Hiring Reputation Management Co. Made Rabbi Limited Public Figure, Making It Harder for Him to Win Libel Case

From Krawatsky v. Avrunin, decided Friday by Judge Christopher Fogleman (Md. Cir. Ct.):

From 2010 to 2015, Plaintiff Steven Krawatsky ("Rabbi K") was a head counselor at Camp Shoresh, a summer camp for children in Adamstown, Frederick County, Maryland. The parents of three boys who had attended the summer camp during that time have alleged that Rabbi K had sexually assaulted the boys. In 2017, Defendant Hannah Dreyfus …, a reporter for The Jewish Week, Inc. …, began investigating the allegations. As a result of Ms. Dreyfus's investigation, on January 17, 2018, Jewish Week published an editorial drafted by its Editor and two articles authored by Ms. Dreyfus.

Rabbi K sued Dreyfus and Jewish Week for various defamation-related claims; the court held, in relevant part, that Rabbi K was a limited purpose public figure, because he had voluntarily injected himself into an existing public controversy:

The record is clear that the allegations against Rabbi K did not concern only the boys and their families. The outcome of this controversy would certainly affect the general public or some segment of it in an appreciable way. The controversy concerned the safety of children. Moreover, it concerned broader policy questions about how Jewish institutions should best protect children upon learning of a sexual abuse allegation against one of its employees. The Court concludes that there was a particular public controversy [preexisting the allegedly defamatory statements' publication] that gave rise to the alleged defamation…. The Krawatskys hired the public relations consultant in November 2017 "to help restore the damage to Rabbi K's online reputation caused by the controversy." The articles and editorial were published two months later, on January 17, 2018. The controversy continued unabated following the public relations consultant's November 2017 retention, through the articles' and editorial's January 17, 2018 publication.

Using the media to gain notoriety and establish a positive public image can confer limited public figure status. It is beyond dispute that the professional reputation management consultant's objective was to influence and counter the adverse impact of the unfavorable publicity that attended the Newspaper Defendants' two Articles and Editorial. Rabbi K's public relations campaign did not substantively respond to the allegations but rather was a more generalized effort to improve his image. Its objective was not to reply to the allegations, but rather to silence the negative information. By waging this public relations campaign, Rabbi K became a public figure in terms of First Amendment protection.

Because Rabbi K was a limited-purpose public figure, he had to show "clear and convincing evidence that the Newspaper Defendants acted with actual malice" (rather than just negligently), and he couldn't.

Congratulations to Nathan E. Siegel, Chelsea T. Kelly & Robert D. Balin of Davis Wright Tremaine LLP, who represented the Newspaper Defendants, and thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

Comments

[KenveeB]

Wait, so trying to defend yourself against allegations just means that you become a public figure for the purpose of the next allegation? That doesn't seem right.

[Noscitur a sociis]

Rabbi K’s public relations campaign did not substantively respond to the allegations but rather was a more generalized effort to improve his image. Its objective was not to reply to the allegations, but rather to silence the negative information. By waging this public relations campaign, Rabbi K became a public figure in terms of First Amendment protection.

[KenveeB]

I read that before. Reposting it doesn't make the argument any better. Responding "I didn't molest that child" doesn't make you a child molester, but responding "I'm not a child molester!" does? That's absurd hair-splitting. Trying to improve his image was a direct response to the first allegations. It shouldn't make him a public figure because now he's "part of the conversation."

[gormadoc]

According to the decision "the professional reputation management consultant’s communications were patently and
admittedly unrelated to the subject matter..."

[Rossami]

Maybe they deserve congratulations for winning but I don't think they advanced the cause of justice. My reaction was the same as Kenvee's above. Merely attempting to counter a negative accusation is not and cannot be sufficient to make you a public figure. To argue otherwise is to say that you must remain utterly passive and defenseless in the court of public opinion in order to prevail in a libel case.

[Noscitur a sociis]

Communications made in fair self-defense are privileged. Shepherd v. Baer, 96 Md. 152, 53 A. 790, 791 (1902); see also Foretich v. Capital Cities/ABC, Inc., 37 F.3d 1541, 1558 (4th Cir. 1994) (“… [A] person who has been publicly accused of committing an act of serious sexual misconduct … cannot be deemed a ‘limited-purpose public figure’ merely because he or she makes reasonable public replies to those accusations.”). However, the privilege extends only to such communications as are fairly an answer to the attacks. Shepherd, 53 A. at 791; see also Foretich, 37 F.3d 1560 (“A supposed ‘reply’ is not truly a reply if it is ‘patently unrelated to the subject matter’ of the antecedent attack.”). Rabbi K cannot avail himself of the self-defense privilege because the professional reputation management consultant’s communications were patently and admittedly unrelated to the subject matter of the Newspaper Defendants’ publications

[Rossami]

Yes, that is what the court said. I find it unpersuasive.

[Noscitur a sociis]

Why? Do you think that the court is factually wrong, and that what Rabbi K did was, in fact, limited to countering the accusation? Or do you think that any media response after such an accusation is insufficient to make someone a public figure, even if it doesn't have any connection to the accusation itself?

