Saturday, October 23, 2010

See You In Court! Brooklyn Coffee Shop Owners Slap NYT, Oliver Strand With Libel Lawsuit Over Blog Post.

It isn't often these days that the subject of an unfavorable news story takes on the mighty NYT in court.

But the owners of Gorilla Coffee, a popular Park Slope beanery, have boldly slapped the paper and its coffee correspondent with a libel lawsuit, over a blog post that reported last April on allegations of barista mistreatment by its owners.

The suit, filed in New York State Supreme Court and read by The NYTPicker, alleges that the NYT published the Diner's Journal blog post "with actual knowledge that it was false or with reckless disregard as to its truth or falsity or with negligence."

The suit names the NYT Company as a defendant, along with Oliver Strand -- the NYT Dining section contributor formerly known as Oliver Schwaner-Albright, who wrote the offending post -- and several former employees of Gorilla Coffee.

The owners of Gorilla Coffee -- Darleen Scherer and Carol McLaughlin -- claim in the suit that they have "suffered shame, emotional distress and embarrassment and were exposed to contempt and ridicule" because of the post.

Here's what happened.

Last April, on the second day of a worker walkout at Gorilla Coffee, Strand weighed in with a blog post reporting in detail on the dispute. In it he repeated charges by Gorilla baristas of a “perpetually malicious, hostile, and demeaning work environment," and their demand for the removal of McLaughlin as co-owner.

In the post, Strand gave the co-owners a chance to defend themselves against the accusations. The two women described Gorilla Coffee to the reporter as a "mostly happy" place, but co-owner Scherer acknowledged that her colleague was "like a drill sergeant" in her training of baristas.

But it was the NYT's publication of the entire email message -- apparently sent to the NYT from seven Gorilla Coffee employees -- that inflamed the co-owners and has prompted the lawsuit against its signers, the reporter and the newspaper.

The employee email described the work environment of Gorilla Coffee as "not only unhealthy, but also, as our actions have clearly shown, unworkable."

The lawsuit alleges that the email was written with "express and implied malice and with design and intent to injure GORlLLA in its good name and reputation."

After the workers quit and the NYT published their allegations, Gorilla Coffee was forced to close for two weeks as the co-owners hired a new staff.

Ironically, most of the NYT's coverage of the dispute -- with the notable exception of Strand's post -- has focused on management's point of view, and seemed favorably disposed towards Scherer and McLaughlin.

Metro reporter Diane Cardwell filed two City Room posts on the re-opening of Gorilla Coffee, and followed up with a metro feature on April 27 that made no apparent effort to interview any of the former employees. Instead, Cardwell quoted the co-owners defending themselves, and local residents who seemed more or less happy to find their favorite coffee joint open again.

“Faults and all,” one resident told Cardwell, “this is a neighborhood institution.”

News of the Gorilla Coffee lawsuit was first reported yesterday afternoon on the Fucked in Park Slope blog. McLaughlin and Scherer have yet to respond to emails seeking comment on the suit. We've also contacted the NYT for comment.

Despite all the Gorilla Coffee press coverage, part of the lawsuit's basis is that neither Scherer or McLaughlin are public figures. The suit states that "plaintiffs are not public figures and are not involved in any public controversy in connection with their wholesale or retail coffee business," adding that "defendants' defamatory statements do not involve a matter of public concern."

Their status as public figures is relevant to the lawsuit, in large part because of a precedent-setting libel case against the NYT by an Alabama law-enforcement official named L.B. Sullivan. That 1960s case, in which the Supreme Court ruled in favor of the NYT, established that in a libel suits brought by a public figure, a plaintiff had to prove malicious intent.

The last libel suit against the NYT was filed in 2008 by Vicki Iseman, a Washington lobbyist whose friendship with Sen. John McCain became the focus of a story alleging a conflict of interest. The NYT settled that suit last year without paying Iseman any damages, or retracting the story.

31 comments:

Anonymous said...

How on EARTH did your headline not include the words "gorilla suit"?!?

Anonymous said...

