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Court Orders New York State to Pay Brooklyn Woman $125,000 for Using Her Photo in HIV Discrimination Ad Campaign

Posted on: December 14th, 2018 by Art Leonard No Comments

New York Court of Claims Judge Thomas H. Scuccimarra has decided that the State of New York should pay Avril Nolan $125,000 for using her photo in an HIV Discrimination Advertising Campaign without a disclaimer that the person in the picture was a “model.” The November 8 ruling came after the Appellate Division court in Brooklyn ruled last January that the use of the photo in print and on-line advertisements, in which the statement “I AM POSITIVE (+)” appeared next to the photo, was defamatory as a matter of law, and sent the case back to the Court of Claims for a determination of damages. Ms. Nolan is not HIV-positive.

The case is Nolan v. State of New York, 2018 N.Y. Misc. LEXIS 5887, 2018 N.Y. Slip Op 51789(U) (Ct. Claims, Nov. 8, 2018).

According to Judge Scuccimarra’s opinion, “Jena Cumbo, the photographer, had taken the photograph as part of a ‘street-style’ photography piece for Soma magazine, briefly profiling those photographed about their musical interests.” Cumbo did not have Nolan sign a release and, without asking her permission, sold the photograph to Getty Images, a company that compiles and sells stock photos for use in publications, advertisements, and so forth.

The State Division of Human Rights, which enforces the New York Human Rights Law’s ban on discrimination, was planning an advertising campaign to educate the public that it is illegal to discriminate against people because they are living with HIV. Instead of finding people living with HIV who might be willing to be photographed for such advertising, the DHR contacted Getty Images and bought the right to use Nolan’s photograph. Getty mistakenly represented to SDHR that Nolan had signed a general release for use of her photograph.

The Court of Claims hearing about damages to be awarded to Nolan focused on how she heard about the advertisement, her subsequent contacts with AM New York, which ran the ad, and the DHR, and the impact its publication had on her life.

Nolan, an Irish immigrant who was working for a public relations company in the fashion industry when the ad was published, learned about the ad on the morning of April 3, 2013, when she arrived at work and saw a notice an acquaintance had posted on her Facebook page, asking whether she had been in that morning’s issue of AM New York. She later received a private message from the same acquaintance with an image of the advertisement. She testified that when she saw the image she “was completely shocked” and “confused,” seeing the “words, ‘I am positive,’ beside my face, I was devastated.” She testified that she felt her “world was just falling down around her,” especially because AM New York was a “big target” for two of her clients, including an important new one.

She got a copy of the newspaper, and testified that she felt “sick to the bottom of my stomach.” She feared for her career in the intensely competitive atmosphere of the office where she was working. On advice of a friend, she told her bosses that morning, showing them the newspaper. She testified that she was “very, very emotional” and “couldn’t stop crying” as she spoke to them. Although her bosses expressed shock, she says that they “calmly went into crisis PR mode,” assessing how it could have happened and whether any clients could have seen it. They did not fire her, as she had feared.

She contacted the photographer, her mother (a psychologist, in Ireland), some friends, and an aunt who had been her mentor when she arrived in New York. Her aunt said she would find a lawyer to represent her.

The photographer contacted AM New York, Getty and the DHR, and put Nolan in touch with a DHR employee by email, who informed her, “After speaking with a Getty representative we have been told we are not liable. We are acting in good faith to remove the image based on the model’s request.” The DHR spokesperson asked Nolan to send them an email stating she would not hold DHR liable and said, “We need the email sooner rather than later as a number of publications are on deadline and are scheduled to move forward with the campaign with Ms. Nolan’s image.” Nolan responded, “Discussing this matter to get further advice but please remove my image from the advertisements. This has already caused enough problems and embarrassment.”

