, the statements are readily identifiable as protected opinion.
Even more interesting is the fact that the judge dismissed Greenbaum's claims that I defamed her when I suggested that she perjured herself in signed court documents by falsely asserting that I had made certain statements. Though it seems that claims of perjury might not fall under the rubric of protected opinion, Judge Friedman failed to find for Greenbaum because my claim, that Greenbaum had made false claims under oath, are "incontrovertibly true". Which means, of course, that the judge found that Ms. Greenbaum actually did, as I assert in this post, make a false claim under oath:
A claim of defamation may be based on an accusation that a person has committed the crime of perjury. (See Immuno A.G., 77 NY2d at 244.) However, the statements in these postings about the allegations of the petition are incontrovertibly true, as Orthomom never defamed Greenbaum by stating or implying that she was a bigot or anti-semitic and, in fact, never used the words. This claim therefore is clearly not actionable.
The bottom line here is that this failed attempt to quell free speech has instead served to reaffirm the First Amendment right or each one of us to speak freely without fear of retribution or ramifications. The fact that a public official attempted to muzzle vocal critic of her policies by filing a meritless suit that included false claims and smears against my truthfulness is appalling - and the judge's decision clearly shows that the law is against such attempts. The fact that in the process, Ms. Greenbaum succeeded only in publicly smearing her own reputation and integrity is gravy.
I would like to thank my attorney, Paul Alan Levy, and his local counsel, Donald Rosenthal, for all their efforts on behalf of this cause. Their work has helped protect our constitutional rights as citizens of this country.
Public Citizen's press release can be found here. The PDF of the decision can be found here.