A New York federal judge said in a strong and firm opinion released this week that an article written by former New York Gov. Eliot Spitzer about financial and business crimes in the state is not libelous because it is not “of and concerning” the plaintiff.
The opinion comes days after U.S. District Judge J. Paul Oetken in Manhattan dismissed a $60 million libel lawsuit against Spitzer and the online magazine Slate. William Gilman, a former employee of insurance company Marsh & McLennan, filed the lawsuit in 2011 in response to an article written by Spitzer, which ran in Slate last year. Gilman claimed in the lawsuit that the article falsely accused him of criminal conduct and was published with reckless disregard of the truth.
Oetken wrote in an opinion released Monday that the article never refers specifically to Gilman, and that the references to Marsh and its employees are “far too large and generalized to serve as proxies for Gilman under the law of defamation, as bounded by the First Amendment.”
Jay Ward Brown, a Washington, D.C., media lawyer who represented Spitzer, said in an interview that the court got the conclusion firmly right.
“It’s a reaffirmation, in very strong and clear terms, of the ‘of and concerning’ requirement as a central aspect of the plaintiff’s case, and it shows that it is appropriate to dismiss in the earliest juncture cases where plaintiffs can’t make out that requirement,” Brown said.
In August 2010, Spitzer wrote an editorial article for Slate discussing his prosecution of financial and business crimes while he served as the attorney general of New York. In the article, Spitzer wrote about his prosecution against the “blatant abuse of law and market power” by Marsh and its employees. He wrote that Marsh’s behavior harmed its customers “while Marsh and its employees pocketed the increased fees and kickbacks.”
Although eight Marsh executives, including Gilman, were indicted in 2004 in connection with a criminal investigation undertaken by Spitzer's office, the judge dismissed the charges against Gilman, stating that exculpatory evidence had not been disclosed during the trial.
Gilman argued in his lawsuit that anyone who read the article would think the comments were about him, but Oetken said that readers could not reasonably infer that Spitzer was specifically referring to Gilman when he wrote about Marsh and its employees.
"The notion that they would bring a libel case upon an accurate representation of what they've done is both antithetical to what the First Amendment stands for and something that chills First Amendment rights," Spitzer said in an interview.
Spitzer and Slate had filed a counterclaim against Gilman under New York’s anti-SLAPP statute, which the judge also dismissed, finding that the subject matter of the article is not the type of material addressed by the narrow law.
Edward McNenny, another former Marsh employee, has also filed a lawsuit against Spitzer and Slate, but that case has been stayed in the state court, pending the outcome of the Gilman suit. Brown said it is unclear whether Gilman will file an appeal or if McNenny will go forward with his case.
"What is really going on is that the folks who have destroyed our economy are trying to rewrite history and bring pressure to anyone who is trying to tell the truth about their massive corruption," Spitzer said. "The more they try to repress that history, the more they can be sure I'll tell the story."
Related Reporters Committee resources:
· SLAPP Stick: Fighting frivolous lawsuits against journalists: New York