After her email to DHR, Nolan heard nothing further from the State to discuss the ad, but publication was quickly discontinued. Nolan testified to suffering considerable emotional distress, but over the next few months the constant thoughts about who might have seen the ad and how it might affect her subsided, although she claimed it took “a couple years” to rebuild her confidence. It was not until the discovery process for this lawsuit that she found out that the ad had been used in four print publications and three online publications, which triggered again her concerns about how many people might have seen it. Despite a few incidents, the issue generally did not come up or have any substantial effect on her work.

When she was asked during the hearing about what this “association with HIV” meant to her, she testified that while unfortunate, there is “so much stigma around it. . . It’s not like I was in an ad for cancer treatment” where sympathy would be elicited. “There’s a lot of negativity around it,” she testified, “and there’s a lot of associations that people jump to incorrectly about your lifestyle. People think you’re easy, or you’re promiscuous. There’s a lot of just questions around your sexual behavior and your sexual activity. It makes people really think about something so personal to you. It also brings up drug use and just all of these things that I did not want to be associated with and was very embarrassed to be associated with. This goes much deeper, and it really calls into question you as a person and your lifestyle.”

Wrote Judge Scuccimarra, “On cross-examination, claimant confirmed that she did not lose her job nor did she miss any time from work when the advertisement came out. She did not lose any friends. No one other than the acquaintance who first told her about the ad, her Pilates teacher and the outside producer [from an ad shoot] ever informed her that they recognized her as the person depicted in the ad. Indeed, when claimant conducted an online search that day she was unable to see a copy of the advertisement.”

The judge reviewed testimony by several witnesses about the psychological impact of the ad on Nolan, leading to the conclusion that she had been tense and nervous in the period following the publication, but the effects dissipated with time and eventually returned to normal.

As the Appellate Division had ruled back in January, for the purposes of defamation liability falsely labelling somebody as HIV positive fell into the “loathsome disease” category, in spite of changing public attitudes about HIV/AIDS, in which some injury is presumed and the plaintiff is entitled to damages without any requirement to show financial harm. However, the amount to award is up to the discretion of the court, taking into account all the circumstances, and courts will engage in comparisons with the amounts awarded in other cases, comparing the factual situations on some rough scale of fair compensation. Judge Scuccimarra wrote, “the court credits Ms. Nolan’s assessment of a culture of competition at her job, and in the public relations field generally, that left her particularly vulnerable as a young woman to the extreme anxiety and distress she suffered upon publication of the defamatory material. The court also credits the increased anxiety she experienced when imagining how many people could potentially see the ad and make judgments about her that she feared. By all accounts, Ms. Nolan was sensitive, but had learned to hide her feelings somewhat in her two years in the competitive world of New York fashion public relations. This event credibly triggered a setback for her in her confidence and outward demeanor, but she appears to have come out of the experience. She did not lose friends or beaux, and ultimately moved on from her job and succeeded in a new venture.”

The judge decided that based on the “humiliation, mental suffering, anxiety and loss of confidence suffered by this young woman at the beginning of her career, and at the beginning of her growing independence, the vast extent to which the defamatory material was circulated – albeit for the laudatory purpose of getting public service information out to as many people as possible – and all the circumstances herein,” a reasonable compensation would be $125,000, with appropriate interest from the date of the determination of liability on June 18, 2015, which was the date when Judge Scuccamarra had first ruled in her favor prior to the state’s appeal, as well as a refund to her of the fees for filing her lawsuit in the Court of Claims.

Nolan was represented by attorney Erin E. Lloyd of the firm Lloyd Patel LLP. Assistant Attorney General Cheryl M. Rameau of the Attorney General’s Office represented the State of New York.

Sigh of Relief for Law Prof Sued for Defamation and Invasion of Privacy Due to Law Review Article and Lecture

Posted on: May 8th, 2014 by Art Leonard No Comments

Law professors publish law review articles in which they may discuss cases pending in the courts. Such discussions may relate what the plaintiffs are alleging and then theorize about how the courts might treat such claims. When a professor includes the names of the parties in the lawsuit, and one of them feels that the professor’s discussion could be harmful to the party’s reputation and lead people to take an unfavorable view of them, should the professor be liable for damages in a civil court action?

