NY trial court dismisses defamation action – statements constituted opinion, not fact

In Rashada v. New York Post et al (NY Sup. August 11, 2011), 2011 Slip Op. 32234(U), Judge Scarpulla dismissed plaintiff’s defamation action against the New York Post and the author of an article allegedly suggesting that plaintiff – one of several imams at a mosque and a Department of Corrections employee – had “radicalized” inmates and incited them to plot to commit terrorist acts, and that the connection between the prison system, the radicalization of inmates, and plaintiff’s mosque be investigated further.

The section of the article identified by plaintiff as being false and defamatory read as follows:

“What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque … that defendants attended after being released from prison had a connection with the prison system.  Imams Iinarns Salahuddan Muhammad, Hamim Rashada and [plaintiff] worked for the Department of Correctional Services.  All had been hired by Warith Deen Umar – who for years headed ministerial services for the New York State prison system.”

Failure to State a Cause of Action for Defamation

Plaintiff alleged (1) libel based on the column itself (i.e., that the article was “false, defamatory and leads the reasonable reader to believe that, in her capacity as a Muslim chaplain in the New York prison system, plaintiff ‘radicalizes’ prison inmates, possibly including the four ‘Newburgh defendants,’ and encourages inmates to undertake acts of terrorism”) and (2) “libel by implication” (i.e., that “the entire column, including its title, when read together implies to a reasonable reader, the patently false accusation that plaintiff engages in the radicalization of prison inmates and encourages them to engage in acts of terrorism.”).

Under New York law, “expressions of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation.”  The court cited the three factors iterated by the Court of Appeals “which must be considered when determining if an item, such as the article, is protected opinion:

( 1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to ‘signal’. . . readers or listeners that what is being read or heard is likely to be opinion, not fact.”

Furthermore, “instead of parsing out and evaluating the challenged statements in isolation, New York courts look to the immediate context and the broader social context of the statement.”

Applying this standard, the court held that the article constituted protected opinion.  Initially, it was printed under a prominent heading “‘POST OPINION,’ which alerted all readers that the article they were about to read was the opinion of [defendant author] Dunleavy.”  Furthermore, “the broader social context of the article – the radicalization of prison inmates, leading them to engage in terrorist activity – is a topic which is intended to create much discussion and debate, and a topic on which a verifiable conclusion is neither expected nor delivered.”

Notably, plaintiff did “not claim that any of the factual statements about her … are false”, but rather claimed “that these concededly true factual statements ‘intend[ed] the reader to believe’ that she radicalized prison inmates.” Plaintiff’s “spin on these statements – that Dunleavy intended to convey that she is part of a group suspected of ‘the radicalization’ of prison inmates – is not the only interpretation that may be reached from the above-quoted language and the article as a whole.  The article is plainly intended to raise issues, rather than convey specific, objective facts about Rashada’s role in the radicalization of inmates.”

The court thus concluded that

“the article does not make any definitive accusations against Rashada, but rather the article suggests that the connection between the former inmates and the mosque should be investigated.  Rashada correctly points out that the article does not contain an explicit request for an investigation.  However, the tone of the article is inquiring, not conclusory and shows that Dunleavy is presenting a plausible theory and not a proven fact.  Applying the factors used in New York to distinguish actionable, defamatory statements from protected opinion, the Court finds that in the article Dunlcavy expresses his opinion, which is protected and may not form the basis of a defamation suit.”

The court thus granted defendants’ motion to dismiss for failure to state a cause of action.

No Personal Jurisdiction Over the Individual Non-Resident Author Defendant

Even if the court did not dismiss the complaint for failure to state a cause of action, it determined that dismissal was warranted against the individual defendant author, a non-resident.

The only applicable section of NY’s long-arm jurisdiction statute was CPLR 302(a)(1) (based on“transact[ing] any business within the statc or contract[ing] anywhere to supply goods or services in the state”), since CPLR 302(a)(2) and (a)(3) by their terms are inapplicable to defamation actions.  Moreover, CPLR 302(a)(1)’s “transacts business” standard “is more strictly interpreted in defamation cases”, and “[t]he single act of distributing a defamatory statement is insufficient to establish personal jurisdiction.”  Furthermore, the business allegedly transacted “must also have given rise to the action.”

Applying these principles, the court determined that the court lacked personal jurisdiction over the individual non-resident author defendant:

“Hcre, Rashada has failed to establish that this Court has personal jurisdiction over Dunleavy. While Dunleavy may have been interviewed in New York by other entities, the interviews were not in connection to the article at issue and are therefore inapplicable. … Dunleavy’s single column is insufficient to meet the ‘transaction of business’ standard in CPLR 302(a)(1) because his only act of business relating to this action is one article.”