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special to the national law journal The anti-defamation League (ADL) must pay for defamatory remarks by one of its local officials. On April 22, the 10th U.S. Circuit Court of Appeals upheld a Denver jury’s April 2000 verdict that the ADL and the director of its Denver office, Saul Rosenthal, must pay nearly $10 million to an Evergreen, Colo., couple whose behavior toward their Jewish neighbors Rosenthal had called “one of the most astonishing cases of anti-Semitic harassment” his office had ever confronted. In 1994, the Quigleys welcomed their new neighbors, the Aronsons, who are Jewish. The friendly relationship soured within a month and degenerated into namecalling and aggressive behavior, the court said. Using a police scanner, the Aronsons began listening to and recording the Quigleys’ cordless telephone conversations. They were overheard referring to the Aronsons’ religion and joking about affixing an oven door to the front door of their home. The Aronsons filed a suit against the Quigleys, alleging ethnic intimidation, religious discrimination and defamation. Rosenthal held a press conference and went on a radio talk show to discuss the case and to condemn the Quigleys’ behavior. Two days later, a district attorney filed ethnic-intimidation charges against the Quigleys. As a result of Rosenthal’s comments, the Quigleys said, they became ostracized within their community, received hate mail and were publicly denounced by their priest. The DA later dismissed the case, calling what was said in the recorded conversations “venting” and “sick humor.” The Aronsons’ civil suit was settled. The Quigleys pursued a claim against Rosenthal and the ADL, alleging defamation, invasion of privacy and violation of federal wiretap laws. After reducing the jury’s award by $600,000, the trial court entered judgment against Rosenthal and the league for $9.9 million in economic, non-economic, state and federal punitive damages. A 2-1 panel affirmed on all but the invasion-of-privacy claim and did not disturb the damages award. The court rejected the ADL’s claim that the Quigleys had to prove Rosenthal acted with actual malice when he made his statements. Under U.S. Supreme Court cases New York Times Co. v. Sullivan and Gertz v. Robert Welch Inc., a libel plaintiff must prove more than mere negligence when the alleged defamatory statements are about a matter of public concern. The court said that neither the Aronsons’ case nor Rosenthal’s statements about religious and ethnic discrimination was a matter of public concern. Disagreeing, the ADL’s corporate counsel, Jill Kahn Meltzer, said, “In today’s society, statements of prejudice and discrimination are almost universally recognized as matters of public concern.” The Quigleys’ lawyer, Larry Treece of Denver’s Sherman & Howard countered, “If the defamatory statements were true, it would be difficult to say that the matter was of public concern . . . .However, a defamation defendant cannot illegally seize a private conversation about matters not of public concern and turn it into a matter of public concern by lying about what was said.” Robert F. Nagel, a law professor at the University of Colorado, worked on the Quigleys’ brief. He said that the court’s detailed account of the dispute emphasized its private nature. The way it became public, he added, was by “a reckless mischaracterization by the defendant.” Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, said that the court used too narrow an interpretation of public concern, especially in a state that usually exceeds federal free speech protection requirements. “Public concern is just about anything anybody is interested in reading or talking about,” he said.

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