A Hudson County Superior Court judge dismissed a Hoboken political activist’s $2 million defamation lawsuit against two local political bloggers this past Tuesday, ruling that the alleged victim had failed to provide enough evidence that his antagonists knew the claims they made about him were false or that they acted with willful disregard for the truth. The case, filed in 2012, revealed how nasty politics in Hoboken can get, with online insults against the victim’s family and allegations of involvement in an FBI probe.
However, the bloggers’ posts were protected by free speech, according to the Hudson County judge.
The case was filed by Hoboken resident Lane Bajardi, a radio news anchor, and his wife Kimberly Cardinal Bajardi, both of whom have been active in Hoboken politics since 2005, against two local political bloggers, Roman Brice and Nancy Pincus, along with 10 internet commenters identified by their screen names.
Brice and Pincus have frequently posted blog entries in favor of Mayor Dawn Zimmer’s administration, while Bajardi has been politically involved with one of Zimmer’s highest profile political opponents, Councilwoman Beth Mason.
Zimmer and Mason were both on the same side politically in Hoboken, members of the town’s “reform” coalition, but the movement split and they both ran for mayor in 2009, losing out to former Mayor Peter Cammarano, who resigned after a federal indictment three weeks into his term.
The Bajardis’ complaint pointed to dozens of comments posted by Brice, Pincus, and other anonymous commenters against them on blogs and local news sites between June 2011 and July 2012. The couple alleged that these statements were false and damaging to their reputations, and sought at least $2 million in punitive damages.
After 540 days of document discovery – including 50,000 emails – and countless motions, the case went to a Superior Court jury trial in Jersey City on Jan. 28. Kim Cardinal Bajardi’s claims had been dismissed, as the only posts that might cross the threshold of defamation were found to be against Lane Bajardi.
The First Amendment “does not embrace the trite wallflower politeness…that ‘if you can’t say anything good…you should say nothing at all.’” – Rodney Smolla
After Jonathan Cohen, the Bajardis’ lawyer, rested his case on Monday, Feb. 9, the defendants argued that he had failed to substantiate any of his clients’ allegations of defamation and asked for the case to be dismissed.
On Tuesday morning, Judge Arre agreed, finding that Cohen had not done enough to prove that Brice and Pincus’ statements had damaged his clients’ reputation in the community or negatively affected Lane’s employment. He noted in his decision that the standard for proving defamation in New Jersey is very high.
Pincus’ attorney Stephen Katzman said on Wednesday that he would file a motion to recoup the court costs incurred fighting “frivolous allegations” by the Bajardis. Meanwhile, the Bajardis’ attorney, Cohen, said Tuesday that he planned to appeal the lawsuit’s dismissal within 45 days.
Impolite, but not illegal
The posts and comments challenged by the Bajardis provide a window into the often toxic tenor of Hoboken’s online political discourse, where the anonymity and manufactured distance of the internet meets the bitterness and personal antagonism of local politics. In Hoboken, a wealthy city where millions of dollars in development and contracts are at stake, power struggles can become brutal, whether those involved are new to the area or have been here for years.
During the time period in question, Pincus wrote frequently about the Bajardis on her blog. At one time, she nicknamed them “Mr. and Mrs. Melanoma” (the post can still be found on her site). Pincus referred to the Bajardis as “a sickness living amongst us,” and alleged, among other things, that Kim Bajardi was a racist and an irresponsible parent. One day, Pincus posted a series of impassioned comments on a local news website repeatedly suggesting that someone should “call DYFUS” on the couple, who have a toddler, because of their alleged political stance about the public schools.
The back-and-forth was not only confined to the blogosphere: Pincus sent an email to Bajardi’s employer, 1010 WINS, in January 2012 suggesting that Bajardi was a “hyper-partisan political operative” and had posted anti-Semitic comments under a pseudonym. However, Bajardi, like Pincus, is Jewish. Pincus has never denied sending the email, and described in court the response she received from 1010 WINS.
As the case made abundantly clear, though, the First Amendment affords robust latitude for impolite and insulting speech. In a summary judgment last September, Superior Court Judge Christine Vanek threw out the vast majority of the Bajardis’ claims, finding only six statements to be potentially defamatory in nature. It was those statements alone that were at issue in the recent trial.
Vanek said the rest could not be defamation because they could be considered rhetorical hyperbole, name-calling, opinion rather than verifiable fact, clearly satirical, posed as questions, not in direct reference to the Bajardis, or time-barred due to New Jersey’s statute of limitations.