Re: "Without . . . retracting the story":

If this isn't a retraction, it's as close to one as The Times gets (from Perez-Pena's article):

"From the Times coverage of the settlement: "On Thursday, the two sides released a joint statement saying: 'To resolve the lawsuit, Ms. Iseman has accepted The Times’s explanation, which will appear in a Note to Readers to be published in the newspaper on Feb. 20, that the article did not state, and The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain or an unethical relationship on behalf of her clients in breach of the public trust.' That statement was published on The Times’s Web site, as was a statement from Ms. Iseman’s lawyers."

Anonymous said...

A libel suit blows, but they'll manage to ride this one out.

lesdmd said...

So, after giving the owners of Gorilla Coffee the opportunity to comment, where some charges by disgruntled employees were confirmed, a blog article was published from 7 employees that the owners found offensive? Sounds like responsible reporting rather than libel to me.
As for anonymous'(3:32 PM) characterizing a clarification as being close to a retraction, the statement does nothing more than make clear that Ms. Iseman's actions were not a "breach of the public trust". As I recall the story, that was never the focus. It was all about McCain possibly engaging in an illicit affair.
It's good to know that in America, when one doesn't like the publicity (s)he has brought down upon him(her)self,(s)he can find an attorney to file a libel suit.

Anonymous said...

Re: "all about McCain possibly engaging in an illicit affair."
------
"The Times did not intend to conclude, that Ms. Iseman had engaged in a romantic affair with Senator McCain"

Sounds as if The Times was saying that was most explicitly not the intetion of the article.

ThePete said...

Hypothetically, say I want to get an employer in trouble for the unsafe working conditions that he/she makes me work under. I *want* to get my employer in trouble so that he/she will stop forcing me to work under said conditions, so I speak out in an op-ed or a blog post--however nothing I say is false. Is this still libel? According to the definition of libel, it seems like speaking the truth with malicious intent would be illegal. If true, doesn't that make it a sort of thoughtcrime?

Anonymous said...

Theoretically, as well as hypothetically, yes. But factors like conditions of employment enter into any given case:

Here is an excerpt from one discussion:

'Truth
In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libellous.[citation needed] Proving adverse public character statements to be true is often the best defense against a prosecution for libel or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm.

Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. From 'Other Defenses' (below), under the 'Opinion' section: "However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.[17]" To win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case.

Under English common law, proving the truth of the allegation was originally a valid defence only in civil libel cases. Criminal libel was construed as an offence against the public at large based on the tendency of the libel to provoke breach of peace, rather than being a crime based upon the actual defamation per se; its veracity was therefore considered irrelevant. Section VI of the Libel Act 1843 allowed the proven truth of the allegation to be used as a valid defence in criminal libel cases, but only if the defendant also demonstrated that publication was for the "Public Benefit".

Anonymous said...

How does small business protect itself from the press and keep hostility of the hostile at bay without resorting to adventure?

Not sure, but for sure, it is inadequate to expect of journalists to bear witness to their own conscience. It is a safer bet to conceive of them as thoughtless, impatient processors, set on a sadomasochist default.


Now, don't get uptight and tell this a commenter to get lost just cause it speaks in genital tongues, when instead it's only trying to provide defense to entrepreneurs in a hostile environment, knowing actually nothing whatsoever about the specifics of the case at hand.

swag said...

WTF was the NY Times doing getting embroiled in some provincial, small business affair to begin with?

Foolish even before the libel question.

Re: 'WTF was the NY Times doing getting embroiled in some provincial, small business affair to begin with?' said...

Nothing a little editing couldn't help. Note the (still unrepaired) misspelling of the name of the main target in the original article.

Anonymous said...

This post has been removed by the author.

Anonymous said...

This post has been restored by the author.

Anonymous said...

No, no -- I'm sorry, but it's been removed again.

Anonymous said...

Lots of ifs and we-thinks in this lawsuit but seemingly no direct challenge to the factual truth of NYT story - a good way to lose a lawsuit. And if "defendants' defamatory statements do not involve a matter of public concern," then they're likely not defamatory!

