Sussman Takes Hezi’s Case; Mueller Named Acting Police Commissioner
By Dan Murphy
The libel-defamation lawsuit filed against Hezi Aris, publisher of the online YonkersTribune.com, by three Yonkers police officers continues its way through the courts, and now has an added sense of importance – and intrigue – based on two recent events.
The lawsuits, seeking a total of $17 million in damages and filed by now-Acting Police Commissioner John Mueller, Police Benevolent Association President Keith Olson and Sgt. Brian Moran, focus on a series of columns penned by Hezi titled “The Blue Truth.” The three officers were targets of Hezi’s relentless attacks through the “Blue Truth” stories, and the comments from anonymous posters below the stories on the website were slanderous, libelous, and permitted to remain on the site for all to see with Hezi’s knowledge and permission.
The lawsuits claim Hezi printed the stories against them, knowing they were false, and that Hezi permitted malicious comments against Olson and Mueller to stay on the website while he edited and removed other comments.
Prominent attorney Michael Sussman, known to Yonkers for his role in the desegregation crisis in Yonkers in the 1980s – as portrayed in the HBO miniseries “Show Me a Hero,” has agreed to represent Hezi in all three lawsuits.
The other new development is that Mueller was named last week to become the next police commissioner for the Yonkers Police Department.
Recent legal developments in the case include:
State Supreme Court Judge Linda Jamieson issued a ruling denying Hezi’s attempt to have the lawsuits dismissed. Jamieson’s decision means that the case can continue, including discovery by both the participants and defendants in the lawsuit.
“The essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were spoken or written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion,” writes Jamieson. “A review of the articles shows just that – that they may be reasonably understood as implying the assertion of undisclosed facts, from unnamed, unidentified ‘sources’ which justify the opinion… A review of the amended complaint shows that the plaintiff certainly does allege malice. Whether he can demonstrate actual malice is not presently before this court. That is for a later stage of the action.”
Jamieson’s ruling is important for YPD officers because she did not dismiss the case. A prior libel-slander suit filed by former Yonkers Fire Department Commissioner John Darcy was dismissed. So the YPD-Hezi suit has made it to the next step of the legal process.
Yonkers City Council President and attorney Mike Khader was representing Hezi in the suit against Mueller, but has withdrawn. Jamieson will have to rule if the three cases should be consolidated into one. With Sussman named the new attorney, and with a decision to be made on consolidating all three cases, the matter will likely be adjourned until November.
We spoke to Hezi, who expressed his confidence that he can prove that what he wrote on his YonkersTribune.com website is true. He added that he is legally protected from providing either the names, or IP (internet protocol) addresses of those who posted the viscous comments below his stories about Mueller, Olson and Moran.
“I have to show the judge proof that my stories were true, and I intend to do that,” he said. “But I do not have to reveal my sources, nor would I ever do so. Never, never, never… I have a right to my opinion and as a news source, that right is protected. You may not agree with my opinion but that has nothing to do with the law. I know that the information provided to me is accurate, and I have the physical evidence to back it up, and I have evidence for every item.
“I don’t need to release the names of the posters and I don’t know the names of the posters. I don’t know who is posting and I don’t care – I don’t care if it was the Pope. I won’t give it up. I’d rather go to prison,” said Hezi.
While Hezi’s legal position has certainly improved with Sussman taking the case, there is a legal way in which he would be required to submit the IP address as part of the lawsuit. A judge would have to order Hezi to provide the IP address to the plaintiffs in the case, who are the three officers. That legal hurdle, while definitely a high bar to achieve, would entail the fact that Hezi, as alleged in the lawsuit, edited and deleted some of the posts.
This is an important part of the case that has yet to be proved. But according to Olson, he has proof that Hezi has edited and deleted certain posts that do not conform to the narrative presented on the Yonkers Tribune against Mueller, Olson and Moran.
Case law on anonymous postings do not put the burden on the publisher of the blog or website. Hezi has no legal requirement to manage or oversee the posts – they can be as nasty and as brutal as anyone wants.
But if Hezi did edit or delete certain posts, then the legal standard changes, and that is one of the core arguments in the cases filed by the three plaintiffs. A judge would still have to order Hezi to release the IP addresses, and Hezi would have to decide whether to do so. At that point this case would become a landmark case regarding freedom of the press and libel-defamation.
Hezi added that Sussman “doesn’t take cases that he knows he is going to lose,” and that Mueller, who is expected to be confirmed as acting police commissioner by the City Council, “clearly was not harmed as he alleges in the lawsuit.”
“It besmirches the reputation of the Yonkers Police Department to have him (Mueller) named police commissioner based on my stories, which are true,” said Hezi.
Additional information could come in the form of an YPD Internal Affairs investigation of some of Hezi’s printed stories and allegations.
