| SDNY Judge Engelmayer Told
Online Journalist To Get Counsel Now Zeroes In
On Tweet
By Matthew
Russell Lee, Patreon
BBC
- Guardian
UK - Honduras
- The
Source
SDNY COURTHOUSE,
Jan 26 – A man named in an SEC
investigation sued Dow Jones
and another online journalist
who reported about it.
On May 21 U.S.
District Court for the
Southern District of New York
Judge Paul A. Engelmayer heard
the case. He stayed discovery,
but he advised the online
journalist to "expedite her
efforts to secure
representation by counsel,"
while discouraging her from
pursuing sanctions in
connection with the seemingly
retaliatory or SLAPP suit.
Does this chill reporting?
Inner City
Press, once ordered to stop
tweeting from the back row of
Judge Engelmayer's courtroom
in a #6ix9ine related
proceeding which despite a
request was not live streamed
to the SDNY Press Room,
covered this proceeding.
A lawyer said without irony to
Judge Paul "Meme" Engelmayer,
I don't know how much you know
about Twitter.
Judge Engelemayer asked, Does
someone who republishes have a
safe harbor?
A lawyer replied,
Section 74 of the NY Civil
Rights Act - there is
privilege to report on
judicial proceedings... And a
headline is a fair reflection
of article.
Next, Judge Engelmayer asked
plaintiff's lawyer if his
client left his law firm
BEFORE the Barron's article.
The lawyer replied, I'm just
the second chair.
Judge Engelmayer admonished
him, This is the big leagues.
You have to be prepared. My
time is worth something. You
can't just make stuff
up.
The online
journalist said, I stand by
what I reported. But I have
something else to
say.
Judge Engelmayer cut her off,
Only if it's related to what I
asked. Who moved to change
venue from Florida to New
York?
Defendants did. "The case has
nothing to do with Florida.
Judge Smith transferred
it."
Judge Engelmayer
ruled, Citing venerable
pandemic exception, I will
stay discovery until I rule on
motions to dismiss.
Now on
January 26, this from Judge
Engelmayer: "pending are two
motions to dismiss: one by Dow
Jones and its reporter,
Alpert, Dkt. 43 (“Dow Jones
Mem.”), and the other by Buhl,
Dkt. 105 (“Buhl Mem.”). For
the following reasons, the
Court grants Dow Jones’s and
Alpert’s motions, and grants
in part and denies in part
Buhl’s motion...
"Buhl’s
March 27, 2019 tweet, however,
was of a different character.
Although the tweet links to
Buhl’s March 26 article, it
also flatly accuses Kesner of
breaking the law. The tweet
reads: “The illegal back room
deals and intimidation Hong
and attorney Harvey Kesner did
with Biozone (company A in SEC
lawsuit) were egregious and
the SEC sat back and watched
it happen.” This accusation of
criminal conduct is plausibly
pled as defamation per se. And
Buhl’s linked article of the
next day did not, on its face,
permit a finding that the fair
report privilege applies,
because the hyperlinks in the
article did not link to any
pleading accusing Kesner of
illegal conduct. The Court
therefore denies Buhl’s motion
to dismiss, limited to this
aspect of the March 27, 2019
tweet."
This case
is Kesner v. Barron's, Inc. et
al., 20-cv-3454
(Engelmayer).
***
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