Score for Chasidic Sex Abuse Whistleblower in Forward Suit

By Amy Sara Clark
Jewish Week
February 25, 2016

http://www.thejewishweek.com/news/new-york/score-one-chasidic-sex-abuse-whistleblower-forward-lawsuit

Sam Kellner's defamation suit against The Jewish Daily Forward lives to fight another day.

Earlier this week, Manhattan Supreme Court Judge Debra A. James denied the newspaper's motion to dismiss the case, which was filed by Kellner in November 2014. In 2008, Kellner brought allegations of his son’s sexual abuse by Baruch Lebovits to the police and worked closely with law enforcement to bring forward additional Lebovits victims. Lebovits was convicted in 2010 and sentenced to 10 ? to 32 years in prison but that conviction was overturned on a prosecution error (Lebovits took a plea deal in 2014). In 2011, Kellner was indicted for perjury and extortion related to the Lebovits case but in 2014 those charges were dropped.

The defamation suit concerns a 2013 article written by Paul Berger, “Sam Kellner’s Tangled Hasidic Tale of Child Sex Abuse, Extortion and Faith,” and a tweet, mistakenly referring to Kellner as a convicted extortionist. Kellner’s complaint alleged that Berger defamed him by “falsely reporting that contents of certain ‘secret’ recordings revealed that” Kellner “was engaged in criminal conduct” and the tweet, which went uncorrected by the paper for six days after they were alerted to the error.

The judge also ruled that Kellner is a private person, not a public figure, who "was drawn into the the public forum against his will in order to obtain redress for his son, and then to defend himself.” The distinction is key because that means Kellner needs to show only that The Forward acted negligently rather than with actual malice.

The Forward sought to have the case dismissed on the grounds that the article was purely opinion, and thus protected speech. It also argued that the mistaken language of the tweet was inadvertent and not intended to defame Kellner.

Justice James rejected the claim that the article was an opinion piece but, rather, based on undisclosed and/or misrepresented facts. As for the tweet, James ruled that its “required intent cannot be determined on these motion papers.”

Andrew T. Miltenberg, a founding partner of Nesenoff & Miltenberg, LLP and a veteran trial law lawyer who focuses his practice on complex commercial litigation and civil rights told the Jewish Week, "That the Court finds that Kellner is [not] a public figure, whether general purpose or otherwise, is critical. To have held otherwise would have had the effect of frightening the general public away from reporting crimes or otherwise comfortably being a being a witness to events of great import. I am encouraged by the fact the Court would not allow the father of an abuse victim to be silenced or discredited."

Responding to the lawsuit in November of 2014, Samuel Norich, The Forward’s publisher and CEO, said the paper stands by it.

“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.”

A preliminary hearing is set to take place on April 5th.

Hella Winston contributed to this report.