Donald Trump memorably threatened to open up libel laws as president, yet such an attack on the First Amendment would need to happen in the courts. And given a recent ruling in his favor in a defamation suit aimed at him, Trump knows full well that most judges maintain a very high bar for libel cases.
Even so, a libel suit can provide powerful interests with a potent weapon against intrepid reporters. Such a conflict is currently playing out in Brooklyn, and the drama features a notable cast of characters.
In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the states largest for-profit network of such facilities, SentosaCare. The story questioned why, despite a record of repeat fines, violations and complaints for deficient care, SentosaCare continued to receive state approval when purchasing new nursing homes.
In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCares attorney, Howard Fensterman, requesting information for a follow-up story focused on the companys Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.
Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.
Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levys Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.
Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the boroughs Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan, and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.
Such a cast made for lively theater at a late April appearance in Wootens courtroom, with the two sides debating the defendants motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (whos not involved in the case), the party boss appeared to be leering at Judge Wooten.
The crux of Fenstermans complaint concerns not whats in Lehman and Abramos ProPublica story, but what they left out (or whats known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had self-reported the incidents to the relevant agencies.
In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission shows that the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned self-reporting five times in his short presentation at the dismissal hearing.
Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a cover-up story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.
Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, The First Amendment allows for broad editorial discretion on what is and isnt reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.
Get The Beast In Your Inbox!
Start and finish your day with the top stories from The Daily Beast.
A speedy, smart summary of all the news you need to know (and nothing you don't).
Subscribe
Thank You!
You are now subscribed to the Daily Digest and Cheat Sheet. We will not share your email with anyone for any reason.
In order to deter such a flood of retaliatory lawsuits, many statesincluding New Yorkhave enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.
Wootens ruling on whether the case will go to trialor if not, whether he will impose anti-SLAPP penalties on the plaintiffsis expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.
Read more:
The Brooklyn Machine vs. the First Amendment - Daily Beast
- College sued for stopping students from handing out Constitution - April 26th, 2014 [April 26th, 2014]
- Argument preview: First Amendment protections for public employees subpoenaed testimony - April 26th, 2014 [April 26th, 2014]
- China toughens environment law to target polluters - April 26th, 2014 [April 26th, 2014]
- 1st Amendment - Laws - April 26th, 2014 [April 26th, 2014]
- GBS205 Legal Environment -THE FIRST AMENDMENT - Video - April 26th, 2014 [April 26th, 2014]
- Supreme Court Preview/Review #2 - Video - April 26th, 2014 [April 26th, 2014]
- ConLaw Class 26 - The First Amendment Speech II - Video - April 26th, 2014 [April 26th, 2014]
- Scalia Ginsburg debate NSA and first amendment - Video - April 26th, 2014 [April 26th, 2014]
- Political Correctness vs First Amendment - Video - April 26th, 2014 [April 26th, 2014]
- ConLaw Class 25 - The First Amendment -- Speech I - Video - April 26th, 2014 [April 26th, 2014]
- The First Amendment - Video - April 26th, 2014 [April 26th, 2014]
- [USA] First Amendment abused - Video - April 27th, 2014 [April 27th, 2014]
- Cliven Bundy and the First Amendment - Video - April 27th, 2014 [April 27th, 2014]
- First Amendment Tees Co. Inc. FAT-Tee Intro Video of who we are, and what we stand for - Video - April 27th, 2014 [April 27th, 2014]
- University Attacks First Amendment Costs $50,000 Plus - Video - April 27th, 2014 [April 27th, 2014]
- First Amendment Lawsuit After '8theist' Vanity Plate Denied, 'Baptist' Approved - Video - April 27th, 2014 [April 27th, 2014]
- How A Public Corruption Scandal Became A Fight Over Free Speech - April 28th, 2014 [April 28th, 2014]
- PETITION FOR A WRIT OF CERTIORARI; Crystal Cox v. Obsidian Finance Group - Video - April 28th, 2014 [April 28th, 2014]
- MSNBC: Marjorie Dannenfelser Discusses SBA List First Amendment Case - Video - April 28th, 2014 [April 28th, 2014]
- United Church of Christ sues over North Carolina ban on same-sex marriage - April 29th, 2014 [April 29th, 2014]
- Federal judge: Delayed access to court records raises First Amendment concerns - April 29th, 2014 [April 29th, 2014]
- Justices Troubled By Their Earlier Ruling On Public Employee Speech Rights - April 29th, 2014 [April 29th, 2014]
- Judge Won't Stop Jason Patric from Using Son's Name for Advocacy Purposes - April 29th, 2014 [April 29th, 2014]