As New Jersey Supreme Court Justice John Wallace wrote in a 2004 defamation ruling cited by Vanek, “the use of epithets, insults, name-calling, profanity and hyperbole may be hurtful to the listener and are to be discouraged, but such comments are not actionable.”
The First Amendment “does not embrace the trite wallflower politeness of the cliché that ‘if you can’t say anything good about a person you should say nothing at all,’” explained constitutional scholar Rodney Smolla in a 1986 treatise, cited by both Vanek and Arre.
Vanek ruled that statements such as the DYFS one could not be taken seriously as a matter of law.
“No reasonable jury would believe that [Pincus] has ever been in a position to judge [the Bajardis’] skills as parents…” she wrote, “and therefore any statements proffered by [Pincus] in this regard should be considered unverifiable opinion and insults.”
New Jersey courts also typically give wider latitude to political discourse, which depends on the free expression of subjective opinions. The N.J. Supreme Court has given greater leeway to “statements made in the heat of vitriolic battle,” which, according to the court, a reasonable person would expect to be exaggerated.
Qualified as a ‘limited public figure’
The claims of defamation that made it to trial were subject to an exceedingly high standard of proof because Lane Bajardi was determined by the Superior Court to be a “limited public figure” due to his activism in town.
As Judge Arre explained, limited public figures are individuals who have “thrust themselves into the vortex of a public issue or have engaged the public’s attention in an attempt to influence its outcome.”
Does that make everyone who speaks on a public issue a limited public figure, particularly in a heated town like Hoboken? While the standard may seem subjective, Arre believed Bajardi met it.
For Bajardi, that public issue was the “contentious factionalism present in Hoboken politics,” in Vanek’s words.
The court found ample evidence of Bajardi’s involvement in controversial political issues. Between 2006 and 2011, he spoke in favor of Mason at multiple City Council meetings. Bajardi also endorsed the candidacies of Peter Cammarano and Beth Mason for Hoboken mayor in letters to The Hudson Reporter.
In addition, a trove of personal emails turned over by the Bajardis during the case revealed that Lane Bajardi had been an active participant in several of Mason’s campaigns, performing such tasks as putting together a written platform.
Bajardi maintained in his testimony that he withdrew from Hoboken’s political scene in 2011, the year he took employment with 1010 WINS, and ceased all campaign volunteering and attendance at City Council meetings. Yet, he said, the two bloggers kept writing about him.
According to decisions from both Vanek and Arre, once an individual is determined to be a limited public figure, he remains one as long as the public controversy he is associated with persists.
Due to his status, Bajardi had to prove that his alleged defamers acted with “actual malice.” This standard, established in the landmark case of New York Times v. Sullivan, required Bajardi to provide clear and convincing proof that Pincus and company knew their statements were false or acted with reckless disregard for the truth.
Paid political operative?
The surviving claims that went to jury trial in January were based on statements by Brice, Pincus, and Mark Heyer, the only anonymous on-line commenter who ended up being identified in the case. The statements alleged that Lane Bajardi was a “paid” political operative of Beth Mason. Due to Bajardi’s job as a journalist, Judge Vanek ruled, calling him a paid political operative could be considered defamatory if proved false. Some news organizations have policies about their employees’ political activities, particularly when paid.
Bajardi’s email correspondence with Mason made clear that he had been involved with multiple political campaigns with her. For example, in May 2009, Bajardi authored an email claiming that he and his wife have been “fighting the good fight and covering Beth [Mason]’s flank for years.”
But the key question was whether Bajardi was paid and whether his critics knew it or not when they blogged about it.
Bajardi testified in court that he was always a volunteer, and Mason – a wealthy political donor to national and local Democratic causes – testified to that effect as well. The evidence Bajardi presented for this claim was his absence from any of the campaign spending reports Mason filed with the New Jersey Election Law Enforcement Commission, which Judge Arre found to be inconclusive.
Bajardi, in a deposition, outlined his involvement in Hoboken issues, saying he first got involved in 2005 when he became aware of a possible redevelopment project near his home.
Pincus said her belief that Bajardi was paid for political work came from a source she declined to identify, but she acknowledged in court testimony that she never reached out to either Bajardi or Mason for comment before making a post calling him a paid operative.
Arre said such an oversight did not rise to the level of willful disregard for the truth.
Also importantly, Arre ruled that Bajardi was unable to support his allegation that the blog comments had negatively affected his employment. He is still employed on 1010 WINS and serves as the overnight anchor of the station.
Bajardi did not call any witnesses from 1010 WINS or provide evidence of pecuniary damages he had sustained.
One interesting plot twist that came out of the trial involved new information about a criminal case involving a former City Hall employee.
