20 August 2015

Prince George and the Shame of the New York Courts

Prince William and the former Kate Middleton, (the Duke and Duchess of Cambridge, parents of 2 yr. old Prince George) recently made a public appeal to protect their son from the appalling and potentially dangerous conduct of paparazzi.   

In a public letter, the royals’ representative noted egregious interference with the child’s right to a “safe and happy’’ childhood. He cited instances of such outrageous paparazzi behavior as automobile pursuits, luring George into playing with planted kids, trespassing on private property to get closer to the child, and more. So William and Kate have now asked for the voluntary cooperation of three groups: i) the sleazy photographers, ii) the publishers of the sleazy magazines that bought the pictures from the sleazy photographers, and iii) the slice of the public who bought the magazines containing that crap. Lots of luck with the voluntary request, guys. I suspect this is step number one in a campaign that will end up in a British court.  And I hope the British judges have more sense and more courage than their New York analogs.

A little history:  I have earlier written about the case we tried on behalf of Jacqueline Onassis and her children, in which we secured an injunction against self-styled American paparazzo Ron Galella, who could have taught the British assholes a few tricks. There was no question his conduct was simply way beyond reason.

But those are facts.  The legal basis for an injunction against Galella is a separate question: Did Mrs. Onassis have any legal rights that overrode Galella’s claim that as a “photojournalist” he was privileged to engage in offensive conduct to take publishable photographs of a “public figure”? Though the case was tried in a federal court, the judges were obliged to abide by the law of New York State.. This they did, finding two stand-alone New York legal pillars to support the injunction: i) Galella had clearly violated the New York’s Penal Law by committing harassment,  and ii) the federal judges believed New York’s highest court would in this modern era (1972) recognize that its citizens enjoyed a right of privacy as part of the state’s common law, i.e., the feds predicted New York's Court of Appeals would join the majority of states and recognize as a “tort”, (a civil offense) the intrusion into one’s privacy by unreasonable means.  

But New York is the center of a vast  communications industry. Radio, television, major newspapers, magazines, books, etc, and all publishers, like all other industrialists, want to acquire as much immunity from liability as they can get. For the media, the recognition of a citizen’s right of privacy is anathema. The result: media lawyers deluge the legal environment with "free speech" tracts, while lobbyists attend and contribute to legislators, in an effective effort to get as much legal protection for their clients as they can, without regard to how much damage their clients inflict or how egregious is their clients' conduct. The influence on all branches of state government is pervasive.

The stunning reach of this power was learned the hard way by a citizen named Pamela Howell.  In 1988, she was a patient at Four Winds, a private psychiatric hospital in Westchester County. It is conceded that “It was imperative to her recovery that her hospitalization remain a secret to all but her immediate family.”

But into Pamela Howell's garden of respite and cure slithered a serpent wearing the skin of a photographer employed by, who else, The New York Post. This “photojournalist” trespassed upon the secluded hospital grounds and took a picture of Ms. Howell walking with another patient, Ms. Hedda Nussbaum.  The latter was an abused woman who had been at the center of a high profile criminal trial involving a physically abusive companion who murdered her young daughter.

Immediately upon learning of the photographer’s intrusion, the hospital medical director implored the Post not to publish the photo, repeating the admonition that revealing Ms. Howell’s presence in the psychiatric facility would impair her recovery.  Recall the fable of the scorpion who bit the frog who had agreed to carrying him across the river, thus threatening to drown them both? When the frog asked why he did it, the scorpion responded, "it’s my nature.” That's basically what the Post said when, the next day, it published Ms. Howell's photograph on the front page.

But this scorpion did not drown. It was rescued, indeed supported, by The New York Court of Appeals, which gave the Post's conduct its seal of approval by dismissing Ms. Howell’s claim. Despite what a substantial majority of other states have ruled, and despite the national reputation of our Court of Appeals as a jurisprudential leader, the Howell court ruled that New York citizens have no right of privacy!


The court said it was relying on a (pathetic) 1902  New York Court of Appeals decision (Roberson v Rochester) that, by a vote of 4-3, denied relief to a child whose photograph was used, without her consent, in a flour company’s advertisements. The nationwide ad campaign, with a photo of the beautiful young child under the slogan "Flour of the Family" caused the child to suffer serious emotional distress, she became a laughing stock, needed medical treatment, and clearly suffered great injury at the hands of the flour company, which not only rejected any claim for compensation, but continued the advertising campaign despite her complaints! The Roberson court’s opinion, wandering far afield from the finite claim of misappropriating plaintiff’s photograph for commercial purposes, reads like it was written by a seriously deranged Henny Penny. The court wrote that if New York citizens were granted a right of privacy then not only photographs, but words as well could lead to liability, and therefore "any comment on one’s looks, conduct, domestic relations, or habits’’, --any personal comments at all in newspapers or periodicals or even the mention of his name by neighbors  “whether the comment be favorable or not” would “result in a vast amount of [absurd] litigation.”  The Court even noted that, after all, the flour company used a pretty picture of the child! Good grief, where was the Four Winds facility when we needed it?

