Monthly Archives: March 2011

What is the standard for a private person to sue a public official for defamation?

The Second Circuit of the United States Court of Appeals recently dismissed a defamation lawsuit brought by a private citizen against the mayor of Yonkers, New York.  Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011).

Selim Zherka, a citizen of Westchester County, New York, publishes the Westchester Guardian, a weekly local newspaper.  In 2007, the Guardian was highly critical of Philip Amicone, the Mayor of Yonkers, accusing him and his administration of corruption, fiscal mismanagement and police brutality.  Zherka claimed in his lawsuit that Amicone retaliated against him for making those accusations by publicly defaming him at a campaign event.  According to Zherka, Amicone called him a “convicted drug dealer,” an “Albanian monster” and a “thug.”  Amicone also said that Zherka would open “drug dens” and “strip clubs” throughout Yonkers and “loot” the “pension funds” of Yonkers’s residents if Amicone was not re-elected Mayor of Yonkers.

Zherka sued Amicone in the United States District Court for the Southern District of New York for violation of his First Amendment rights and per se defamation under New York common law.  Amicone admitted being present at the campaign event, but denied making any of the statements.  Amicone moved to dismiss Zherka’s lawsuit for failure to state a claim upon which relief could be granted.  The District Court granted Amicone’s motion and dismissed Zherka’s First Amendment claim with prejudice and dismissed his defamation claim under New York common law without prejudice.  Zherka appealed that decision to the Court of Appeals.

The Court of Appeals affirmed the District Court’s ruling and upheld the dismissal of Zherka’s First Amendment claim and his common law defamation claim.  The Court reasoned that Zherka could not establish that Amicone’s retaliatory comments “chilled” his speech in any way – that is, that they caused Zherka to refrain from speaking – which is required to establish a First Amendment violation under 42 U.S.C.A. §1983.  Id. at *2.

Zherka argued that the injury presumed as a result of his claim of per se defamation under New York common law was sufficient to establish an injury under §1983.  The Court disagreed, reasoning that Zherka’s alleged injury under New York common law was insufficient to serve as a substitute for the actual “chilling” of speech.  In fact, the Court found that Amicone’s comments seemed to influence Zherka to speak, rather than chill his speech.  For example, following Amicone’s comments Zherka published articles critical of Amicone with headlines such as “Mayor Amicone Stumbles Over the First Amendment,” “Dumb, Dumber and Dumbest,” and “Scrooge Amicone-Rapes Taxpayers; Rewards Cronies.”  Id. at *2.

Thus, the Court held that Zherka could not establish an injury sufficient to prove a violation of §1983.  In conclusion, the Court stated:

Retaliatory insults or accusations may wound one’s soul, but by themselves they fail to cross the threshold of measurable harm required to move government response to public complaint from the forum of free speech into federal court.

The arena of political discourse can at time be rough and tough.  Public officials must expect that their decisions will be subjected to withering scrutiny from the populace.  A public official’s response to that criticism is subject to limits, but the injury inflicted by that response must be real.  Without that limitation, the Constitution would change from the guarantor of free speech to the silencer of public debate.

Id. at *3.

Download Zherka v. Amicone, 2011 WL 710462 (2d Cir. 2011)


© 2011 Nissenbaum Law Group, LLC

May a ticket broker be sued for selling event tickets that it does not actually possess?

The Chancery Division of the New Jersey Superior Court in Essex County recently decided that ticket brokers who offer event tickets for sale without actually possessing those tickets are “service providers” entitled to immunity under the Communications Decency Act of 1996 (“CDA”).  Milgram v. Orbitz Worldwide, Inc., No. 09-4-9349 (Judge Costello, August 26, 2010).

Anne Milgram, New Jersey’s Attorney General, sued Orbitz and its ticket-broker affiliates for violation of New Jersey’s Consumer Fraud Act (“CFA”).  The grounds for that suit were two-fold.  First, Milgram alleged Orbitz was offering to sell tickets to attend a concert at Giants Stadium featuring Bruce Springsteen and the E Street Band without actually possessing those tickets.  Second, at least two of the tickets had section and row numbers that did not exist. Milgram alleged violations of the CFA and advertising regulations created pursuant to the CFA.

Orbitz argued that it was merely a “service provider” entitled to protection under the immunity provision of §230 of the CDA.  In other words, Orbitz was taking the position that the lawsuit for alleged violation the CFA was pre-empted by the immunity provision of the CDA.  The immunity provision grants immunity to service providers for posting information originating with a third-party user of its service.  Orbitz argued that the descriptions of the offered tickets were created by third-party sellers, not Orbitz.  Thus, Orbitz was simply a service provider entitled to immunity under the CDA.