In November 2011, city Information Technology manager Patrick Ricciardi was arrested by the FBI and charged with illegally intercepting Mayor Zimmer’s emails and forwarding them to unnamed current and former city officials. (It was never made public whether they were sent to political enemies or to people who had a monetary interest, and the motives of passing them along were never publicly revealed.)
Ricciardi kept a separate file for copies of the emails. He pleaded guilty in 2013 to accessing a computer without authorization, interception of electronic communications, and disclosure of intercepted electronic communications and was sentenced to five years’ probation.
Zimmer’s office had called in the FBI after they became suspicious that private information had been leaked.
Stephen Katzman, Pincus’ attorney, said in an interview on Wednesday that only one of the statements at issue in the trial came remotely closely to a defamatory meaning — a February 2012 comment on the Galloway Patch website in which his client asserted that Bajardi “has been questioned by the FBI, and is believed to be part of a criminal conspiracy to steal our mayor’s email.”
Bajardi has maintained that he was not involved in Ricciardi’s scheme, and Ricciardi testified to the same effect at the trial.
But included in the avalanche of personal emails Bajardi turned over to Pincus and Brice was a lone email that had, as an attachment, PDF copies of Zimmer’s email correspondence that may have originally been leaked illegally. The email, a copy of which was obtained by the Reporter, was forwarded to Bajardi by the proprietor of a local news website. There is no evidence that the owner of the news website, or Bajardi, knew that the documents were originally obtained by illicit methods. The news website often criticizes Zimmer.
The attached emails had been exchanged among Zimmer and local fire officials about a recently released audit. Union negotiations were taking place around that time.
Katzman presented the emails during cross-examination, arguing that they established a connection between Bajardi and the email skimming conspiracy.
City emails are considered public documents subject to the Open Public Records Act, but OPRA requests typically take seven business days to receive a response, and must specify exactly which documents they seek. Because the package of Zimmer emails was forwarded to Bajardi only four days after the last one had been written (two of which were weekend days), Katzman argued that they could only have been obtained illegally.
Judge Arre stated in his Feb. 10 dismissal ruling that “there was…evidence of stolen emails, subject of the FBI investigation, which were present on Mr. Bajardi’s email account.” No one other than Ricciardi was ever indicted in the scheme.
On Thursday, Zimmer confirmed that she would have appeared as a witness and answered questions regarding the emails, had the trial been allowed to continue. According to Katzman, Zimmer would have testified that both the website owner and Bajardi had no authority to possess the emails.
Zimmer also said she was “going to be asked about the information that [she] provided to the FBI at their request concerning who [she] believed would have had a particular interest in obtaining the stolen e-mail data…and who therefore might be involved in some manner with the theft.”
The emails were not crucial as trial evidence, since the burden was already on Bajardi to prove his antagonists knew they were lying.
According to the emails entered in court, the local website owner who sent the emails to Bajardi received the packet of Zimmer’s internal emails from an account registered under the pseudonym “HC Sidemouth.” In correspondence with the others, “Sidemouth” displays familiarity with the inner workings of Hoboken city government, refers to him or herself as a citizen of Hoboken, and explains that he or she cut and pasted Zimmer’s emails from a purported OPRA request because “I didn’t want my name out there.”
The 2011 U.S. Department of Justice complaint against Ricciardi identified one former city official and one then-current city official as alleged recipients of stolen emails forwarded by Ricciardi. None of the individuals have been identified by name.
Implications for the future
While none of the statements targeting the Bajardis rose to the standard of defamation in Judge Arre’s estimation, some in Hoboken still believe they are inappropriate.
“I believe very strongly in political debate,” said Councilwoman Mason, “but debate should be around policy, factual information, that type of thing. I do not believe that it should be about one’s children or personal things.”
“I believe that all discourse, political and otherwise should be both civil and honest,” said Mayor Zimmer, “and it is unfortunate that in Hoboken this has not always been the case.”
Observers have suggested that allowing this sort of discourse may have a chilling effect on good people getting involved in local politics, who may not want to be subject to such vitriol.
Zimmer said she has seen many “inappropriate and counter-productive” comments over the years from both her opponents and her supporters.
When it came to harsh rhetoric, Zimmer alleged that Lane Bajardi gave as good as he got.
“While Mr. Bajardi has claimed he is an innocent victim of the unfortunate climate that sometimes characterizes our political discourse,” Zimmer alleged in an email that he was “one of the most prominent perpetrators with a substantial personal role in creating that unfortunate climate.” She charged that Bajardi had made a disparaging reference to her husband in at least one online post under a screen name.
Carlo Davis may be reached at firstname.lastname@example.org.