Over Par 3 Golf Course Media Coverage “This is Now a First Amendment Case that will gain national attention,”
Larry Nussbaum, RC Development
By Dan Murphy
For the past month, Westchester Rising and Yonkerstimes.com have reported on a disagreement over the redevelopment of a Par 3 Golf course in the Town of Yorktown, next to the JV Mall. Last week, another newspaper in Northern Westchester ran the same ad on this topic that appeared in our Westchester Rising last week. That same ad also appears this week on page 4, and was paid for by Larry Nussbaum, President of RC Development, who in the ad reiterates RC’s claim to have the sole contractual right to redevelop and finish the work to open the 9 -hole course for next Spring, 2023.
That ad resulted in an exchange of emails between the other newspaper, attorneys for Slater, and attorneys for RC over whether the ad was defamatory or libelous in any way towards Slater. Read the ad above and make your own decision.
We do not wish to engage either the publisher of the other newspaper, or Slater’s attorney. Instead, we print the response letter of William Hurst, attorney for RC Development. Hurst called the threats of legal action “an attempt to Chill Free Speech.”
“Your correspondence belies a fundamental lack of knowledge or understanding of the substantial, and in this case dipositive, protections afforded to the press and public (including RC and Mr. Nussbaum) under the First Amendment to the United States Constitution, Article I. For the reasons that follow, we respectfully but emphatically reject wholesale your client’s invitation to “cease and desist” from publishing newsworthy information and/or protected opinions on matters of public interest and concern in the greater Yorktown community.
“I expect that you are aware of RC’s status as the current concessionaire pursuant to that certain Concession Agreement by and between RC and the Town of Yorktown originally dated September 19, 2014, and amended on May 28, 2018, and again on or about June 4, 2022. The purpose of that agreement, again, as I expect you know, was to establish a public-private partnership in the development and operation of a Town-owned golf facility. Pursuant to the Concession Agreement’s First Amendment, the term of the agreement extends until August 31, 2028, with an option, exercisable by either party, to extend the term for another decade.
“Further, RC is the plaintiff advancing a ten-count complaint alleging various breaches of the Concession Agreement by the Town, and asserting various constitutional violations against, inter alia, Slater in his official and individual capacities, including based on the unlawful RFP mentioned.
“It appears from the November 3, 2022, correspondence that your client is threatening some kind of defamation lawsuit, allegedly arising from the publication of my clients’ editorial statement concerning RC’s contractual business relationship with the Town, including the Town’s rather obnoxious issuance of an RFP to replace RC as concessionaire before expiration of the Concession Agreement’s term.
“Under these circumstances, Slater is obviously a public official, and is obviously complaining about a publication on matters of public interest and concern, i.e., the development of a public golf facility and the Town’s involvement therein, including its breaches and allegedly unconstitutional conduct undertaken by Slater himself, exactly as RC alleges in its filed complaint against him.
“To state that the lawsuit threatened in the November 3, 2022, correspondence would qualify as a Strategic Lawsuit Against Public Participation, a/k/a, a “SLAPP suit,” is again merely to state the obvious. Should your client wish to undertake such a lawsuit, mine would be pleased to seek relief, including (at a minimum) an award of attorneys’ fees and costs, pursuant to New York’s newly enhanced Anti-SLAPP laws.
“The Threatened Lawsuit Intended to Chill Free Speech On Matters of Public Interest and Concern Qualifies as a Prohibited SLAPP Suit. In 2020, the New York Legislature amended New York’s anti-SLAPP statute to “broaden the scope of the law and afford greater protections to citizens” and to mandate, rather than merely permit, the recovery of costs and attorneys’ fees upon demonstration “that the action involving public petition and participation was commenced or continued without a substantial basis in fact and law and could not be supported by a substantial argument for extension, modification or reversal of existing law. “Civil Rights Law § 70-a[1][a].
“The elements of a cause of action [to recover] for defamation are a false statement, published without privilege or authorization to a third party…and was made with knowledge of its falsity or with reckless disregard of whether it was false.
In other words, Slater would need to overcome the nearly insurmountable burden of proving not only that the published statement was factual, false, and defamatory, but also that it was published with actual malice. Actual malice means that the statement was made knowing its falsity or with reckless disregard for the truth.
“But before your client’s ostensible defamation claim fails under the actual malice standard, it would be defeated by Slater’s inability to identify any false and defamatory statement of fact in the subject publication.
