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Being Called an Informant Not Defamation
On November 25, 2009, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a suit filed by a prisoner who claimed that he was defamed when two newspapers reported that he intended to cooperate with authorities.
Shemtov Michtavi sued the New York Daily News and the Polish Daily News for defamation after both reported that he intended to inform on a co-defendant of his. The district court dismissed Michtavi’s suit and the Second Circuit affirmed. Under New York Law, the Second Circuit held, it is not defamatory to call someone an informant because a snitch is not reprehensible in the minds of “right-thinking persons.”
See: Michtavi v. New York Daily News, 08-2111-CV (2nd Cir. 2009).
Shemtov Michtavi sued the New York Daily News and the Polish Daily News for defamation after both reported that he intended to inform on a co-defendant of his. The district court dismissed Michtavi’s suit and the Second Circuit affirmed. Under New York Law, the Second Circuit held, it is not defamatory to call someone an informant because a snitch is not reprehensible in the minds of “right-thinking persons.”
See: Michtavi v. New York Daily News, 08-2111-CV (2nd Cir. 2009).
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Related legal case
Michtavi v. New York Daily News
| Year | 2009 |
|---|---|
| Cite | 587 F.3d 551 (2nd Cir. 2009) |
| Level | Court of Appeals |
| Injunction Status | N/A |
PDF Document West Reporter Image (PDF)
587 F.3d 551, 37 Media L. Rep. 2591
Briefs and Other Related Documents
Judges and Attorneys
United States Court of Appeals,
Second Circuit.
Shemtov MICHTAVI, Plaintiff-Appellant,
v.
NEW YORK DAILY NEWS, The Polish Daily News, Mathew Kalman, Does # 1-# 10, Defendants-Appellees.
Docket No. 08-2111-cv.
Submitted: Oct. 23, 2009.
Decided: Nov. 25, 2009.
Background: Prisoner brought pro se action against newspaper publishers, asserting state-law claims for defamation and intentional infliction of emotional distress. The United States District Court for the Southern District of New York, 2008 WL 754694, Leonard B. Sand, J., entered order dismissing action, and prisoner appealed.
Holding: The Court of Appeals, Jacobs, Chief Judge, held that newspaper report was not defamatory.
Affirmed.
West Headnotes
[1] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k6 Actionable Words in General
Key Number Symbol237k6(1) k. In general. Most Cited Cases
Newspaper report claiming that prisoner incarcerated on narcotics charges planned to cooperate with prosecutors was not defamatory under New York law; right-thinking persons would not think ill of prisoner for legitimately cooperating with law enforcement.
[2] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k6 Actionable Words in General
Key Number Symbol237k6(1) k. In general. Most Cited Cases
Under New York law, a statement is defamatory only if it would expose an individual to shame in the minds of right-thinking persons.
[3] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k19 k. Construction of language used. Most Cited Cases
To test for defamation under New York Law, courts construe the words as they would be read and understood by the public to which they are addressed.
*551 Shemtov Michtavi, White Deer, PA, pro se, for Appellant.
Marion Bachrach, Dana Moskowitz, DePetris & Bachrach, LLP, New York, NY; Laura R. Handman, Davis Wright Tremaine LLP, Washington, DC; Anne B. Carroll, Deputy General Counsel, Daily News, L.P., New York, NY, for Appellees.
Before: JACOBS, Chief Judge, KEARSE, Circuit Judge, and GARDEPHE, FN* District Judge.
FN* Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation.
DENNIS JACOBS, Chief Judge:
Shemtov Michtavi, pro se, alleges defamation and intentional infliction of emotional distress based on news reports, published by the New York Daily News and the Polish Daily News, that Michtavi, who is incarcerated, planned to cooperate with prosecutors. Michtavi appeals from the judgment of the United States District Court for the Southern District of New York (Sand, J.) dismissing the complaint for failure to state a claim on which relief could be granted, under Fed.R.Civ.P. 12(b)(6). Michtavi v. New York Daily News, No. 06-Civ-8260, 2008 WL 754694, at **1-2, 2008 U.S. Dist. LEXIS 24997, *2-5 (S.D.N.Y. Mar. 12, 2008). The district court held that the reports could not be defamatory under New York law, and we agree.
*552 I
Michtavi is serving a twenty-year prison sentence for narcotics offenses. In March 2006, the defendant newspapers reported [i] that he was a ?key lieutenant? of Ze'ev Rosenstein, an organized crime figure, and [ii] that Michtavi planned to cooperate with prosecutors and testify against Rosenstein. Id. at *1, 2008 U.S. Dist. LEXIS 24997, at *1-2.
