file photo by Boyd Loving of Matt Rogers and Roberta Sonenfeld
July 29,2016
the staff of the Ridgewood blog
Ridgewood NJ, Reader say Criticism of Village of Ridgewood Attorney met with a cheap attempt at censorship and silencing the public through intimidation.
We have seen this before :
“Commenters on this thread need to bone up on libel law. Castigating a practicing attorney must be done with a degree of care that is greater than when one is pummeling a non-professional. If a lie is uttered that forms the basis of an overall message, explicit or implicit, that the attorney in question is unfit for the practice of law, a judge or jury is empowered to declare that libel has occurred. And not just ordinary libel, with respect to which financial damages must be proven to the penny, but libel per se, in which damages are presumed.”
A reader responds , “That’s right James. Not only is Rogers a public figure because he works in a municipal council but TRUTH is always a defense to any threat of ‘libel’. I think that July 28, 2016 at 6:21 pm anonymous message may have been written by Rogers himself (or someone astroturfing on his behalf.) It’s just another cheap attempt at censorship and silencing the public through intimidation. They’re low enough to do such things. The bottom-line is that rogers is a bum period! “
Since we heard this during the recent Village election campaign we thought we would clear the air .
The controlling precedent in the United States was set in 1964 by the United States Supreme Court in New York Times Co. v. Sullivan. It is considered a key decision in supporting the First Amendment and freedom of the press.
A fairly high threshold of public activity is necessary to elevate people to public figure status. Typically, they must either be:
a public figure, either a public official or any other person pervasively involved in public affairs, or
a limited purpose public figure, meaning those who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” A “particularized determination” is required to decide whether a person is a limited purpose public figure, which can be variously interpreted:[2]
A person can become an “involuntary public figure” as the result of publicity, even though that person did not want or invite the public attention. For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established…
A person can also become a “limited public figure” by engaging in actions which generate publicity within a narrow area of interest. For example, [jokes about]… Terry Rakolta [an activist who spearheaded a boycott of the show Married With Children] werefair comments… within the confines of her public conduct [and] protected by Ms. Rakolta’s status as a “limited public figure”. https://en.wikipedia.org/wiki/Public_figure
Proving Fault: Actual Malice and Negligence
Unlike other countries that hold a publisher liable for every defamatory statement regardless of what steps he or she took prior to publication, under U.S. law a plaintiff must prove that the defendant was at fault when she published the defamatory statement. In other words, the plaintiff must prove that the publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.
Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbor is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her. Determining who is a public or private figure is not always easy. In some instances, the categories may overlap. For example, a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes. https://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence.
The bar for proving libel against a ‘public figure’ is very very high. You would have to prove actual malice, and evidence that a person was lying despite knowing the truth.
New York Times Co. v. Sullivan (1964) famously held that government officials can prevail in defamation lawsuits only if they can show that the defendant knew the statement was false, or was reckless about the possibility of falsehood — but it also, less famously, held that government entities can’t sue for defamation, period, regardless of the defendant’s mental state.
“[P]rosecutions for libel on government,” the court repeated in Rosenblatt v. Baer (1966) — in a context that covered lawsuits and not just criminal prosecutions — are something that “the Constitution does not tolerate in any form.” And the Virginia Supreme Court echoed this in Dean v. Dearing (Va. 2002). So even if someone deliberately lies about the University of Virginia, and this lie damages the university’s reputation, the university can’t win a libel lawsuit against the person.
…public entities — police departments, government-run ski resorts, cities, counties, states or the federal government itself — cannot take advantage of the libel claims that are available to nongovernmental organizations.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/05/libel-law-and-the-rolling-stone-uva-alleged-gang-rape-story-an-update-in-light-of-the-columbia-school-of-journalism-report/
so what is this story about,
The idea that an attorney becomes a public figure, open to have their professional reputation tarnished in the absence of actual malice, solely by virtue of having a municipal corporation or governing body as their client, as opposed to, say, an ordinary private sector company, seems wrong. How would such an attorney manage their practice in the face of such a risk? No, an attorney does not become a public figure for purposes of defamation law solely by providing legal services to a town or village. Some other factors extraneous to the legal work being performed would have to be in play. And most attorneys don’t “freelance” in that way while on the clock for a client.