“First, “[T]ruth is an absolute defense to an action based on defamation.” Heins v. Board of Trustees of Inc. Vil. of Greenport, 237 A.D.2d 570, 571 (2d Dept. 1997); Goldberg v. Levine, 97 A.D.3d 725, 726 (2d Dept. 2012). Therefore, to satisfy the falsity element of a defamation claim, Slater must allege that the complained of statement is “substantially false.” Indeed, “[I]f an allegedly defamatory statement is ‘substantially true,’ a claim of libel is ‘legally insufficient and … should [be] dismissed.’” Biro v. Condé Nast, 883 F. Supp. 2d 441, 458 (S.D.N.Y. 2012)
“As mentioned above, RC’s statements relative to the Concession Agreement’s termination date, of which Slater complains (rather remarkably), are both privileged under the substantial truth doctrine and non-defamatory. As we sit here today, the Concession Agreement is the midst of the initial term, extending until August 31, 2028. My client holds an option to extend that agreement for another ten years, or until August 31, 2038.
“Second, according to longstanding constitutional principles, “[i]t is a settled rule that expressions of an opinion ‘false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions.’” Steinhilber v. Alphonse, 68 N.Y.2d 283, 286 (1986) (quoting Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380 (1997)).
“Under both the federal and New York Constitutions, only statements that are demonstrably false are actionable. Referring to the recently undertaken RFP replacement process as a “sham” is not only substantially true (as RC’s lawsuit plainly alleges), but falls squarely and comfortably within the protections afforded by the First Amendment. In identifying the range of such protected opinion, the United States Supreme Court has reaffirmed on numerous occasions, that mere “rhetorical hyperbole” cannot “reasonably [be] interpreted as stating actual facts about an individual” and is therefore not actionable defamation. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990).
The New York Court of Appeals has similarly recognized, as discussed above, that loose, figurative, or hyperbolic language is seldom deemed actionable. In fact, New York courts (among others) have held far worse statements nonactionable.
See, e.g., Levin v. McPhee, 917 F.Supp. 189, 236 (2d Cir. 1997) (implication in book that plaintiff “may have murdered” a person was protected expression of opinion based on speculation) (emphasis supplied); Renner v. Donsbach, 749 F.Supp. 987, 995 (W.D. Mo. 1990) (statement that plaintiff was “no better than a murderer” was nonactionable rhetorical hyperbole) (emphasis supplied); Brown v. Hearst Corp., 862 F.Supp. 622, 628-29 (D. Mass. 1994) (insinuations in television program that plaintiff “murdered his wife” were nonactionable opinion) (emphasis supplied), aff’d, 54 F.3d 21 (1995);; National Rifle Assoc. v. Dayton Newspapers, Inc., 555 F.Supp. 1299, 1305, 1309 (S.D. Ohio 1983) (statement in newspaper editorial that the National Rifle Association “happily encourages” “murders and robberies” was nonactionable opinion and “caustic bombast traditionally used in editorial writing to stimulate public reaction”) (emphasis supplied); Mildon v. Rutherford, Case No. ESX-L-4238-01, slip op. at 19 (N.J. Superior Ct., Essex Co., March 22, 2002) (held, statements calling plaintiff-police officer a “murderer” and characterizing shooting incident as “another police murder” “are precisely the types of comments that must be protected by the First Amendment in order for us to have the free expression of opinion that is guaranteed by the Constitution”) (emphasis supplied).
Based on the undeviating authority presented above, any rhetorical language in the complained of statement plainly amounts to constitutionally protected opinion. Indeed, the foregoing, while not an exhaustive recitation of prevailing First Amendment law, certainly shows that the law offers no protection whatsoever to thin-skinned and/or overly sensitive public officials caterwauling over citizen critiques of their public performance.
Not only that, but New York’s robust Anti-SLAPP laws now provide the press and the public with a robust weapon in the fight against attempts to suppress free speech on matters of public interest and concern.
As an elected official with apparently higher political aspirations, your client should know better than to come forward with this kind of ham-handed missive. If your client cannot handle legitimate criticism here, one can reasonably wonder how he would perform in a statewide office. Unfortunately for your client, New York is not Florida. Free speech and criticism of public officials are still broadly protected against retaliation here,” writes Hurst.
Editor’s Note: This newspaper agrees with the law cited by Hurst, and, as a result, re-prints the following advertisement below, paid for by Mr. Nussbaum, who added, This is Now a First Amendment Case that will gain national attention.”