Anonymous said...

the associated press stylebook says truth is an absolute defense for libel in new york, but suggests that's not a universal defense, saying "the states are divided on whether and in what circumstances the private individual will have to prove falsity if the matter is not one of public concern" (352).

in libel cases concerning public officials, public figures or private figures involved in matters of public concern, there is a constitutional protection, though the burden of proof is different.

public officials and public figures must prove actual malice: that is, the defendant knew a statement was false or showed a reckless disregard for truth (that is, he "entertained serious doubts as to the truth" of a statement but still published it).

private figures involved in matters of public concern must prove negligence: that is, the defendant failed to check a story before publication.

in libel cases concerning private figures not involved in matters of public concern, there is no constitutional protection and state libel law governs the case.

if i'm not mistaken, the test of actual malice was applied only to public officials in the sullivan case and extended later to include public figures in curtis publishing co. v. butts.

for more information, check out chapters 14 and 17 of anthony lewis's very readable "make no law."

Eduard said...

"Sounds like responsible reporting rather than libel to me"
Exactly, this suit will go nowhere. Disgruntled business owner sues newspaper for reporting on a labor disagreement. Big snooooze....

Anonymous said...

Defamation, Libel and Slander Law
By Aaron Larson

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.

Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff. . . .

The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.

Another defense to defamation actions is "privilege". For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.

A defense recognized in most jurisdictions is "opinion". If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.

A defense similar to opinion is "fair comment on a matter of public interest". If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation. . . .

Under the First Amendment of the United States Constitution, as set forth by the U.S. Supreme Court in the 1964 Case, New York Times v Sullivan, where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". . .

The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world. As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved.

Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery.--expertlaw.com

Anonymous said...

so what's the significance of constitutional protection in libel? as i understand it, (besides establishing the standards of negligence and actual malice) this protection shifts the burden of proof from defendant to plaintiff.

here's what lewis says: "the old common law of libel, which was still the law in most states when gertz was decided in 1974, included no such [rule requiring defendants to prove negligence].

"if someone made a false statement damaging to reputation, he could be made to pay damages no matter how innocent the mistake had been.

"in superimposing a new federal requirement to prove that the mistake was negligent, the supreme court significantly extended the process it had started in times v. sullivan.

"now private individuals who brought libel suits would have to meet a first amendment test as well, albeit one of mere negligence rather than knowing or reckless falsehood.

"in a later case the court held that in a private libel suit the plaintiff also had the burden of proving falsity. the decision reversed the common-law rule, which made a libel defendant prove a challenged statement true" (195) [paragraphing added by me].

i'd also like to clarify what i said about libel cases concerning private figures involved in matters of public concern. there is a constitutional protection (as there is in cases concerning officials and public figures), but state libel law is also a consideration (as it is in cases concerning private figures not involved in matters of public concern).

in other words, it straddles federal and state law.

in cases concerning private figures not involved in matters of public concern, i'd imagine the burden of proof still rests with the defendant.

Anonymous said...

CORRECTED VERSION

so what's the significance of constitutional protection in libel? as i understand it, (besides establishing the standards of negligence and actual malice) this protection shifts the burden of proof from defendant to plaintiff.

here's what lewis says: "the old common law of libel, which was still the law in most states when gertz was decided in 1974, included no such [rule requiring plaintiffs to prove negligence].

"if someone made a false statement damaging to reputation, he could be made to pay damages no matter how innocent the mistake had been.

"in superimposing a new federal requirement to prove that the mistake was negligent, the supreme court significantly extended the process it had started in times v. sullivan.

"now private individuals who brought libel suits would have to meet a first amendment test as well, albeit one of mere negligence rather than knowing or reckless falsehood.

"in a later case the court held that in a private libel suit the plaintiff also had the burden of proving falsity. the decision reversed the common-law rule, which made a libel defendant prove a challenged statement true" (195) [paragraphing added by me].

i'd also like to clarify what i said about libel cases concerning private figures involved in matters of public concern. there is a constitutional protection (as there is in cases concerning officials and public figures), but state libel law is also a consideration (as it is in cases concerning private figures not involved in matters of public concern).

in other words, it straddles federal and state law.

in cases concerning private figures not involved in matters of public concern, i'd imagine the burden of proof still rests with the defendant.