The Court agreed with Orbitz and held that it was immune from suit pursuant to §230 of the CDA.  The Court noted that qualifying for immunity under the CDA requires three elements: 1) the entity seeking immunity must be a “provider or user of an interactive computer service;” 2) the alleged liability must be based on the entity having acted as a “publisher or speaker;” and 3) the entity may only claim immunity with regard to “information provided by another information content provider.”  Id.

The Court held that Orbitz satisfied all three elements.  First, there was no issue that it qualified as a “provider of an interactive computer service” as defined by the CDA.  Second, Orbitz acted as a “publisher or speaker.”  Per the Court, the plain language of §230 was designed to promote e-commerce and prevent lawsuits from shutting down websites.  Orbitz’ conduct in advertising and selling concert tickets to consumers without actually possessing those tickets is conduct that “fits squarely within the CDA’s purview.”  Id.  Third, Orbitz was not an “information content provider” under the CDA.  While such a designation would have been fatal to Orbitz’ immunity claim, the Court determined that Orbitz actions were “nothing more than the exercise of a publisher’s traditional editorial functions.”  Id.  Orbitz was not responsible for creating the inaccurate or misleading ticket listings as the information originated with the third-party sellers using Orbitz’ website.  Thus, the Court held that Orbitz was entitled to immunity under the CDA as “a provider of interactive computer service that served as a conduit for information provided by another information content provider.”  Id.


© 2011 Nissenbaum Law Group, LLC

Can a lawyer speaking for a client sue when a newspaper misquotes what she says?

Recently, an appellate court in Texas refused to deem a lawyer representing a native American tribe a “public figure” for purposes of a libel lawsuit.  A newspaper article covering an increasingly public controversy within the Kickapoo Indian Tribe stated that the tribe’s lawyer, Gloria Hernandez, was “skimming 10% of casino profits off the top.”  In fact, what she had said was that “she was hired to be legal counsel for the tribe in October 2002, and was on retainer at the time of the hearing.  In response to a question about how much of her legal practice is devoted to work for the tribe, Hernandez testified, ‘I make roughly about ten percent of my income from the tribe.’” ZYZY Corp. v. Hernandez, No. 04-10-00311-CV, 2011 WL 228101 at *1 (Tex.App.-San Antonio 2011)

Hernandez sued the newspaper for libel.  The newspaper argued that Hernandez had injected herself into the public controversy in an attempt to influence its outcome.  As a result, the newspaper argued, Hernandez was a “limited-purpose public figure” and could only prove libel by showing the newspaper acted with actual malice.  The trial court disagreed with the newspaper and denied its motion for summary judgment.

The appellate court agreed with the trial court and upheld its decision.  The appellate court held that Hernandez’s actions, which included accompanying the tribe to meet with elected officials to discuss the controversy, did not render her a public figure.  Instead, the evidence showed that Hernandez provided legal advice and representation to the tribe.  There was no evidence she became involved in the controversy beyond her role as legal advocate.  There was also no evidence that she thrust herself into the public eye by engaging the media, had any special access to the media or attempted to use the media to influence the outcome of the controversy in any way.  As a result, Hernandez was not a “limited-purpose public figure” under the law and did not have to show that the newspaper acted with actual malice to prove libel.  Download ZYZY Corp. v. Hernandez, No. 04-10-00311-CV, 2011 WL 228101 (Tex.App.-San Antonio 2011)


© 2011 Nissenbaum Law Group, LLC

Can an employer legally check an employee’s password-protected social networking site?

In a recent decision, a Federal District Court for the District of  New Jersey upheld a jury’s verdict that a chain restaurant violated the Federal Stored Communications Act and a similar New Jersey law by knowingly and intentionally accessing its employees’ private chat group on

The managers of Houston’s Restaurant learned of the chat group from employee Karen St. Jean and gained access to it using her password.  As a result, several employees lost their jobs based upon comments made about Houston’s on the site. 

Those employees sued Houston’s and a jury trial was held.  The jury decided the managers’ access to the site was unauthorized after hearing testimony from St. Jean that she felt pressured to provide her password to her managers.  In addition, the jury decided that the managers knew St. Jean felt pressured to provide her password.  As a result, the jury rejected Houston’s argument that its managers genuinely believed they had authority to access the chat group.  The fact that the managers accessed the site on five separate occasions was sufficient to establish that they knowingly and intentionally accessed the site without authorization.  In fact, the jury determined that the managers’ actions were so malicious as to justify an award of punitive damages in addition to compensatory damages.  Pietrylo v. Hillstone Restaurant Group, No. 06-5754, 2009 WL 3128420 (D.N.J. 2009).

This case illustrates the importance of creating a clear policy regarding an employee’s use of social networking sites, especially when comments about that person’s employer may be contained on the site.