Tikun Olam-תקון עולם: Make the World a Better Place

Seattle’s Jewish paper has written a long story about my legal battle with Rachel Neuwirth. The nice thing about the article is that it gives Neuwirth’s attorney all the rope he wants to hang himself and his client. I don’t know about you but I’m not used to hearing lawyers use four letter words in defending their clients:

“She never threw any mud at him, she was never responsible for things that he wanted to blame on her, and she so testified and he couldn’t prove to the contrary,” said Charles L. Fonarow, Neuwirth’s attorney. “The only thing she ever did was try and talk to the guy, and for that he just let loose all his shit.”

Not quite sure what he’s referring to here. Neuwirth did call the house one Sunday morning at 7:30 AM waking my wife and asking for me. I didn’t speak to her and wrote in my blog that I never wanted to hear from her again and haven’t. She used to post insulting comments at this blog using pseudonyms but doesn’t do that anymore either. So not sure what he means by “trying to talk to the guy” unless hurling insults is considering trying to talk to me.

In further remarks, Fonarow really exposes the weakness of Neuwirth’s case:

“Even though Rabbi Seidler-Feller, as a result of the settlement, admitted full responsibility and that she didn’t provoke the attack at all, Silverstein nevertheless calls her a liar and says that he doesn’t believe what Seidler-Feller has admitted,” Fonarow said. Silverstein’s original comments “may be a tad short of defaming her, but not much, and then he goes on to start committing the acts, which were clearly defamatory, for which we sued.

“A Kahanist is a terrorist, and however you slice it, it’s a defamatory remark.”

First, it should be noted that I never called Neuwirth a liar in this context. I merely said that given the facts as Seidler Feller and other witnesses stated them just after the incident; and her version of the event, I chose not to believe her version and to believe another. The problem with Fonarow and with so many right-wing ideologues is that they create huge ellipses in the arguments of their opponents in which they leap from a fact to an interpretation of the fact which has no relation to the original fact. So because I choose not to believe her I’ve called her a liar. Precision has never been a hallmark of partisan ideologues anywhere.

But the money quote here is the last line. Of course a Kahanist is not necessarily a terrorist. There are Kahanists like Baruch Goldberg, Irv Rubin and Meir Kahane himself who were terrorists. There are Kahanists who are not terrorists. Calling someone a Kahanist may mean calling them a racist, but it doesn’t mean calling them someone who personally commits acts of violence, which is what a terrorist is. This is where Neuwirth’s case collapses.

Fonarow repeats the Neuwirth-Campus Watch claim that Joel Beinin lied when claimed she made a death threat against him:

Fonarow said any allegation that Neuwirth’s message was a death threat was a lie.

“She leaves him a message that in effect, said, in the same tone, you can’t be saying [anti-Israel statements] because the Jews have to be vigilant at all times,” Fonarow said. “Look what they did to David [sic] Pearl, and look what Hitler did, and he takes that as a death threat, which is preposterous.”

Somebody oughta tell Mr. Fonarow that he was referring to Daniel Pearl, not David. But hey, what’s a little inaccuracy among friends?

About that death threat, here’s what I’ve written earlier on this:

Neuwirth DID call him a kapo and other vulgar demeaning terms. She likened him to Daniel Pearl and said that Beinin might meet the same fate as a traitor to his people. She noted that Hitler took care of those who were traitors first (not sure what this means exactly). Beinin felt so disturbed by the content of her calls that he called the police. The report quotes verbatim from her calls and documents the threat.

Again, I’ll let my readers be the judge: death threat or not? I wish I could post the police report here and quote from it verbatim. But I’ve been asked not to do so and I won’t.

Fonarow based his entire case on the claim that because Rachel Neuwirth is a private party and not a public figure, he didn’t have to show actual malice on my part to prove libel. Since the judge threw out the “private party” claim, then Fonarow would’ve actually had to prove in his filing that I DID show malice. But he didn’t even make such a claim. And in an appeal he can’t change his argument, since the appeals court only judges the evidence and arguments of the original case—though he tries to in the following passage:

Fonarow took issue with Judge Reid’s assertations and suggested that a “trier of fact” would find actual malice in Silverstein’s postings.

“She’s a private person,” he said. “She makes her money selling real estate even though she likes to write a lot of articles because she’s so pro-Jewish…. The only area you can say [falls] under the statute is that she was trying to try to talk to [Silverstein] about a matter that I guess could be considered by the courts to be a subject of public debate.

“As far as I’m concerned there was actual malice,” he added. “If you look at all the other things that he said, in blog after blog after blog, there’s evidence of actual malice even though the trial judge dismissed it as falling short.”

Astonishingly, Neuwirth chose not to talk to Joel Magalnick. That’s gotta be a first. I suppose she thought it possible that my local paper might write less than flatteringly about her. She probably made the right decision, though I would’ve enjoyed hearing more from her.

Magalnick also interviewed the Electronic Frontier Foundation’s senior attorney, who wrote approvingly of Judge Reid’s decision to toss the case:

But Fred von Lohman, an attorney with the Electronic Frontier Foundation, which champions free speech in the digital arena, said this case was precisely why California adopted the SLAPP statute.

“By publishing this on a blog, [Silverstein] was engaging in precisely the kind of protected speech the California SLAPP statute was written to protect,” von Lohman said. “This is really the tip of a much larger iceberg, because as more and more political speech and commentary goes online, it’s inevitable that there will be more need to clarify that the First Amendment protection applies to bloggers just like they apply to traditional pamphleteers.”

On appeal, added von Lohman, if Neuwirth’s case fails again, it will set precedent in California that other courts will need to pay attention to…

“There are lots of things about this case that are pretty standard about First Amendment law,” he said. “The thing that is different is that we don’t have the standard applied to blogs.”

We have high hopes that EFF will join in our appeal (that is, if Neuwirth is foolish enough to file which we have every reason to believe she will).