[Rossami]

A reasonable question. I think the court is analyzing the problem the wrong way. But for the accusation, Rabbi K would not have begun working with the reputation management company. Rabbi K did not hire the reputation management company to raise his own profile or to inject himself into the public eye.

I further think that the court erred by assuming that the media response must be completely limited to countering a specific accusation. That sets too high a bar.

[Purple Martin]

Without any reference to the case in question, he was attempting to influence the public's general opinion of himself, in part by emphasizing his religious beliefs, standing, positions and activities. In other words...

I'm a freakin' RABBI, dammit! Look at all the good things I've done, all the great causes I've supported! My moral convictions are of such strength that it's impossible to believe I could do anything immoral! And anyone who says different is attacking Religion!

Problems is he's in the wrong court...that approach might get him a favorable 6-3 SCOTUS decision

[Social Justice is neither]

Do you seriously believe the accusation only did damage to his reputation in respect to ONLY the specifics of the accusation and in no other area of his life?

[Cal Cetín]

"Its objective was not to reply to the allegations, but rather to silence the negative information."

How did they go about trying to silence the negative reporting?

[ReaderY]

All the ways Professor Volokh has been reporting on. Get Google to delete it from searches ir lower its priority in search algorithms, for example.

[Cal Cetín]

Ah, yes. Well, in any case, it's a defensive move, and to cite this self-defense behavior to make him a public figure sound like short-skirt reasoning.

[ReaderY]

In all fairness, I don’t think this decision applies the standard correctly.

Unlike public relations companies, who are hired to increase the client’s notoriety with the public, reputation management companies are generally hired to try to avoid notoriety.

I think the opinion erred by treating the two as the same. It needed to look into the specifics of what the plaintiff was trying to do.

There may be a certain rough justice in treating people who hire companies that attempt to delete information about them and keep them out of the public eye as public figures. But if we apply the legal standard fairly, I don’t think this is at all the same as hiring companies that attempt to present the client’s side of the story as distinct from simply trying to make the other side dissappear.

[ReaderY]

That is, the purpose of hiring the reputation management conpany wasn’t to insert himself into public debate. It was specifically to keep him out of it.

[gormadoc]

It doesn't sound like that's true. They tried to put more information out there so that the information available would be, on balance, more positive of him.

“[The professional reputation
management consultant] tried to restore Rabbi K’s reputation by making positive information (unrelated to the controversy) more easily accessible to an internet user who searched for Rabbi K on Google.”

"Plaintiffs contend that Rabbi K’s retention of a professional reputation management consultant is insufficient to justify limited purpose public figure status because the content of his publications did not address the defamatory allegations, but rather related either to Rabbi K’s accomplishments or Jewish teachings."

[gormadoc]

Here are parts of their media campaign: https://rabbishmuelkrawatsky.blogspot.com/2017/11/rabbi-shmuel-krawatsky.html
https://knowem.com/rabbishmuelkrawatsky

[gormadoc]

Some more parts: https://www.pinterest.ca/rabbishmuelkrawatsky/
https://myspace.com/shmuelkrawatsky

Lots more social media pages for various companies that mention how accomplished he is and nothing about the allegations.

Man is the naive spam filter here annoying.

[gormadoc]

This page does respond to the allegations but I'm not sure if it's from the company he hired or just some supporter: https://www.facebook.com/The-truth-about-Rabbi-Shmuel-Krawatsky-929713830517837/

Then there's this, which seems to be from an uninvolved supporter: https://arighteousindignation.blogspot.com/

The person who ran that facebook page might be the same person, I don't care to check.

[David Ohsie]

I don’t believe that either of those are from the company he hired. The blog was written by a friend of his in the community who’s first name is the same as the initials of the blog title. It’s basically unsourced and false attacks the one of the three accusing families who happen to live in the same community as the blogger. It’s typical, especially in a religious community where the alleged abuse is a religious figure, for people to retaliate against the “snitches”.

[Voize of Reazon]

A no-win situation. If you try to balance the negative publicity with positive, you become a limited public figure. If you instead try to get the negative material removed then EV posts one of his "de-indexing" articles about you and, thanks to the reach of his readership, you become a limited public figure anyway.

[Stephen Lathrop]

Unlike public relations companies, who are hired to increase the client’s notoriety with the public, reputation management companies are generally hired to try to avoid notoriety.

That misunderstands the subtler (and likely predominant) uses of public relations. I knew someone who (briefly) worked at a public relations company a few decades ago, when the coal industry was riding high. Her first job was on an account for a coal mining company, which planned 5 years thereafter to open a strip mine which would devastate a small community, and might be blocked. The PR job was to flood local media, years in advance, with press releases on the importance of the coal industry to national security, the economic advantages it brought to local communities, the safety of its modern techniques, and most of all about the benign effects of recently-developed techniques to mitigate strip mining damage. Needless to say, the client company and its still-unrevealed plan was never mentioned. It was all to be presented (like most press-release promoted items) as news reporting, in this case about public-interest issues, not about specific plans.