U.S. District Judge Paul Engelmayer of the Southern District of New York gave a firm “no” to that question, at least in the factual context of a lawsuit by the defendant in a case that was pending at the time it was being written and spoken about, seeking to hold Professor Zachary A. Kramer liable for statements published in his article “Of Meat and Manhood” published in the Washington University Law Review as well as a lecture Kramer gave about the subject of his article at Western New England University Law School. Kramer’s article was devoted to some recent developments in employment discrimination law. He discussed the then-pending case of Pacifico v. Credit Agricole, in which a foreign exchange trader at the defendant company claimed to have been subjected to homophobic harassment by a supervisor who, he alleged, labeled him as gay because he is a vegetarian. (Weird, isn’t it? And strongly denied by the supervisor…) Kramer hypothesized that the supervisor equated vegetarianism with homosexuality because of his sex-stereotypical view that “real men” eat meat. The Pacifico case was voluntarily terminated with prejudice after Kramer had published his article and given his lecture, but was still pending when these events happened.

Kramer used the names of the parties in his article and the supervisor (defendant in the civil rights suit) sued him in U.S. District Court in New Jersey, as well as suing the law school whose law review published the article and the law school where the lecture was given (which made available an audio recording the school’s website). Kramer is a professor at Arizona State. The plaintiff lives in New Jersey, although he and the former Credit Agricole employee who sued him for discrimination under the New York State Human Rights Law worked in New York. When the two law schools were voluntarily dismissed from the case, the case was shifted to the federal district court in New York, as the New Jersey court did not have personal jurisdiction of Kramer, the sole remaining defendant. The plaintiff, Robert Catalanello, alleged that he had been defamed and that the statements made about him in the article and lecture had placed him in a false light. New Jersey recognizes the tort of false light invasion of privacy, but New York does not, so an important part of Judge Engelmayer’s decision is his choice of law analysis, concluding that New Jersey tort law would apply, although he found this a “close case.”

But he did not find that there was a close case as to whether Catalanello had stated valid tort claims under New Jersey law. The judge decided that a contextual reading was necessary, and that viewed in context Kramer’s discussion of the case in his article and the lecture were protected from liability under the “fair-report privilege,” which shields from liability “the publication of defamatory statements appearing in a report of an official action or proceeding.” Kramer was discussing the facts alleged in a legal complaint on file in the federal district court in New York, and he made clear in both his article and his lecture that he was taking facts from the complaint, that the facts were contested and that the case was pending. Thus he was not stating that these factual assertions were true, and he was merely using them to illustrate his own theory of shortcomings in employment discrimination doctrine under which it was questionable whether the factual allegations, if true, would state a valid legal claim. (Kramer’s article is very much worth reading on this point, for anybody interested in the way that employment discrimination law is developing in the area of “sex stereotyping” and sex discrimination.) Under New Jersey cases, as long as a publication of defamatory statements takes place in the context of a “full, fair, and accurate account of the official proceeding,” the author cannot be held liable for defamation. This is true as well for the false light claim.

In addition, Judge Engelmayer concluded that some of the statements challenged by Catalanello would be classified as statements of opinion rather than statements of fact, and statements of opinion are generally not actionable as defamation. These statements pertained to Kramer’s theorizing about the motivation of Catalanello for engaging in the conduct in which he was alleged to have engaged, conflating vegetarianism with sexual orientation based on stereotypes about the behaviors of men and women. That is, the court concluded that Kramer was not asserting as fact that Catalanello had these particular motivations, but rather was using the factual allegations of the lawsuit to illustrate his doctrinal critique, in the course of which he speculated as to the motivations of somebody who would engage in the conduct that was alleged in the court complaint.

Sigh of relief for Prof. Kramer that the judge “gets it” and understands the nature of the academic inquiry and the use of fact patterns derived from real cases to discuss doctrinal developments. Cautionary note to law professors who are writing about real cases and using the names of parties: unless a court has made factual findings, be clear that you are discussing allegations that have not been proven as fact!!

