They’re starting off with some clerical issues, sorting out whose memos respond to what, and etc. Nothing interesting yet…
Judge says she only read one of the two briefs by Levy, because she thought they were duplicates…
“I don’t have any duplication of the allegedly defamatory statements…”
Fire alarm interrupts proceedings for about 40 minutes.
Levy and Rosenthal (representing Orthomom) inform me during the break that as we closed, the judge had said that she would only read Levy’s reply to Feder (representing Greenbaum) in relation to the motion to intervene (basically saying that she intended to include it in her decision, even if in a roundabout fashion).
As we closed, the judge was pressing Feder to decide which statements he is saying are the defamatory ones on which she will decide, and he hadn’t yet specified when the fire alarm went off. We’re about to get started back up…
And we’re back…
Counsel is seated, and presumably we’ll have some dialogue soon.
Judge: “When I called counsel up earlier this morning to make sure the papers were in order and that I had all the filings, I also asked Mr. Feder whether the statements set forth in paragraph 37 of his affirmation in opposition to the motion for leave to intervene constitute all of the statements whether made by the operator of the blog or the commentators that the petitioner alleges are defamatory, so let’s begin Mr. Feder with your answer to that question.”
Feder: “Yes, your honor.”
So, Feder is going to rely for his case solely on statements Orthomom made subsequent to his filing suit.
Levy is making the case that Orthomom can intervene. Feder gets up to assert that his problem is that the intervenor didn’t obtain permission to proceed anonymously, mentions a recent case in this courthouse that had an anonymous application tossed. He says that Orthomom is not “an entity.”
Judge: “Are you alleging that the comments that are defamatory come not only from the operator of the blog known as Orthomom, but also from the commentators?”
Levy: “The issue in the main motion is whether Orthomom may maintain her anonymity…Orthomom is a real person [just with anonymity]…Generally, our experience in litigating cases like this in courts around the country is [that if the plaintiff wins then anonymity is revealed].”
Judge confirms with Levy that he has proof of representation that he could provide in camera, and Levy affirms he has it, but that he doesn’t have it with him right now.
Judge then asks how Levy can purport to represent commenters. Levy says she’s basically offering a service to those who made comments on her blog, as Google perhaps would do if it had the opportunity to represent the millions of bloggers in its constituency (relying on various precedents he mentioned in his response, specifically NAACP. He also says that a claim in Feder’s own brief makes this case, in suggesting that it’s Google’s responsibility to represent Orthomom). He further says that Orthomom tried to provide notice to commenters so that they could contact Levy, but given her Orthodoxy and readers’ Orthodoxy and the inability to post on Passover, that posting was only made late by Orthomom and commenters only saw it late.
Feder: “It’s not correct what counsel has stated, that Orthomom cannot post on Passover,” and cites postings by her on Passover.
Apparently, no one at the bar is familiar with chol hamoed.
Feder is going through the Google user agreement to explain his argument for no expectation of privacy.
Google’s lawyer replies that Google will comply with any court order, but only a court order.
Judge: “The court is going to grant leave to intervene to the blogger Orthomom,” so long as Levy provides proof of representation in camera, “which will be sealed, and may be produced under seal pending the termination of the underlying proceeding.”
10 minutes for each side to argue.
Feder: “My client is Pamela Greenbaum, she is sitting in the back of this courtroom, she is a mother…”
Judge: “She is an elected official, is she not?”
Feder: “She is elected, but she’s not an elected official, a politician… I don’t know who Orthomom is…Orthomom maligned Ms. Greenbaum for a number of years…until a posting, ‘way to make it clear you have no interest in representing the private school community in any fashion.’…Orthomom proposed funding for programs that are illegal, that are only for yeshiva students…”
Feder then reviews the anonymous comments.
Judge: “Mr. Feder, you have stated in your papers that the term ‘bigot’ refers to anti-Semitic bigotry. You are basing that statement on the context in which the statements were made, rather than the actual use of the word ‘anti-Semite’ to refer to Ms. Greenbaum, is that correct?”
Judge: “So, there is nothing in the comments that refers to Ms. Greenbaum as an anti-Semite?”
Judge: And nothing in the comments…
Judge: Aside from the comments, asks what is libelous in the actual posts.
Feder: Refers to Ariel Sharon vs. Time Magazine, saying that in the context, ‘bigot’ means anti-Semitic.
Judge: Are you saying opinion would be actionable under New York law?
Feder: No, but it’s “a mixture of fact and opinion.” Further, “we don’t feel we have to prove a case,” but just that “we have enough to continue to proceed to get the information that we need in order to properly frame our complaint.” Because “it’s possible that Orthomom signed in anonymously and left these comments.” Further, in subsequent posts…
Judge: “I’m sorry” was only going to consider other statements.
Feder: Reviews Orthomom’s claim that Greenbaum lied under oath. Referring to Ariel Sharon, which says that the claim of lying under oath by a public official can be defamatory. Orthomom is “accusing Ms. Greenabum of lying under oath.”
Judge: Are you asserting that you won’t have to prove actual malice?
Feder: “We don’t have to prove it…actual malice can be drawn from the statements themselves.”
Judge: “I’m asking you is there or is there not a requirement.”
Feder: Pauses. “There is a requirement, but malice can be shown from the words themselves.”
Judge: How does bigotry become equivalent to anti-Semitism.
Feder: Because that’s the only thing they could mean.
Judge: Asks how we get from Orthomom making claims Greenbaum has “no interest in representing the private school community” to anti-Semitism?
Feder: “Because…it’s only against the yeshiva students that Orthomom is saying Greenabum is against.”
Judge: And you’re inferring that actual malice can be inferred from those posts?
Feder: In regard to ‘bigot,’ yes. She had the opportunity to remove those comments, and she didn’t.
On to Levy.
Levy: Reading a text too fast for me to keep up, but basically a restatement of his previous briefs. Basically, Greenbaum’s not proven any defamatory statements on Orthomom’s part.
Levy on the perjury claim: Greenbaum alleges she’s being accused of perjury. “It’s a clever argument,” but “even an allegation of criminal conduct…if it’s clear to the reader that this is just a surmise,” then it’s “not a basis for…discovery.”
Levy on identifying commenters: “Calling someone a bigot is a claim that courts consistently treat as opinion.”
Levy slides through his whole statement without the judge questioning a single point.
Feder’s reply: “Levy’s saying proof is a defense, it’s not… This has affected her in her day-to-day living… the Supreme Court does not allow for libel… just because Orthomom is anonymous, it doesn’t give her the right to malign my client.”
Judge: “The court is reserving decision on the petition…I will not accept any supplemental submissions.” And judge also orders Levy to produce proof of representation, and in a sealed envelope Orthomom’s identity, in camera.