The State legislature was so offended by the Roberson decision, it passed a law providing relief for misappropriation of one’s name or picture for advertising purposes. Despite the rambling nature of the Roberson court opinion, the misappropriation claim was the only issue posited by the Roberson complaint, and that was the only issue the legislature addressed.

Later attempts to broaden the legislation were blocked by media lobbying.

As a result of our Court of Appeals stated reliance on the demented dicta of the ancient Roberson case, New Yorkers have no common law right of privacy, and because the Post did not use Ms. Howell's photograph as part of an advertising campaign, she had no rights in this matter at all, and her suit was tossed.

The result: Big win for the rights of trespassing reptiles and stinging scorpions, and big loss for the rights of humans,--at least the members of those groups who live in the Empire State.

Howzat, huh?  All hail Freedom of the Press!  And good luck, Georgie!

A bientot.

12 August 2015

The Donald and Me

Is Donald Trump really a bully?  Well, I've got a "war story" about him too.  Here it is:

Some years back, a lawyer friend came to see me with a tale that still makes me shudder.  He was the managing partner of a small, successful New York City law firm when he got a call from his bank advising they were freezing his firm's account because the bank had just learned that he and his partners were being sued in federal court for $105,000,000!  The claim was the firm had violated the federal statute that made it a crime to "participate in the conduct of an enterprise's affairs through a pattern of racketeering activity." Yup, the law partners were accused in a civil suit of being racketeers as defined by a federal statute enacted to reign in the mob: RICO, which stands for Racketeering Influenced Corrupt Organizations.

That brings new punch to "Honey, today I had a bad day at the office."

I immediately sprang into action. Our first step was brilliant: we procured a copy of the Complaint. (Hey, ya pay big bucks, ya get innovative ideas.)

What was this about?  My clients often defended the rights of tenants. In this case, they had been retained by the tenants of an apartment house on Central Park South when the tenants learned that a real estate company (Donald Trump was its principal so I will hereinafter refer to it as"Trump") was about to buy the building and perhaps demolish it. Indeed, Trump did buy the building and did apply to demolish it, whereupon my clients instituted a series of state court proceedings and complaints to administrative agencies in an effort to secure the tenants' rights to remain in their rented apartments. None of this was unprecedented lawyering. It was, then and now, a reasonably common pattern. Indeed, the complaint specifically alleged that the defendant lawyers had used similar "tactics" as their "modus operandi" in other proceedings on behalf of other tenant groups against other landlords.

But none of those other landlords accused the tenants' lawyers of violating the RICO statute by means of their zealous lawyering on behalf of their clients.

I will spare you a detailed list of the complaint's allegations. The gist of it was Trump's claim that the defendant-inspired court and administrative proceedings amounted to a RICO violation that entitled Trump to recover 105 million bucks and an injunction against the law firm.

The foundational allegation of the pleading shows just how far Trump was willing to go to whip his adversary by crippling the adversary's lawyers:  Forgive the repetition please, but pay attention because this is important: one of the elements absolutely necessary to impose liability under RICO is that the criminal prosecutor (or civil plaintiff) show that the defendants "participated in the conduct of [an] enterprise's affairs through a pattern of racketeering activity."

So, to impose liability, a plaintiff must specify a corrupt enterprise.  What was the key illegal "enterprise" here? It was, Trump alleged, the New York Courts and administrative agencies to which the tenants' lawyers directed their complaints!  Importantly, there was no allegation or even suggestion that anyone in the court system had been corrupted, or had done anything other than to receive and act upon the pleadings and petitions filed by my clients.

Federal judge Whitman Knapp summed it up neatly when he wrote that this case "presents the question of whether a defendant can violate RICO by participating as a mere litigant in a court system or before an administrative body."

We moved to dismiss the complaint. I always try to inject a bit of humor in court appearances, though it is often grim.  When it was my turn to argue,  I opened with, "Your Honor, I argue today with some trepidation, lest I later find that in urging my clients' cause before this tribunal I am guilty of participating in a RICO enterprise." I don't recall the judge chuckling, but he didn't hold me in contempt either.

Bottom line: The District Court's opinion included a detailed examination of each allegation in the lengthy complaint and found no RICO violation. None. Nada. He threw the case out, with prejudice. (That means it cannot be repleaded, amended, whatever. It is done, cooked.)

No surprises: Of course Trump appealed. Hey, it's only legal fees for him--more pressure on the little guy.  After briefing and argument, the Second Circuit Court Court of Appeals promptly issued a unanimous one word opinion: "Affirmed." Sweet.

The end?  Not quite. Now my turn at bat.  Yogi got it right,  and it wasn't over because I was not finished. I had moved, under a federal court rule, to sanction Trump for prosecuting a frivolous lawsuit.  Bottom line, I don't know how much Mr. Trump paid his lawyers for this lawsuit, but he ended up paying my clients' legal bills too.

Hmm...is there a lesson here that informs the current national political discussion? Would President Trump play hardball with the Iranians, Chinese, etc?  WWTDD? (Bumper-sticker-speak for "What Would The Donald Do?)  What if, like I and my clients, those nations did not buckle before the bully and not only held their ground but fought back?

A bientot.