Anonymous said...

just one more thing..

i think i might've misread the ap entry on truth. in retrospect, i think the issue there is not whether truth is a universal defense but whether the burden of proof rests with some plaintiffs who are private figures. my apologies.

"the states are divided on whether and in what circumstances the private individual will have to prove falsity if the matter is not one of public concern" (352).

Anonymous said...

OK, so a Times stringer reports on an amusing dust-up at a local coffee place, giving both sides of the story, and one party (the owners, and, of course it's the owners) sue for libel? Good God. I wasn't sure where I stood before on this little labor dispute, but now I know I really feel bad for the people who work at Gorilla Coffee.

I'll stop now before I get sued by these people.

Anonymous said...

Yeah, given how slanted toward the owners the coverage ultimately was, this kind of validates the Gorilla employees' complaints. I picture one or both of these women simmering, seething, their bile rising over the months as everyone else forgets and moves on and then: "I'll show that New York Times!!!" Maybe they're hoping they can settle and make up for the lost week's business. But I hope the judge humiliates them.

Anonymous said...

who knows how the courts will rule? but if i understand this right, then the significance of saying they're private figures not involved in a matter of public concern means there's a lower standard of proof for libel and the burden of proving the statements true lies with the defendants.

Anonymous said...

The matter is of public concern.

The defendants did not falsify what color undergarment the defamed wore, they wrongly and viciously attacked the training method and the atmosphere of a small private establishment that provides a local service.

The Journalist didn't exactly backtrack along a trail of tears to a wet island, he only capitalized on average anxiety and misunderstanding of the standards of high pressure work.

To be fair, it is not for the unwounded to weigh in on such an excessive legal issue, but it is valid to express concern publicly.

Anonymous said...

If I had to guess, I'd think neutral reportage covers the Times.

Anonymous said...

Neutral reportage apparently refers only to cases involving public figures or matters of public concern.

http://en.wikipedia.org/wiki/Neutral_reportage

Anonymous said...

Some on the uninformed outside, might infer from the facts forwarded here, that the reporter was either too lazy or too timorous or too vindictive to investigate the defamatory accusation before publication of a raw letter. Or, the reporter was so excited at showing what cool new friends he had that he was compelled to publish their private letter without delay.

In the time it took finally to provide neutral coverage of a private and unresolved business dispute, one side was apparently injured.

Repeating a potentially malicious charge by direct quotation from original source was a first instance of publication of the unproven offense.

At the time of publication, there was every reason to think that it was possible for a risk to materialize, such a risk includes the appearance of negligent conduct resulting in loss of press credential.

Anonymous said...

The blog format might stand out and be accepted as an exception to publishing standards. Generations of marooned trolls and chipper creeps have served to erode civilized behavior let alone journalistic tradition, in fact, the only user type who might find the New media platforms friendly is the belittling kind.

This case could set precedent.

Fortune favors lilies, mustard seeds and sparrows.

Anonymous said...

Umm, NY Times reprints Wikileaks documents and is still going strong, but Gorilla Coffee thinks they can sue them for reprinting the employee walk-out letter? Suuuuure...

Anonymous said...

Wow, out of 30 comments so many avoiding the legal substance of the matter at hand.

Those stranded in pitiful professional aspiration, or stuck on sleeping through the now and waiting for the (Notwithstanding) never, can learn from Strand's latest piece, posted at this cluttered link:

http://tmagazine.blogs.nytimes.com/2010/10/28/ristretto-aeropress/?src=twr

wherein he writes with his metaphorical phallus to idiopathic ill effect.

Others, might hold back and view how trespasser types senselessly fill up time and space just justifying their pathetic sub-mediocrity.

Or still, how skill and tools and devices of the pen are wasted in the disordered thinking that the mechanic is menacing to the judicious.

Anonymous said...

Carlos Slim Helu was born in Mexico City, Mexico. His father, Julián Slim Haddad, a Syriac-Maronite Christian, immigrated to Mexico in 1902 from Lebanon, alone at 14 years of age, speaking no Spanish. His mother was Mexican native woman. Why has this never been reported?