- PBL in Journalism I, 2014 - Video - April 29th, 2014 [April 29th, 2014]
- John Dukes on First Amendment - Video - April 29th, 2014 [April 29th, 2014]
- Were Sterlings First Amendment Rights Violated? Nope. - April 30th, 2014 [April 30th, 2014]
- Senate Dems vow vote to change Constitution, block campaign funding - May 1st, 2014 [May 1st, 2014]
- What happened to Sterling was morally wrong - May 1st, 2014 [May 1st, 2014]
- Former Supreme Court Justice Wants to Amend the Constitution - May 1st, 2014 [May 1st, 2014]
- Donald Sterling is my HERO - Video - May 1st, 2014 [May 1st, 2014]
- Retaining Government Power to Make Economic Policy for Internet Access: Role of the First Amendment - Video - May 1st, 2014 [May 1st, 2014]
- America was just defeated from within TODAY 4/29/2014 - Martial law is next - Video - May 1st, 2014 [May 1st, 2014]
- Opposition To Proposed Monitoring Of Hate Speech By Federal Agency The Kelly File - Video - May 1st, 2014 [May 1st, 2014]
- Westfield Mayor to pay $53K in campaign sign violation case - Video - May 1st, 2014 [May 1st, 2014]
- ConLaw 1 Class 27 - The First Amendment - Free Exercise - Video - May 1st, 2014 [May 1st, 2014]
- PEASE: Free speech zones on Bundy Ranch violated First Amendment - May 1st, 2014 [May 1st, 2014]
- Bar Owner Prevails in Buck Foston First Amendment Trial - May 1st, 2014 [May 1st, 2014]
- Was Donald Sterling's First Amendment Right to Free Speech Violated? - Video - May 1st, 2014 [May 1st, 2014]
- First Amendment common sense - May 2nd, 2014 [May 2nd, 2014]
- The First Amendment Doesn't Allow us to Silence Opposition; Get Rid of Limits on Political Speech - Video - May 3rd, 2014 [May 3rd, 2014]
- Save Us Chuck - First Amendment Zones - Video - May 3rd, 2014 [May 3rd, 2014]
- HAROLD PEASE: Free speech zones on Bundy Ranch violated First Amendment - May 4th, 2014 [May 4th, 2014]
- In our opinion: Why government can't tackle hate speech without shredding First Amendment - May 4th, 2014 [May 4th, 2014]
- In our opinion: Can't tackle hate speech without shredding First Amendment - May 4th, 2014 [May 4th, 2014]
- Sen. Ed Markey proposes eliminating free speech - Video - May 4th, 2014 [May 4th, 2014]
- Alabama Chief Justice Stunning Legal Ignorance - Video - May 4th, 2014 [May 4th, 2014]
- Church Uses First Amendment Protections To Perform Same Sex Marriages - Video - May 4th, 2014 [May 4th, 2014]
- first amendment test filming Tucson FBI Headquarters. - Video - May 4th, 2014 [May 4th, 2014]
- "First Amendment ONLY for Christians," Says Alabama Chief Justice Roy Moore - Video - May 5th, 2014 [May 5th, 2014]
- Endangered Speeches - Video - May 5th, 2014 [May 5th, 2014]
- First Amendment Monument Music Video by Daniel Brouse - Video - May 6th, 2014 [May 6th, 2014]
- first amendment rights - Video - May 6th, 2014 [May 6th, 2014]
- News media challenges ban on journalism drones - May 6th, 2014 [May 6th, 2014]
- WHAT FIRST AMENDMENT - Video - May 6th, 2014 [May 6th, 2014]
- Letter: First Amendment rights trampled - May 8th, 2014 [May 8th, 2014]
- News outlets say US drone ban breaches First Amendment - May 8th, 2014 [May 8th, 2014]
- Chucking the First Amendment: Schumers cranky scheme - May 8th, 2014 [May 8th, 2014]
- Screw the First Amendment | We cant let people pray? - Video - May 8th, 2014 [May 8th, 2014]
- Chief Justice: 1st Amendment Only Protects Christians - Video - May 8th, 2014 [May 8th, 2014]
- Inside the Classroom with Professor Leslie Kendrick - Video - May 9th, 2014 [May 9th, 2014]
- 2014 Civics Video Awards First Amendment - Video - May 9th, 2014 [May 9th, 2014]
- .First Amendment protects political speech, not profanity - Video - May 9th, 2014 [May 9th, 2014]
- Charles "Chip" Babcock on Campaign Finance and the First Amendment - Video - May 9th, 2014 [May 9th, 2014]
- A First Amendment attack on Assembly... in George Washington - May 9th, 2014 [May 9th, 2014]
- SUPREME STUPIDITY Kills The First Amendment - RIP Separation of Church & State (1787-2014) - Video - May 10th, 2014 [May 10th, 2014]
- FBI Agents Harass Photographer: First Amendment Test - Video - May 10th, 2014 [May 10th, 2014]
- History Project: First Amendment. - Video - May 10th, 2014 [May 10th, 2014]
- SDG&E Challenges The First Amendment and Loses - Video - May 11th, 2014 [May 11th, 2014]
- Richmond City Council Uses Tricks to Undermine First Amendment - Video - May 11th, 2014 [May 11th, 2014]
- Their opinion: Disagreeing on the First Amendment - May 12th, 2014 [May 12th, 2014]
- The Clash Between the First Amendment and National Security in Times of War Symposium - Video - May 12th, 2014 [May 12th, 2014]
- City Charter amendment passes 581-556 - May 15th, 2014 [May 15th, 2014]
- David Allen Legal Tuesday: Flashing Automobile Lights and the First Amendment - Video - May 15th, 2014 [May 15th, 2014]
- Senator Chuck Schumer is against the First Amendment then and now - Video - May 15th, 2014 [May 15th, 2014]
- Facebook SUCKS! - Video - May 15th, 2014 [May 15th, 2014]
- Dems threaten Kochs with a constitutional amendment - May 16th, 2014 [May 16th, 2014]
- Reid backs campaign spending limit - May 16th, 2014 [May 16th, 2014]
- Tennessee Boy Recites First Amendment Rights After Being Told to Put Away His Bible - Video - May 16th, 2014 [May 16th, 2014]
- 'Shutup,' they explained Crippling the First Amendment - May 18th, 2014 [May 18th, 2014]
- Reid Seeks To Change First Amendment To Stop Koch Brothers - Video - May 18th, 2014 [May 18th, 2014]