A Long Island judge is swiftly making a (terrible) name for himself with a (terrible) ruling in a defamation lawsuit. The ruling making Acting Supreme Court Justice John Galasso look like an unconstitutional idiot has nearly nothing to do with the defamation claims, but rather his granting of the plaintiff's unconstitutional wish to have unflattering "memories" of himself pre-erased before the underlying lawsuit even gets going.
Here's a bit of background: Jessica Pelletier, an employee at a medical marijuana company, Tikun Olam, sued her co-worker Eric Lerner, as well as her supervisor, for sexual harassment and retaliation.
Pelletier, 23, of Rocky Hill, Conn., charged she was demoted and then fired after complaining to her bosses about alleged raunchy treatment from her colleagues.
Her suit charged she was sexually harassed, taunted about her fight with breast cancer — and ridiculed for her Catholic faith.
She was let go after 20 months with the company. According to her lawsuit, Tikun Olam management charged that she had “an attitude” by reacting badly to the inappropriate comments of her bosses.
The New York Daily News ran an article about the lawsuit, naming everyone involved, including Eric Lerner. This is something newspapers do, especially when the lawsuit covers public interest subjects like workplace harassment. This is something newspapers have every right to do, as filed lawsuits are public records and any coverage of filed suits is very definitely covered by the First Amendment.
Eric Lerner filed a countersuit against Pelletier roughly six months after she filed her harassment suit. Lerner's suit alleges Pelletier has defamed him with false claims, both in and out of court. (How some of those claims will manage to survive a motion to dismiss is unknown, considering statements made in courtroom filings are generally impervious to libel litigation. Statements made in court documents are almost aways given absolute immunity from civil actions.)
Before the defamation suit even got going, Lerner asked the court to grant him a restraining order against Pelletier to prevent her from distributing the Daily News article Eric Lerner is so concerned about. This is already an unconstitutional request, but it gets worse. He also requested his name and picture be removed from the New York Daily News' article about the harassment lawsuit.
Unbelievably, both of these have been granted by Judge Galasso. The Daily News wasn't a party to the defamation lawsuit, nor was it asked to make an appearance to defend its interests. It was informed the day before the injunction hearing, however, and its representative argued (to no avail) that the requested order was prior restraint -- something that's blatantly unconstitutional. Here's the pertinent part of the order, which instructs the Daily News to alter an article based on obtained court documents -- in other words, completely factual:
pending the hearing and determination of this motion [which is to be decided May 16] … the Daily News shall remove plaintiff Lerner’s name and photograph from the Article and its associated keywords and Facebook posts.
The Daily News argued several things, all of which were heard, but ignored, by Judge Galasso. First off, its legal rep points out the article in question is six months old, which makes Lerner's demand for an immediate injunction illogical. From the hearing transcript [PDF] (which also contains the granted injuction):
Another important detail to note is that this article was published on October 7, 2016, nearly six months or more than six months ago. The Daily News is therefore perplexed as to why this extraordinary relief and Order to Show Cause has been brought because it's not apparent how there could be the kind of immediate and irreparable harm that would warrant preliminary injunctive relief for defendant -- for plaintiff. Plaintiff in this case has been aware of the article for six months.
We find it difficult to believe that Mr. Learner [sic] will be able to make a cognizable showing of irreparable harm given that he's waited six months to bring these proceedings [rather than] when the article was first published if the harm was really so immediate and irreparable…
Judge Galasso's answers to all the Daily News' legitimate First Amendment assertions is "because the internet."
The issue here too is that the internet has changed dissemination of information. It's always there. If people want to check somebody, it comes up all the time. Prior, a newspaper article is printed, that was the end of it. You had to go to a library or try to research it to try and get that out.
And this unbelievable word salad where Galasso gets going about the internet, harassment, the First Amendment, and what he believes America is --- and it apparently isn't searchable online newspaper articles:
Even on other aspects, Facebook, something gets published on Facebook or Twitter and something like that, even if it's false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don't want chaos either.
This incomprehensible statement allows Galasso to grant the order to silence part of the "chaotic" internet while simultaneously allowing him to wash his hands of it. It's up to the appeals court now -- no longer his problem. But the order remains in place. Not that it matters to the Daily News, which released this editorial in response:
A judge on Long Island has ordered the Daily News to remove the name of a defendant in a civil lawsuit from our website.
Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school.
The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner.
Maybe Galasso would have been better staying in his lane, as Scott Greenfield points out:
Lack of familiarity with the First Amendment is one thing. But jurisdiction? The Daily News wasn’t subject to his jurisdiction. While some judges seem to have a general impression that their powers extend wherever they want them to extend, they have certain fairly obvious limits. Foremost among them is they can’t issue orders requiring non-parties to do anything. Not good things. Not bad things. Nothing. They are not within the ambit of their jurisdiction just because the judge says so.
Not only did Galasso order a non-party to do something unconstitutional, but he did so before any of the facts were in. Lerner's defamation accusations have not been proven. In fact, nothing has been discussed thus far but how to censor a newspaper's article about Lerner being named as a defendant in public court documents.
Galasso overstepped here, not just in terms of the Constitution, but in terms of jurisdiction. Unfortunately, the overreach that resulted in the stupid granting of an unconstitutional request may also limit the Daily News' options when it comes to appealing the order.
The flip side of a judge issuing an order to a non-party to do something is that they’re a non-party when they want to challenge the judge’s order. The News would first need standing to intervene, which means they would have to obtain the court’s approval for sticking their nose into somebody else’s litigation.
But the judge ordered them to do something, so how could that be possible? Darn good question, and that’s the sort of questions that arise when a judge does something beyond his authority, outside the law and for which there are no procedures.
The only thing guaranteed is that when all's said and done -- no matter how Lerner's defamation case turns out -- this is all that will be remembered about it: a defendant with a countersuit and the unconstitutional dream of living an untroubled internet existence until vindicated (possibly twice!) in court.
For Judge Galasso, it's much, much worse:
Eric Lerner doesn’t like his name associated with this sordid story of a 23-year-old woman claiming sexual harassment? Who would? Win the case and the problem is solved, but the one thing you can’t accomplish is forcing a newspaper to remove your name because, hey, it’s unpleasant.
The Daily News isn’t going to do it. If anything, this will Streisand Lerner’s name across the internet. And Justice John Galasso’s too, which is going to make it really hard when he has to get a new job after everyone knows how badly he sucked at his current one.
Galasso's order -- and his "this is all up to other people except for the part where I granted the injunction" flailing -- is the judicial equivalent of leaving a flaming bag of feces on the Appeals Court's front door step. All it can hope to do is extinguish it without having to scrape too much off of its shoes.