The Volokh Conspiracy

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Volokh Conspiracy

N.Y. judge: 'The Daily News shall remove plaintiff [Eric] Lerner's name and photograph from the Article' [UPDATE: Please note correction]


Last year, the New York Daily News published an article called "Conn. woman sues drug store in sexual harassment case" (which has since been slightly renamed). Eric Lerner, one of the bosses accused by the woman (Jessica Pelletier), then sued Pelletier for defamation, in a complaint filed last Tuesday. And the same day, he got an order, signed by Justice John Galasso, requiring (among other things) that,

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.

But that is clearly unconstitutional. First, the newspaper wasn't a party to the case, so it had no opportunity to be heard before the order was entered. [UPDATE: I erred on this point; my apologies, and thanks to commenter Lunglila for the correction and the pointer to the transcript of the hearing; though the Daily News isn't a named party, it was apparently notified of the hearing the day before the hearing, and the Daily News appeared in court to argue against the injunction. This does not, however, affect the analysis below.]

Second, even those state courts that allow injunctions against libels have recognized that such injunctions are permissible only "following a trial at which it is determined that the defendant defamed the plaintiff," and the injunctions must be limited to "prohibiting the defendant from repeating the statements determined to be defamatory." (See, e.g., Balboa Island Village Inn, Inc. v. Lemen (2007).) "The injunction, to be valid, must be limited to prohibiting [the adjudicated defamer] from repeating her defamatory statements." Here, there was no trial at which it was determined that the New York Daily News defamed Lerner—indeed, there was not even a trial at which it was determined that Pelletier defamed Lerner.

Third, even if Pelletier's allegations about Lerner were false, the Daily News has an absolute privilege under New York law to publish a "fair and true report of any judicial proceeding," which includes fair and true reports of the complaint; the judge said nothing to indicate that the Daily News article was anything but a fair and true report of the complaint that Pelletier filed in her lawsuit. [UPDATE: Having now reviewed the transcript, I can stress again that the judge made no findings that the story was in any way inaccurate.]

The Daily News has not removed Lerner's name from the story, but said it would immediately appeal the order; it also wrote this editorial:

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.

In a countersuit filed in March, Lerner claims the suit against him, brought by former employee Jessica Pelletier, is a defamatory pack of lies.

We don't know who's telling the truth. We would happily tell Lerner's side of the story—but in another insane decision, Galasso's order seems to seal the entire file in Lerner's suit, leaving it unclear what we can report about it.

Galasso has earned himself a coveted Daily News Knucklehead award. He cannot give it back, and we will never take this editorial down.

Oh, and our readers doubtless won't be surprised to learn that the order was also submitted to Google with a request that Google deindex not just the original article but also the Daily News follow-ups, including the follow-up story about the gag order and the editorial; the request also covered this version of the article, which appears to include Lerner's photo. (It's not clear whether the Daily News did indeed remove the photo in response to the order, or whether the photo appeared only in the print version of the article, as well as the version, and not the standard online version.) I expect that Google will ignore this request.