The job did not last long. Just a few weeks into her new job, she found herself being interviewed by the FBI, curious to know what information she might have about the PR firm's efforts to wire-tap people in Congress. Of course she knew nothing, except that it was already past time to quit the new job.

More generally, that kind of behind-the-scenes use of PR is widespread, commonplace, and continuing. Probably it is practiced by every major corporation, and especially by those which fear controversy.

[ReaderY]

Not knowing the facts of this case, it is possible that I inferred too much from the phrase “silence the negative information” in Professor Volokh’s excerpt of the opinion, perhaps too much influenced by Professor Volokh’s previous posts about the doings of reputation management companies in getting informayion deleted from the internet or deindexed from internet searches. My assumption was that the reputation management company was attempting to get negative information deleted or hidden, as distinct from asserting information on Rabbi K’s behalf. I don’t know what services it actually provided.

[Bob from Ohio]

Shows the stupidity of the public figure and actual malice standards.

Was the article false or not? We used this standard from 1789 to 1963, it would not be the end of the press if we reverted to it.

[Commenter_XY]

Bob from Ohio...That was actually my question. Were these accusations false?

[David Ohsie]

[Friend of the family of one of the alleged victim's here, so take what I say in that context.]

IMO, there is nothing substantial to indicate that the alleged abuse against the three alleged victims did not occur. You can read the original article here: https://www.jta.org/2018/01/17/ny/did-baltimores-orthodox-community-turn-a-blind-eye-to-child-sexual-abuse.

From the opinion: "... Ms. Dreyfus thoroughly investigated the allegations. The facts simply do not support the [Plaintiffs'] contention that Ms. Dreyfus 'accept[ed], at face value, the facts of a story from a single participant without further investigation. ... The evidence shows that the Newspaper Defendants reasonably believed that the published statements were substantially correct, and nothing was presented to impeach their good faith."

[Social Justice is neither]

Right, so guilty until proven innocent and if you try to limit the damage then your burden just became higher.

[David Ohsie]

@Social Did you read the alleged defamatory article? There is no constitutional right to have a job with control over children. There are three different children who have accused him of sexual abuse where in two cases the Child Protective Services found him administratively responsible for the abuse ("indicated") with both of those later settled for "unsubstantiated" which is a middle position (maybe yes/maybe no) return for him giving up is right to appeal. The article accurately reported on all of that and the fact that the school kept him in his position while he was being investigated for sexual abuse the second time and after he was found administratively responsible (indicated) for the second time. All of this is publicly available information reported on by the paper. The school only fired him when these facts, already known to them, were revealed publicly in the article. He's also being sued by the families for the alleged abuse. Not someone that anyone thinks can be teaching which his why he is not (and the article interviews well known experts on this score).

[Cal Cetín]

I don't know which version of events is true, but this is certainly not the first defamation trial involving someone named Dreyfus.

[Cal Cetín]

Scrap Sullivan and replace it with loser pays. So if (hypothetically only) the plaintiff is guilty despite his denials, have him pay the legal costs of the defendants defending what the plaintiff knew was the truth. Vice versa if the defendant has maligned an innocent plaintiff, though here it would be negligence liability not Sullivan liability.

[ReaderY]

This opinion doesn’t depend on it, but I would point out that Maryland’s interpretation of the actual malice standard is purely subjective. A libel plaintiff has to prove the decendant believed what they were saying was false or entertained serious doubts about its truth.

It’s worth pointing out that this standard strongly discourages professional journalism. A well-advised, savvy company would do well to hire gullinle zealots who subjectively sincerely believe whatever comes into their heads (or whatever they are told) and take care to keep themselves far away from legally risky behavior like fact-checking that might cause subjective doubt to be cast on their subjective beliefs. As long as they keep to this safe harbor, they are incapable of acting with actual malice and hence immune from linel liability for n Maryland, regardless of how outrageously false what they say might appear to a person of ordinary intelligence and prudence.

Professional journalism, and any sort of fact-checking behavior or any concept of journalistic ethics, on the other hand, creates significant legal risk in Maryland. Fact-checking creates significant risks that one could be found to have acted with subjective intent. Similarly, entertaining any sort of critical thinking of any kind whatsoever creates risk of the sort of subjective stste of mind that could lead to a finding of actual minding.

Such risks are completely unnecessary, and the law-abiding media property would be well advised to steer clear of foolishly risky behavior like fact checking and critical thinking that could give rise to a finding of liability.

So long as the savvy, law-abiding media property takes care to remain absolutely free of such states of mind and behavior, and to hire only people it can reliably trust to be absolutely free of it as well, it is in a safe harbor, completely incapable of actual malice, and hence completely free of libel liability, no matter how outrageously false anything it says about public figures.

[David Ohsie]

I just want to point out the results of this case did not rely on such poor journalism. The judge found that the reporter did in fact "thoroughly investigat[e] the allegations ... The evidence shows that the Newspaper Defendants reasonably believed that the published statements were substantially correct, and nothing was presented to impeach their good faith."

[David Ohsie]

Sorry you actually had that disclaimer in your first sentence. I read too quickly.