Hezi said the real reason for the lawsuits is “the want to shut me down and put me out of business. This is similar to the Washington Post printing stories about Watergate,” he said. “They never revealed their source, which we found out years later was Deep Throat… The only time I have to reveal my source or IP address is when it threatens someone’s life, and that didn’t happen here. They are all public figures. They can’t pry lose my sources and everything is true. I know who gave me the information, which was validated by other means.”
The lawsuits against Hezi allege that he “has maliciously and with knowledge that the statements contained provably untrue defamatory ‘comments’ allowed these false and defamatory statements to be published without edit or correction, and has maliciously prevented other commenters from posting comments that rebut, contradict, disprove and refute the false and defamatory ‘comments’ published in the Yonkers Tribune,” states the lawsuit.
The lawsuits highlight some of the “Blue Truth” stories and allegations against Mueller and Olson, including that Mueller “has committed multiple criminal, unethical and immoral acts, inter alia, offering an illegal monetary bribe to a county political leader and state political leader; conspiring with others, including the leadership of the PBA, to illegally divert PBA funds to area politicians; committing the felony of perjury and maliciously claimed that plaintiff submitted perjured police reports to the YPD; stealing funds from a charity event and diverting the stolen money for his own illegitimate purposes; harassing and employing intimidation tactics against other members of the department to further his own future ambitions; improperly hosting a ‘beer party’ in his police precinct in violation of departmental rules; and being insubordinate to the police commissioner by refusing a transfer order.”
The lawsuit states that Mueller “underwent an internal investigation, which found that he did not throw a ‘beer fest party’ or ‘beer bash’ in the police precinct. In fact, the allegation that plaintiff threw a ‘beer party’ in violation of departmental rules and guidelines is verifiably false.”
Hezi contended in our interview that the “beer bash” story is true and he has proof.
Another possible libelous story from “Blue Truth” is that Olson and Mueller collected $30,000 from the annual Toughman charity event, and that the $30,000 in cash was donated to the School for Special Needs Children, and given to Len Spano, director of the school, in cash.
According to the lawsuit, “In a ‘Blue Truth’ article published on Jan. 13, 2018, defendant Hezi Aris with actual malice published the following: ‘The Yonkers PBA has been exposed for police misconduct and its unwavering financial and political support of Mayor Mike Spano, and the Spano brothers since 2012. Recent reports by people in the know have alleged that $30,000 in cash was given to Lenny and John Spano to benefit the School for Special Needs students on whose board they serve… The $30,000 ‘donation’ was said to have been accrued from the annual Yonkers Police v. Yonkers Firefighters Toughman Competition.”
Earlier this year, Mueller stated: “My lawsuit against Hezi Aris and the Yonkers Tribune is not, and never has been, an attack on the First Amendment and the right to free speech. I have always had a strong personal belief in the constitutional right to freedom of speech. What the First Amendment does not protect, however, is someone with full knowledge that the allegations they are making are completely untrue, falsely accusing another person of serious criminal acts that never occurred.
“There is no protection of this type of speech under the U.S. Constitution,” he continued. “This point goes to the heart of my lawsuit. Hezi Aris, the Yonkers Tribune and anonymous bloggers have continually and repeatedly, over a period of approximately six years, with full knowledge that the allegations of criminal conduct he accused of never, ever occurred. They are false accusations that can and have been disproven with factual certainty.
“Hezi knew that these false accusations of the criminal acts that he has continually accused me of never occurred and he chose to repeatedly print them anyway, without a shred of factual evidence. He has also created and encouraged a very vile and hateful forum for anonymous posters to do the same. There are literally thousands and thousands of posts that contain the same false allegations that parallel Hezi’s articles.
“Hezi has sole control of what gets posted and the forum he has nurtured and encouraged run the gamut of horribly racist, homophobic, sexist and physical threats,” said Mueller. “I don’t think you’ll find many people who would disagree that no person has the right to falsely accuse someone of criminal acts that never occurred. It is something that should never be tolerated and rightfully does not fall under protected speech.
“Those interested can make up their own minds as to whether this was freedom of speech or, as I contend, a malicious campaign to destroy my reputation through knowingly false accusations of criminal activity – a reputation that I have worked very hard to build over my 27-year career in law enforcement.
“Hezi intentionally tried to ruin my professional reputation and he should be held accountable for that. His malicious six-year campaign of libel is something that has taken a tremendous toll, not just on me, but on family, friends and the department I love. I would not wish what he has done to me, my family and friends on anyone,” writes Mueller.
We spoke to Olson this week. He said that during the course of the few years the “Blue Truth” articles have run, he has had on-air interviews with Hezi in which he commented on the allegations set forth in the lawsuit, and that Hezi continues to edit and delete comments. “I’m still confident that based on the judge’s decision to let the lawsuit move forward, we will get our day in court,” said Olson.
Another goal of this lawsuit is to try and reveal the anonymous posters, or their IP addresses, for all to see. Allegedly, those posting possible libelous comments below Hezi’s story are a who’s who of Yonkers, including businesspersons and members of the Yonkers Police Department.