Federal Court Affirms $4.5 Million Damage Award Against Andrew Shirvell

Posted on: September 16th, 2013 by Art Leonard No Comments

United States District Judge Arthur J. Tarnow has affirmed a jury verdict of $4.5 million against Andrew Shirvell on September 11.  Shirvell is the homophobic former Michigan assistant attorney general who the jury found committed various wrongful acts against Christopher Armstrong, a gay man who was at the time the newly-elected student body president at the University of Michigan.  Judge Tarnow  denied Shirvell’s motions for judgment as a matter of law, for a new trial, or to amend the judgment on damages.

Shirvell, who is an alumnus of the university, was angered when he read about Armstrong’s election, becoming fixated on doing something to discredit Armstrong.  He started a blog devoted to attacking Armstrong for his “radical homosexual agenda,” claiming that Armstrong engaged in sexual misconduct in public places, among other things, with statements trading on anti-gay stereotypes.  Shirvell showed up on campus and outside Shirvell’s home, ostensibly to “document” inappropriate conduct and to protest against Armstrong.   Armstrong complained about Shirvell’s activities, which eventually led to his discharge from the attorney general’s office when an investigation showed that he had used his office computer to conduct some of his anti-Armstrong activities.  Shirvell was also barred briefly from the university campus, and his conduct was referred to lawyer disciplinary authorities and local law enforcement agencies.  The local prosecutor decided not to charge him with stalking, but Judge Tarnow found that this did not preclude Armstrong from seeking civil damages for Shirvell’s conduct.

Armstron’s lawsuit claimed that the blog attacks and stalking incidents were defamatory, an invasion of privacy and constituted intentional infliction of emotional distress.   Shirvell moved to North Babylon, New York, after losing his job, so although Armstrong’s claims all arise under Michigan state law, the case is in federal court as a suit between citizens of different states.

Shirvell’s defense, repeated over and over again unsuccessfully at trial and in his post-trial motions, was that all his activities were protected by the First Amendment as freedom of speech.  Shirvell argued that Armstrong, as the elected student body president who had put out press releases proclaiming his status as the first openly-gay man in that position, was a public figure.  This would mean that he could only hold Shirvell liable for defamation if he could show that Shirvell made defamatory statements with “actual malice,” a legal standard requiring proof that the speaker deliberately lied or spoke with deliberate indifference whether their harmful statements were true.  Shirvell also claimed that Judge Tarnow erred by not allowing him to argue to the jury that his remarks and conduct were protected by the First Amendment.

Judge Tarnow found that the question whether Shirvell’s activities were protected by the First Amendment was a question of law to be decided by the judge, not by the jury.  The jury’s role is to decide questions of fact, and in a case of this sort, that meant deciding whether the plaintiff had succeeded in proving the various elements of his tort claims.  It was up to the jury to determine whether the statements specified in Armstorng’s complaint were assertions of fact that were either true or false.  Furthermore, because Armstrong was seeking damages for emotional distress, under Michigan law he had the burden to show that Shirvell made these statements either knowing that they were untrue or with reckless disregard for whether they were true or false – the actual “malice standard” that would apply in public figure cases and that the jury would be asked to determine.

Ultimately, the jury decided that the overwhelming majority of the statements were false, and that many of them were made with actual malice.  The jury also heard evidence about the emotional distress that Shirvell’s actions caused to Armstrong, and determined how much money should be awarded to Armstrong to compensate him for this harm and to punish Shirvell for his misconduct.

Even though Judge Tarnow ruled as a matter of law that Armstrong was not a public figure and could win his defamation and invasion of privacy claims without proving actual malice, such proof would be necessary for him to win his emotional distress damage claim.  This was Armstrong’s major damage claim, because he was not alleging any significant economic injury as a result of Shirvell’s statements.  Thus, Shirvell’s continued reliance on the public figure issue in appealing the verdict seemed pointless, since the jury found that Armstrong’s evidence met the actual malice standard in order to justify the damage award.

