A former Lawrence school board member’s request for disclosure of the names of anonymous Internet critics has been rebuffed by a state judge, who ruled that the comments were protected speech.
In a proceeding for pre-action discovery, Manhattan Supreme Court Justice Marcy S. Friedman ( See Profile) found that Google, the Internet service provider hosting the blog “Orthomom,” did not have to disclose the identities of blogger Orthomom or of the anonymous users who posted allegedly defamatory comments on the site about Pamela Greenbaum.
“The Lawrence school district has been the arena for a highly charged dispute between the public school minority, which Greenbaum represents, and the private school majority, over the extent to which the Lawrence public schools should serve the Orthodox Jewish community,” wrote Justice Friedman in Greenbaum v. Google, Inc., 102063/07. “The relief sought by Greenbaum, on the eve of a school board election, would have a chilling effect on protected political speech.”
The decision will be published Friday, Nov. 16.
Ms. Greenbaum was a member of the school board when her action was filed but was subsequently defeated for re-election.
Google and Ms. Greenbaum agreed in a court stipulation that the information was to be released unless the blog’s operator, a self-described Orthodox Jewish mother of school-age children in the Five Towns, objected. Represented by pro bono counsel, Orthomom sought and was granted leave to intervene.
The blog is dedicated to “issues within both the Five Towns community on Long Island and the larger community of Orthodox Jewry.” The court case arose out of a Jan. 11, 2007 blog post in which Orthomom criticized Ms. Greenbaum’s stance that public school teachers may teach non-public school students only if they are not being paid with public funds. The post ended with the following statement: “Way [for Ms. Greenbaum] to make it clear that you have no interest in helping the private school community.”
Readers responded with the following anonymous posts that were also actionable, in Ms. Greenbaum’s view: “Pam Greenbaum is a bigot and really should not be on the board”; “Greenbaum is smarter than she seems. Unfortunately, there is a significant group of voters who can’t get enough of her bigotry.”
Ms. Greenbaum’s initial petition for pre-action disclosure contended that “‘Orthomom’ wrote that my concern [about the legality of using school district funds for private school students] revealed an anti-semitic agenda, given that over fifty percent of our district’s students attend private school, and the vast majority of those attend Yeshivas.”
However, Justice Friedman pointed out that “none of Orthomom’s own statements uses the words bigot or anti-semite to characterize Greenbaum’s position. The anonymous commentators’ statements use the word bigot not anti-semite.”
Citing Liberty Imports, Inc. v. Bourguet, 146 AD2d 535, 536 (1st Dept. 1989), Justice Friedman noted that pre-action disclosure is not available unless there is “a meritorious cause of action” and the information sought was “material and necessary to the actionable wrong.”
Here, the judge concluded, the statements at issue were “inactionable as a matter of law.”
Justice Friedman found that Orthomom’s owns statements commented on “a matter of interest to her religious community and the public in general.” Moreover, the judge wrote that they were not reasonably susceptible of a defamatory connotation.
“Greenbaum’s defamation claim against Orthomom reduces to the insupportable assertion that Orthomom implied that Greenbaum is an anti-semite merely because Orthomom disagreed with Greenbaum’s position on the use of public funding for a program that could have affected the Orthodox Jewish community,” she said.
In any case, Justice Friedman said, “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.” Immuno A.G. v. Moor-Jankowski, 77 NY2d 235 (1991).
Ms. Greenbaum also complained about a subsequent posting in which Orthomom accused her of lying in a court document.
“How in the world does an elected official who expects to command the respect of her constituents put these falsehoods and blatant fabrications in a legal document, where disproving them in a court of law will be about as easy as it was here in this post?” Orthomom asked in her blog. “Is this the type of school board member we expect to present as a representative and role model to our students? Someone who would not hesitate to perpetuate falsehoods in a legal setting?”
Again, Justice Friedman held that the statement was not actionable.
“A claim of defamation may be based on an accusation that a person has committed the crime of perjury,” said the judge. “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-semite and, in fact, never used the words. This claim therefore is clearly not actionable.”
Paul Alan Levy of the Washington, D.C.-based Public Citizen Litigation Group represented Orthomom.
“It’s clear that the judge in this case relied on the evidence before her,” Mr. Levy said. “A person doesn’t get to identify the alleged wrongdoer without some evidence [of wrongdoing].”
Reached by e-mail, Orthomom said, “It’s satisfying to see the system work. The judge saw Ms. Greenbaum’s filing for what it was – a cynical attempt to use the courts to silence a vocal critic on the eve of an election. It’s troubling to see an elected official seem to have such thin skin that she would think it’s reasonable to file a lawsuit in response to what was essentially an attack on her political position.”
Calls to Ms. Greenbaum’s attorney, Adam B. Feder, of Feder & Rodney in Brooklyn, were not returned. Ms. Greenbaum also could not be reached.
Calls to Google’s attorney, Tonia O. Klausner, of Wilson, Sonsini, Goodrich & Rosati, of Manhattan, were not returned.
- Vesselin Mitev can be reached at firstname.lastname@example.org.