Tonight is not a good night for Rachel Neuwirth. Like Casey at the bat, she took a mighty swing & like Casey she struck out.
She sued me for libel in Los Angeles Superior Court because I called her a “Kahanist swine.” Her claim was that this was the same as claiming she was a Jewish terrorist since Kahane Chai, Meir Kahane’s Israeli political party, is designated by the U.S. Treasury Department as a terrorist organization.
Her attorney, Charles Fonarow, told my attorneys that her case was a “slam dunk.” Seems Los Angeles Superior Court Judge John Reid had a different idea. It’s also important to note that Judge Reid is no activist liberal judge. He teaches law at Pepperdine University law school where Kenneth Starr is the dean. He’s a law and order conservative and he understood the principles of free blog speech that were involved in this case. He understood that calling someone a Kahanist swine, while not perhaps the most refined turn of phrase in the world, is permitted in the context of public discourse on an issue of great civic importance.
We won the case with an anti-SLAPP (Strategic Litigation Against Public Participation) motion under which the defendant must prove that his speech was made in a public arena and furthered a public good and that the plaintiff was a public figure. Rachel’s key argument was that she is a private figure (she argued that she was merely a real estate agent) and the my blog was a private forum (because I “controlled” it), all of which are patently false since she herself calls herself an “internationally respected journalist” in her online bio. That my blog is a public forum is also patently obvious as 250,000 unique visitors each year indicate. And I no more ‘control’ the 6,000 comments published on my blog than I control the entire web.
One of the beauties of the SLAPP motion is that the losing plaintiff must pay defendant’s reasonable court costs. This system was purposely designed to inhibit well-heeled individuals from bringing frivolous lawsuits against whistle blowers and other do-gooders. As the judge’s ruling states:
These lawsuits are generally brought to chill the valid exercise of constitutional rights. A SLAPP suit lacks merit and will achieve its objective if it depletes the defendant’s resources or energy because the aim is not to win but to detract the defendant from his or her objective. [An anti-SLAPP motion] is a procedural remedy to dispose of such suits expeditiously and thereby protect defendants’ free exercise of First Amendment rights on matters of public interest
So Rachel will have to dip into her savings to pay for our legal bills. I say “ours” since Rachel figured she’d kill two “kapo” birds with one stone by also including Joel Beinin in her suit. No doubt Joel is a figure who particularly irks her since he holds a distinguished academic position at Stanford University. Unfortunately, she struck out as her suit against Beinin failed as well.
The judge understood the important of protecting speech on an issue as critical and controversial as the Israeli-Palestinian conflict and agreed that Neuwirth was merely trying to stifle speech she disagreed with–rather than bringing a serious charge of libel.
He also raised an importance point which even I hadn’t considered in preparing my defense. Since truth is a defense in libel suits why didn’t she argue that the portion of my statement in which I called her a “Kahanist” was false? I think we could’ve made a good case against her if she’d raised this defense since her views, like Kahane’s, are so virulently anti-Arab. But she never even made the claim.
Another good point that he raised was that just as no reasonable reader would believe I was calling her a literal “swine,” so no reasonable reader would believe I was calling her a literal Kahanist “terrorist.”
Neuwirth’s claim against Joel Beinin involved a statement he made in the Alef discussion group informing members that she had made a death threat against him. She, along with Campus Watch, have claimed that this is a lie. Well, now I have the police report in front of me from the Stanford University Department of Public Safety reported (case IR 03 265 0181) on September 22, 2003. Beinin is so weary of this matter that he expressly asked me not to publish the report details here. But suffice it to say that 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.
Now, I want to address the hazirfleisch with the unlikely name of “Cinnamon Stillwell” at Campus Watch who called Beinin a liar. During the lawsuit I could not speak of this matter on advice of counsel. But now the world can see who lied and who told the truth.
My attorney tells me that Neuwirth appeared quite upset at the end of the hearing. Her attorney told Judge Reid that he planned to appeal his decision to the State Court of Appeals. They were apparently both upset that the ‘slam’ didn’t ‘dunk.’ But the fact that the judge wrote a ten-page, intensively-researched opinion shows that the judge attached considerable importance both to the case and to his decision. It’s hard to believe that a higher court would rule against Judge Reid in this matter unless he made a serious error. And the very fact of the length of the brief and the amount of effort he lavished on it argues against that possibility.
Though I do not wish for an appeal, I would welcome one for one reason only. The higher this case goes, if affirmed, the more important a precedent it becomes in California jurisprudence. Protecting the rights of those who debate the Israeli-Palestinian conflict is a matter worth fighting for and worthy of judicial affirmation.
Finally, I’d like to thank my pro bono legal team from Dewey & LeBoeuf. They are heroes to me. They took this on out of a commitment to protect First Amendment rights and with little prospect of financial remuneration. They believed in my right to speak out forcefully about the Israeli-Palestinian conflict.
Unfortunately, others have threatened me with similar lawsuits in the past and perhaps some will do so in future. I think we have taken a stand that such intimidation will be met with a firm defense of my First Amendment rights and those of all bloggers.