By Hella Winston and Amy Sara Clark (The Jewish Week)
February 25, 2016
Sam Kellner's defamation suit against The Jewish Daily Forward lives to fight another day.
Earlier this week, Manhattan Supreme Court Judge Debra A. James denied the newspaper's motion to dismiss the case, which was filed by Kellner in November 2014.
In 2008, Kellner brought allegations of his son’s sexual abuse by Baruch Lebovits to the police and worked closely with law enforcement to bring forward additional Lebovits victims. Lebovits was convicted in 2010 and sentenced to 10 ½ to 32 years in prison. But that conviction was overturned on a prosecution error (Lebovits took a plea deal in 2014). In 2011, Kellner was indicted for perjury and extortion related to the Lebovits case but in 2014 those charges were dropped.
The defamation suit concerns a 2013 article written by Paul Berger, “Sam Kellner’s Tangled Hasidic Tale of Child Sex Abuse, Extortion and Faith,” and a tweet, mistakenly referring to Kellner as a convicted extortionist. Kellner’s complaint alleges that Berger defamed him by “falsely reporting that contents of certain ‘secret’ recordings revealed that” Kellner “was engaged in criminal conduct” and the tweet, which went uncorrected by the paper for six days after they were alerted to the error.
The Forward sought to have the case dismissed on the grounds that the article was purely opinion, and thus protected speech. It also argued that the mistaken language of the tweet was inadvertent and not intended to defame Kellner.
Justice James rejected the claim that the article was an opinion piece but, wrote that based on the evidence presented so far, the piece appears to be based on undisclosed and/or misrepresented facts. As for the tweet, James ruled that its “required intent cannot be determined on these motion papers.”
The judge also found that in its motion to dismiss, the Forward failed to prove that Kellner is a public figure rather than a private person, writing that he "was drawn into the the public forum against his will in order to obtain redress for his son, and then to defend himself.” This is a key distinction because as a private figure, Kellner would have to show only that The Forward acted negligently rather than with actual malice. However, the judge also noted that this determination could change after the discovery period, during which witnesses are deposed, and more facts come into evidence.
Andrew T. Miltenberg, a veteran trial lawyer who focuses on complex commercial litigation and civil rights told the Jewish Week that the fact that the court has not, so far, deemed Kellner a public figure "is critical."
"To have held otherwise would have had the effect of frightening the general public away from reporting crimes or otherwise comfortably being a being a witness to events of great import. I am encouraged by the fact the Court would not allow the father of an abuse victim to be silenced or discredited," he said.
Samuel Norich, The Forward’s publisher and CEO, said that James’ denial of his paper’s motion to dismiss does not mean the Forward’s defense has no merit, but only that more information is needed before a decision can be reached.
“The court concluded that a number of the issues we raised could not be decided on a motion to dismiss but have to await discovery,” he said. “We look forward to presenting our case to the judge on a fuller record.”
As for Kellner’s attorney, Niall MacGiollabhui, he is also looking forward — to the discovery process.
"We are pleased with Judge James's comprehensive and well-reasoned decision,” he said. “We now look forward to the discovery stage of this litigation, during which the perfidious nature of Paul Berger's reporting and his collusion with a serial pedophile will be laid bare."
A preliminary hearing is set to take place on April 5th.