Not for nothing, but the village attorney is not an employee of the Village of Ridgewood. He is in private practice. He bills the Village on a per hour basis like any other vendor of services. Is the allegation that he has intentionally held himself out as some kind of thought leader on policy, in addition to the traditional, confined role of providing advice and opinions on questions of law? To repeat, he doesn’t occupy an elected office, and he’s not a high-level municipal employee. What has he intentionally done that makes him a public figure for purposes of defamation law?
John V ,lol get over your self these silly threats , a public person is a public person nice try and as I said your not a lawyer
so it is time to hire a new attorney, the new mayor. and council need to wake up and say good by to roger boy.
No threats. Nothing of the kind. No dog in this fight at all. Just a free and open exchange of ideas and of opinions. And not John V. (whoever that is).
Matt Rogers only cares about Matt Rogers’ billable hours
Mr Rogers is a fine man who is tasked with a difficult job. I think He has performed exceptionally in a difficult environment. He has been and is a trustworthy legal advisor for the Village.
The village ran a small legal announcement in last week’s Ridgewood News stating that Matt Rogers had been retained for yet another year for a maximum fee of…$250,000. Does he provide a quarter of a million dollars’ good advice? Methinks not. The council now has about a year to look elsewhere.
Remember that Mr. Rogers works for the Council. The last Council utilized what can at best be described “questionable tactics” to advance their personal agendas. It wasn’t Mr. Rogers’ job to weigh in on the ethics of what the last Council tried to pull off, it was his job to advise them how to do it as close to legally as possible. How many of us would resign a $250,000 a year job because we thought our employer was less than ethical? He was in a tough spot. Can the current Council get comparable or better legal advice for less than $250K per year? Different question but maybe they should test the waters.
WOW that’s a lot of money. what the hell is going on. why don’t the village just hire a full time law man for that, holy crap, is the village in a spot that they need to spend this much, how much did we spend in the past,
Mr Rogers rightly recused himself from the garage matter, that gives him some credibility to me. Where is the outrage over rehiring the bond counsel firm that provided horrible and costly incorrect advice to the village?
Mr. Rogers is a fine man and an excellent attorney. You cannot blame him for doing his job. His job is to do the bidding of the village council. If you don’t like that, then get the job description changed.
Please keep in mind the original exchanges involved Gail Price – – she is the one who threatened everyone with libel persecutions for speaking out against her husband’s candidacy and her involvement as attorney for the planning board. She is the one that had the tremendous conflict that is now the basis of the anti-Valley expansion lawsuit.
3:25 appears to be a lawyer. So he/she is most likely VERY aware of the fact that representing the government (or even a prominent public figure) in many cases does land the attorneys into the ‘public figure’ category?
.
Lawyers who work for the government — as judges, prosecutors and public defenders, for example — have often been held to be public officials who must show actual malice in a libel suit.
Thus a former city attorney and counsel for a local redevelopment agency who had initiated a recall of local public officials was found to be a public figure. Weingarten v. Black, 102 Cal. App. 3d 129, 162 Cal. Rptr. 701 (Cal. Ct. App. 1980). So was a prominent private lawyer who represented many public school districts. Schwartz v. Worrall Publications, Inc., 258 N.J. Super. 493, 610 A.2d 425 (1992).
A politically connected law firm was held to be a public figure when the firm sued a county legislator who accused it of over-billing the county and trying to hide a county official’s miscounduct. Crowe Deegan v. Schmitt, 12 Misc. 3d 1152(A), 819 N.Y.S.2d 209, 2006 NY Slip Op 50870(U) (N.Y. Sup. Ct., Nassau County Apr. 14, 2006) (unpublished), aff’d and modified in part on other grounds, 38 A.D.3d 590, 832 N.Y.S.2d 242 (N.Y. Sup. Ct., App. Div. 2d 2007).
8:54, you’ve found case law that appears to expound upon the issue of whether, when, and under what circumstances an attorney against whom negative statements have been made can be deemed a public figure in the context of defamation law. In the Weingarten case the attorney initiated a petition. In Schwartz the attorney became prominent, apparently in the process of being engaged by multiple similarly situated clients who probably needed a mouthpiece. Finally, in Crowe the law firm in question apparently paid the price for doing whatever a law firm needs to do to develop a public reputation of being “politically connected”. Do you think the facts of any of those cases are sufficiently similar to the present facts to make the “public figure” holding common to those cases applicable to Mr. Rogers?
James, seems like you’ve been missing my comments perhaps???