Wednesday, February 11, 2009
Court of Appeal Revives Writer’s Defamation Suit Against Bloggers
By a MetNews Staff Writer
The Court of Appeal for this district has revived parts of a Jewish writer’s suit against two bloggers whom she claims defamed her on the Internet because they object to her staunchly pro-Israel views.
Justice Fred Woods, in an unpublished opinion Monday for Div. Seven, said Rachel Neuwirth presented sufficient evidence of malice to avoid an anti-SLAPP motion with respect to claims that Richard Silverstein accused her of backing terrorism and that Peter Beinin accused her of having threatened his life.
The panel did, however, affirm the dismissal of Neuwirth’s claim that Silverstein was liable for repeating Beinin’s accusation and held that Silverstein is entitled to attorney fees for prevailing on that portion of his motion.
Silverstein, who lives in Washington state, edits a blog called “Tikkun Olam-Make the World a Better Place,” in which he continually blames Israel for the lack of a peaceful solution to the Israeli-Palestinian conflict. In May 2007, he published an article regarding the settlement of Neuwirth’s lawsuit against a local rabbi, Chaim Seidler-Feller, and Hillel: The Foundation for Jewish Campus Life at UCLA, where the rabbi was serving as director when the suit arose in 2003.
The suit ended with a cash payment in an amount described as “substantial” and an apology in which the rabbi admitted having hit and kicked Neuwirth without provocation outside Royce Hall on the UCLA campus, where Harvard law professor Alan Dershowitz was promoting his book “The Case for Israel.”
The event was picketed by supporters of the Palestinians, and Seidler-Feller approached one of them to urge he attend an upcoming event involving Sari Nusseibeh, a prominent Palestinian then involved in a non-governmental peace effort.
Neuwirth, who has suggested in her writings that peace between Israel and the Palestinians is an impossibility and that responsibility for the Palestinians should be placed on the Arab nations, alleged that the rabbi flew into a rage and attacked her after she “calmly” told him that Nusseibeh had been identified by Israeli intelligence during the 1991 Gulf War as having phoned Iraqi officials and encouraged them to fire missiles into Israel.
Despite the settlement, Silverstein wrote in May 2007 that he found Seidler-Feller’s earlier denials credible and that Neuwirth was “Kahanist swine.” The term Kahanist refers to followers of the late Meir Kahane, a rabbi and onetime member of the Israeli parliament who led a right-wing extremist group, and is more broadly used to describe the view that Israel should annex the Palestinian territories to form a “Greater Israel” from which Arabs would be expelled.
Because Kahane’s organization, Kahane Chai, has been designated a terrorist group by the United States and Israel, among others, Neuwirth claimed, Silverstein’s comments effectively accused her of being a terrorist and were libelous per se.
Beinin is a Stanford professor who allegedly published on the Internet, 10 days after Silverstein’s allegedly defamatory posting, a statement accusing Neuwirth of having made a death threat. Neuwirth alleged in her complaint that the allegation was false, and she also accused Silverstein of republishing Beinin’s statement despite knowing it was false.
Silverstein and Beinin both filed anti-SLAPP motions. Silverstein argued that his “Kahanist” reference was non-actionable opinion, and that it was not false. He also contended that his posting about the alleged death threat to Beinin was true and that he was, in any event, immune from liability for republication of Internet material under Sec. 230 of the Communications Decency Act of 1996.
Beinin, who has also been critical of Israel, claimed in his declaration that Neuwirth left him a series of abusive phone messages in September 2003 that “were very violent in their tone” and caused him sufficient concern that he played them for his department chair and then for a police officer.
The officer called Neuwirth, who agreed to stop calling Beinin. Beinin, who took no further action after that call, said he was deposed regarding Neuwirth’s calls as part of Neuwirth’s suit against Seidler-Feller.
Neuwirth responded that Silverstein had made a number of false comments about her, particularly in accusing her of being a Kahanist and of lying in her account of the incident with the rabbi. As for Beinin, she acknowledged being upset at his anti-Israel comments, particularly since he is Jewish, but said the claims that she threatened to kill him were “blatantly false.”
Los Angeles Superior Court Judge John Reid granted both defendants’ anti-SLAPP motions and awarded more than $8,000 in attorney fees.
Woods said the trial judge was correct in striking Neuwirth’s claim with respect to Silverstein’s republication of Beinin’s comments, based on Sec. 230, but that the motions should otherwise have been denied.
The justice agreed with the defendants that their alleged statements constituted speech in a public forum on an issue of public interest, broadly defined, since “Beinin and Silverstein hold views contrary to those of Neuwirth with respect to Israeli-Palestinian relations and posted their comments on Web sites where such views are exchanged and debated.”
Woods concluded, however, that the plaintiff had met her burden under the anti-SLAPP statute of showing that she would likely prevail on her claims that Silverstein had falsely accused her of supporting terrorism and that Beinin had falsely accused her of threatening his life.
“[N]ot only Neuwirth’s evidence but also Silverstein’s and Beinin’s own evidence undermines both respondents’ claims that Neuwirth cannot establish malice....,” the justice wrote. “The record contains considerable evidence to support a finding of malice with respect to Silverstein’s statement that Neuwirth is ‘Kahanist swine.’ Indeed, even if he cannot be held liable for his repetition of Beinin’s death threat accusation, it undermines his contention that the statement was merely nonactionable opinion rather than an assertion of fact. Similarly, Beinin does not dispute that in his 2004 deposition he specifically testified that he did not believe Neuwirth had threatened his life. Crediting Neuwirth’s evidence for purposes of these special motions to strike, it was error to conclude that she could not prevail on her claims as a matter of law.”
Attorneys on appeal were Charles L. Fonarow of Los Angeles for Neuwirth, Suman Chakraborty of Dewey & LeBoeuf’s New York office and Janis White of Lane Powell in Seattle for Silverstein, and Steven J. Freeburg of Pasadena’s Freeburg, Nettels & Schaldenbrand for Beinin.
The case is Neuwirth v. Silverstein, B205521.
Copyright 2009, Metropolitan News Company