Judge Tarnow devoted a large part of his opinion to the public figure issue, rejecting Shirvell’s argument that Armstrong’s position at the university made him into a public figure who would have to prove actual malice to win this case.  “The mention of Plaintiff Armstrong in a limited number of mostly local news publications does not render Armstrong a ‘household word,’” he wrote.  “Moreover, Plaintiff’s position as student body president did not provide Plaintiff with control or responsibility for government processes, and therefore does not qualify him as a public official.  Finally, Defendant Shirvell also fails to identify a public controversy in which Plaintiff was involved, other than the attention brought on Plaintiff by Defendant’s own statements and actions.”

Shirvell pointed to newspaper articles quoting Armstrong about being the first openly-gay student body president at Michigan as thrusting himself into public controversy, but Tarnow rejected this, writing, “Again, a matter of public interest is not in and of itself a public controversy,” as he found that Armstrong could not even be considered a limited –purpose public figure.  (A limited purpose public figure would be someone who has involved himself in a public controversy to the degree that protection of free speech on matters of public concern would require that the actual malice standard be met regarding statements relating to the Armstrong and the controversial subject.)

Shirvell’s blog and protest signs had stated that Armstrong had engaged in various kinds of misbehavior, offensive conduct, and even some criminal acts. Armstrong presented evidence that the statements were false.  At trial, Shirvell argued that his statements were either true or non-actionable statements of opinion, but the jury disagreed, and courts are loathe to set aside a jury’s factual findings, especially when the plaintiff’s evidence that the statements are false stands largely uncontradicted by the defendant’s failure to put on much of a case.  Shirvell, who represented himself at trial, only offered witnesses on the public figure issue, which Judge Tarnow found could not be presented to the jury, and provided no direct evidence that the contested statements were true.

On the issue of actual malice, Shirvell rested largely on his own testimony that he believed all the statements he made about Armstrong to be true, but his testimony provided no factual basis for those beliefs, and the court found that neither at trial nor in his post-trial briefs had he even bothered to address a large number of the statements that were in issue.  Judge Tarnow noted that the post-hearing briefs made “specific reference to less than half of the statements at issue in this case.  Of the unspecified statements, Defendant also fails to delineate which statements he alleges are true, which are allegedly protected opinion speech, and which are allegedly rhetorical hyperbole.  This Court cannot dismiss the jury verdict based on Defendant’s generalized claims.”

The judge also rejected Shirvell’s arguments against the size and scope of the damage award, finding that it fell within the normal range for cases involving this type of behavior by the defendant.

Shirvell received volunteer legal assistance on his post-trial motions, and will likely seek to appeal the court’s rulings, since he continues to maintain that all his conduct connected with Armstrong is shielded by the First Amendment.

Appellate Division Unanimously Affirms Dismissal of Defamation Claim in HIV/AIDS Controversy

Posted on: February 19th, 2013 by Art Leonard No Comments

New York Appellate Division, First Department, has affirmed dismissal of Celia Farber’s lawsuit contending that she was defamed by an email that Richard Jefferys sent to Walter Fauntroy in 2008.  Fauntroy was coordinating testimony for “Whistleblower Week,” an event organized by the Semmelweis Society International, during which a “Clean Hands Award” was to be presented to Farber and Dr. Peter Duesberg “for their stance as HIV dissenters, which put them at odds with the medical establishment,” according to the summary judgment opinion issued by New York Supreme Court Justice Louis B. York in 2011.  Farber, a journalist, had published an article in Harper’s Magazine in 2006 that was critical of the medical establishment’s acceptance of HIV as the cause of AIDS and anti-retroviral medications as appropriate treatment for HIV infection.  The Appellate Division ruling in Farber v. Jefferys was released on February 19, 2013.

