By Amy Sara Clark (The Jewish Week)
November 18, 2014
Sam Kellner, the chasidic sex abuse whistleblower who was indicted in 2011 for extortion, but whose case was dismissed in early 2014, has filed a defamation suit against The Jewish Daily Forward.
The suit alleges that reporter Paul Berger relied on out-of-context excerpts from illegal and doctored recordings in an attempt to commit “low grade character assassination” of Kellner and protect convicted child molester Baruch Lebovits.
The lawsuit claims that Berger’s article, “Sam Kellner’s Tangled Hasidic Tale of Child Sex Abuse, Extortion and Faith,” turned a “distinguished” publication into a “Pravda for pedophiles.”
The events that led to the Nov. 14, 2013 piece began in 2008, when Kellner told police that Lebovits had molested his son. A prosecutor told Kellner that the alleged molestation was only a misdemeanor and the District Attorney’s office wouldn’t proceed with the case without more victims. Kellner found two more alleged victims and in 2010 Lebovits was convicted of eight counts of sexual assault.
However, soon after, the Lebovits family accused Kellner of paying one of the young men $10,000 to falsely testify and of trying to extort $400,000 from the Lebovitses in exchange for persuading the witnesses to drop their charges. Kellner was indicted in 2011 for perjury and extortion, but the case was dismissed in early 2014 after a review by the new Brooklyn district attorney, Kenneth Thompson, who determined that the witnesses against Kellner weren’t credible enough to proceed with prosecution.
The suit, filed by Kellner’s attorney Niall MacGiollabhui in Manhattan Supreme Court on Friday, alleges that the Forward defamed Kellner twice in the article, and then once more over Twitter.
The first claim is that the article falsely states that Kellner was caught on tape telling “the family of a child molester who had pleaded guilty that he can help get the man off,” and suggesting to them that “they can buy off prosecutors with meals, New York Yankees tickets and other gifts to have the case thrown out.”
The lawsuit alleges that the recording was obtained illegally and “doctored by the Lebovits family to change the context in which Sam’s words were spoken.”
Specifically, it contends that “general, non-specific accounts given by Sam of how his community interacts with the district attorney’s office were doctored,” and that Berger was “fully informed prior to publication about the illegal nature of the recording.”
The second claim is that Berger accused Kellner of “conspiring to commit extortion” in a passage that says that another man, Simon Taub, implicated Kellner in an extortion plot. However, MacGiollabhui argues that the entirety of Taub’s recorded conversation — to which Berger apparently had “full access” — and Taub’s subsequent refusal to implicate Kellner to the DA, make it clear that Taub “never implicated Sam in his extortion plot.”
The third alleged act of defamation was a Nov. 16 tweet by the Forward that incorrectly characterized Kellner as a “convicted extortionist.” The Forward retracted the statement several days after publication and apologized for it in a note at the bottom of the online article.
The lawsuit alleges that each of these defamatory statements charge Kellner of committing a crime — soliciting the commission of bribery, conspiring to commit extortion and being convicted of extortion — which puts them in the category of “defamation per se,” meaning Kellner doesn’t have to prove the article damaged his reputation — the fact that he was falsely accused of a crime shows that damage was done.
David Korzenik, an attorney who specializes in representing the press in litigation and teaches media law at Cardozo School of Law, said that he thought the prospects of Kellner winning the case were “low.”
Because Kellner and Lebovits have been so extensively written about, Kellner may well have become an “involuntary public figure,” raising the standard of proof.
“You’re going to have to show actual malice with clear and convincing evidence. ... It’s very difficult to assemble that kind of proof, and it’s very unlikely that it’s there given [Berger’s] approach in which he makes clear the he does not purport to ‘know the truth about the cases of Leibovits and Kellner.’”
“Defamation cases are difficult to win,” agreed Daniel J. Kornstein, who has defended several defendants in libel suits. “We all know the high hurdles [plaintiffs] have ... . You have to show a great deal to overcome those hurdles.”Samuel Norich, The Forward’s publisher and CEO, said the paper stands by the article.
“We believe this lawsuit is without merit,” he told The Jewish Week. “Our article treated all parties in this dispute — including Mr. Kellner — fairly and we stand by our reporting.”