Court Orders Removal of Libelous Blog Posts About Former DHS Secretary Nominee Bernard Kerik

An interesting analysis, handed down last month

From Magistrate Judge Stewart Aaron's report and recommendation in DAddio v. Kerik (S.D.N.Y. Sept. 6, 2019):

On May 14, 2019, District Judge Koeltl entered an Order granting judgment on default in favor of Defendant/Counterclaim Plaintiff Bernard B. Kerik … against Plaintiff/Counterclaim Defendant Dara L. DAddio … on Kerik's claims for defamation, intentional infliction of emotional distress and intentional interference with prospective economic advantage. Judge Koeltl then referred the case to me for an inquest on damages and any other appropriate relief. For the reasons set forth below, I recommend that the Court enter an injunction requiring DAddio to remove two blog posts identified in Kerik's counterclaims, but that the Court award no damages.

On July 15, 2015, DAddio filed this action seeking a declaratory judgment and damages related to her alleged co-authorship of the book From Jailer to Jailed: My Journey from Correction and Police Commissioner to Inmate #84888-054, for which Kerik holds the copyright as the sole author. {The Court refers to the Report and Recommendation filed on April 25, 2019 for the complete background of this action.} …

On December 20, 2015, Kerik filed an Answer and Counterclaim against DAddio and her twin sister, Donna DAddio, bringing claims for defamation, intentional infliction of emotional distress and intentional interference with prospective economic advantage. Kerik alleged that the DAddio sisters engaged in a "personal terror campaign" in which they "publicly targeted, stalked, threatened, and harassed [Kerik], his family, business associates and friends (including his two young daughters), through the use of dozens of anonymous social media and Internet accounts, that [were] used for the sole purpose of alarming, frightening, and harming Mr. Kerik personally, professionally and financially." Kerik sought compensatory damages, punitive damages, an award of costs and disbursements and a permanent injunction restraining DAddio from further publishing any communication between her and Kerik and restraining DAddio from any and all communication with Kerik and any members of his family, business associates, or company.

On November 26, 2018, Kerik filed a motion for a default judgment. As part of his motion, Kerik's attorney referred to two blogs entitled "Doing Time with Bernie" and "Parlatore is a Payne" that DAddio created "with thousands of posts attacking Mr. Kerik" that were still active. Kerik asserted that "an injunction by this Court will assist Google in removing them." …

Kerik seeks "[a] permanent injunction restraining the Plaintiff from further publishing any and all communication between the Plaintiff and Defendant, in written, typed or emailed format; and restraining the Plaintiff from any and all direct, indirect or third party communication with the Defendant, or any members of his family, business associates, or company[.]" However, in his motion for default judgment, Kerik also appears to seek an injunction aimed at removing all blog posts from two blogs entitled "Doing Time with Bernie" and "Parlatore is a Payne." …

In the defamation context, "courts have long held that equity will not enjoin a libel." "Indeed, for [more than] a century the Second Circuit has subscribed to the majority view that, absent extraordinary circumstances, injunctions should not ordinarily issue in defamation cases." Moreover, when the relief sought takes the form of a prior restraint on expression, there is a "'a heavy presumption' against its constitutional validity." …

In light of these principles, the court recommends that Kerik's request for a permanent injunction limiting future communication be denied. However, the same concerns do not apply to the blog posts that DAddio previously has posted…. The counterclaims contain specific allegations with respect to two blog posts from the blog "Doing Time with Bernie" from April and October 2015. Thus, I recommend that the Court grant Kerik's request for injunctive relief requiring DAddio to remove these two blog posts, which are specifically identified in Paragraphs 24(i) and 24(k) of his Counterclaim.

On Oct. 1, Judge John G. Koeltl adopted the Magistrate Judge's analysis, and added:

The distinction drawn in the Report and Recommendation between impermissible prior restraints and permissible limited injunctions to remove already published, defamatory or otherwise unlawful publications is well founded. See, e.g., Rose v. Levine, 830 N.Y.S.2d 732, 734 (App. Div. 2007) (approving an injunction insofar as it would remove existing websites and disapproving the injunction insofar as it would enjoin future publications); Doe v. Roe, 345 N.Y.S.2d 560, 561-62 (App. Div. 1973) (upholding an injunction by a patient against her psychotherapist to prevent the further distribution of an already published book), aff'd 33 N.Y.2d 902, cert. dismissed as improvidently granted 420 U.S. 307 (1975). Although the Court of Appeals for the Second Circuit has held "that, absent extraordinary circumstances, injunctions should not ordinarily issue in defamation cases," Metro. Opera Ass'n, Inc. v. Local 100, Hotel Employees & Rest. Employees Int'l Union, 239 F.3d 172, 177 (2d Cir. 2001), narrow injunctions that apply to unprotected speech, such as defamation, may issue. See Ferri v. Berkowitz, 561 F. App'x 64, 65 n.2 (2d Cir. 2014). The injunction in this case is narrow and aimed at unprotected, already-published defamatory speech. For the reasons set out in the Report and Recommendation, the injunction is appropriate.

For my thinking on the First Amendment and injunctions against libel, see this forthcoming University of Pennsylvania Law Review article. My specific procedural proposal is complicated, but in general I agree that courts should be able to issue permanent injunctions ordering people to remove (and not to repost) material that has been finally adjudicated to be libelous. And this is so even though an injunction, unlike a damages remedy, actually criminalizes speech, by making it subject to criminal punishment for contempt of court.

Here's the Magistrate Judge's reasoning for not awarding damages (which the District Judge accepted):

"Although a default judgment entered on well-pleaded allegations in a complaint establishes a defendant's liability, it does not reach the issue of damages." "A plaintiff must therefore substantiate [his] claim with evidence to prove the extent of damages." "A plaintiff bears the burden to introduce sufficient evidence to establish the amount of damages with reasonable certainty." "Although a plaintiff is entitled to all reasonable inferences in its favor based upon the evidence submitted, if a plaintiff fails to demonstrate its damages to a reasonable certainty, then the court should decline to award any damages, even where liability has been established through default."

Here, Kerik has not introduced any damages evidence in response to two Court Orders and the Court is unable to establish the amount of damages with reasonable certainty. Thus, I recommend that no damages be awarded to Kerik on his counterclaims.