Jefferys, a longtime activitist in the HIV/AIDS community, is affiliated with the Treatment Action Group, formed as an off-shoot of ACT-UP to promote research and education in the fight against the AIDS epidemic.  He participated in a publication issued in response to Farber’s article, titled “Errors in Celia Farber’s March 2006 article in Harper’s Magazine,” which asserted that there were 56 factual errors in the article.  Among the co-authors of this article, which was widely disseminated on the internet, were prominent researchers and medical academics.  Jefferys reacted to the news that Farber and Duesberg were being honored by sending Fauntroy the email in which he stated: “These individuals are not whistleblowers, they are simply liars who for many years have used fraud to argue for Duesberg’s long-discredited theory that drug use and malnutrition – not HIV – cause AIDS.”  The email offered to provide documentation for his allegations, and asserted that including Farber and Duesberg in the planned event “with, regrettably, discredit and demean your efforts to support the very real issues of recrimination against legitimate whistleblowers.”

Jefferys’ email resulted in Farber being dropped from public participation in Whistleblower Week, although her award was presented to her in a private ceremony.  She filed suit against Jeffreys and others involved in circulating criticisms of her HIV-related writings.  She particularly focused on Jefferys calling her a liar, and she claimed that various criticisms he made of her work were incorrect.

In his 2011 decision dismissing Farber’s defamation claim, Justice York found that Farber was a “limited public figure” and that the subject matter of the controversy was “a matter of public interest.”  Both of these conclusions supported his finding that in order to maintain her lawsuit, Farber had the burden of showing that Jefferys had made incorrect statements with “actual malice,” a constitutional standard requiring that she demonstrate that he made these statements either knowing they were false or with reckless disregard for the truth.  Justice York found that Farber’s complaint and the documentation she offered in response to Jefferys’ motion  to dismiss the case were insufficient to meet this burden.

The Appellate Division’s five-judge panel agreed with Justice York.  He “properly determined that plaintiff was a limited public figure because, through her publication of countless articles, she voluntarily injected herself into the controversial debate on whether HIV causes AIDS with a view toward influencing the debate and projected her name and personality before readers of nationally distributed magazines to establish her reputation as a leading authority in this area.” 

The appellate panel also found that “Jefferys met his burden of demonstrating that plaintiff could not show by clear and convincing evidence that he made the challenged statements with actual malice or with gross irresponsibility.”  Jefferys had explained that his statements were based on “his expertise and research on HIV/AIDS for many years, on an article signed by prominent experts in the field, as well as on the many articles in the record which critiqued plaintiff’s 2006 article as being filled with misquotes or misrepresentations.”  The court continued, “Jefferys also provided documentation to support why he believed what he wrote about the plaintiff was true and compared in detail plaintiff’s journalism to the articles and studies she cited and explained why he believed her work to contain misrepresentations.”

The point of the case is that robust debate on issues of public importance requires a wide degree of toleration for argument and rhetoric, and so long as somebody is not deliberately publishing falsehoods or making statements harmful to the reputation of others without regard for whether they are true, the speaker will be protected from liability for defamation.  In this case, the court found, Farber’s assertion that “Jefferys was biased against her or bore her ill will does not aid her cause,” since that is not the issue in determining “actual malice” as that term is used in constitutional law concerning freedom of speech.

Finally, the court agreed with Justice York’s conclusion that Jefferys’ use of the word “liar” to describe Farber was not subject to legal liability.  “The full content of the statement, including its tone and apparent purpose, and the broader context of the statement and surrounding circumstances leads to the conclusion that what was being read was likely to be opinion, not fact,” and generally legal liability for defamation is limited to factual assertions.  Thus, the court concluded that it was appropriate for Justice York to dismiss the case rather than to subject Jefferys to discovery and trial on the defamation claim.

 Jefferys’ attorney had the following comment on the decision:  “The Appellate Court’s unanimous decision dismissing Celia Farber’s claim against Richard Jefferys upholds important First Amendment rights.  The decision permits Mr. Jefferys to continue to focus on his incredibly valuable work on HIV policy, advocacy, and education.  It is a great result for Mr. Jefferys and the public.”  Statement of Joseph Evall, partner at Gibson, Dunn & Crutcher LLP, and lawyer for Mr. Jefferys.