Michtavi, a citizen of Israel, invoked diversity jurisdiction. This matter is governed by New York law.
Michtavi does not contest on appeal the dismissal of any claim stemming from the statement that he was a ?key lieutenant? of Rosenstein. Any such claim is waived. Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998). Michtavi's remaining claim, stemming from the report that he planned to cooperate with the authorities, fails on the ground that the statement is, as a matter of law, not defamatory.
II
[1] Headnote Citing References[2] Headnote Citing References ?Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance.? See Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 (N.Y.1985). Under New York law, a statement is defamatory only if it would expose an individual to shame ?in the minds of right-thinking persons.? Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217, 218 (1933); see also Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d Cir.2000). It is becoming increasingly hard to ascertain as a matter of law what a right-thinking person would think, and the line of cases has drawn some scholarly criticism. See, e.g., Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L.Rev. 1, 20-28 (1996).
[3] Headnote Citing References To test for defamation, courts construe the words ?as they would be read and understood by the public to which they are addressed.? November v. Time, Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126, 128 (1963). The newspapers may not have been addressed specifically to the prison population, but that is clearly the group whose good opinion matters to Michtavi. However, ?[t]he fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough [to make the statement defamatory] if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.? Restatement (Second) of Torts § 559, cmt. e (1977).
The population of right-thinking persons unambiguously excludes ?those who would think ill of one who legitimately cooperates with law enforcement.? Agnant v. Shakur, 30 F.Supp.2d 420, 424 (S.D.N.Y.1998) (Mukasey, J.) (noting that every American court surveyed has held that identifying someone as a government informant is not defamatory as a matter of law); see also Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327, 329-30 (1941) (?At most the language claimed to have been used accuses the plaintiff of giving information of violations of the law to the proper authorities. Are such acts reprehensible? Is such language defamatory? This court thinks not.?).
We therefore agree with the district court that as a matter of law the defendants' reports were not defamatory. Michtavi's other arguments are likewise without merit. For the foregoing reasons, we affirm.
C.A.2 (N.Y.),2009.
Michtavi v. New York Daily News
587 F.3d 551, 37 Media L. Rep. 2591
Briefs and Other Related Documents (Back to top)
? 2009 WL 1996165 (Appellate Brief) Brief (Jan. 15, 2009) View and print document in PDF format exactly like the original filing Original Image of this Document with Appendix (PDF)
? 2008 WL 6543447 (Appellate Brief) Joint Brief of Defendants-Appellees (Nov. 24, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
? 2008 WL 6543446 (Appellate Brief) Brief (Oct. 21, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document with Appendix (PDF)
? 08-2111 (Docket) (Apr. 30, 2008)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
# Jacobs, Hon. Dennis
United States Court of Appeals, Second Circuit
New York
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
# Kearse, Hon. Amalya L.
United States Court of Appeals, Second Circuit
New York
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
# Sand, Hon. Leonard B.
United States District Court, Southern New York
New York
Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
Attorneys
Attorneys for Appellee
# Bachrach, Marion J.
New York, New York
Litigation History Report | Profiler
# Carroll, Anne Berrill
New York, New York
Litigation History Report | Profiler
# Handman, Laura R.
Washington, District of Columbia
Litigation History Report | Profiler
END OF DOCUMENT
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© 2010 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
587 F.3d 551, 37 Media L. Rep. 2591
Briefs and Other Related Documents
Judges and Attorneys
United States Court of Appeals,
Second Circuit.
Shemtov MICHTAVI, Plaintiff-Appellant,
v.
NEW YORK DAILY NEWS, The Polish Daily News, Mathew Kalman, Does # 1-# 10, Defendants-Appellees.
Docket No. 08-2111-cv.
Submitted: Oct. 23, 2009.
Decided: Nov. 25, 2009.
Background: Prisoner brought pro se action against newspaper publishers, asserting state-law claims for defamation and intentional infliction of emotional distress. The United States District Court for the Southern District of New York, 2008 WL 754694, Leonard B. Sand, J., entered order dismissing action, and prisoner appealed.
Holding: The Court of Appeals, Jacobs, Chief Judge, held that newspaper report was not defamatory.
Affirmed.
West Headnotes
[1] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k6 Actionable Words in General
Key Number Symbol237k6(1) k. In general. Most Cited Cases
Newspaper report claiming that prisoner incarcerated on narcotics charges planned to cooperate with prosecutors was not defamatory under New York law; right-thinking persons would not think ill of prisoner for legitimately cooperating with law enforcement.
[2] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k6 Actionable Words in General
Key Number Symbol237k6(1) k. In general. Most Cited Cases
Under New York law, a statement is defamatory only if it would expose an individual to shame in the minds of right-thinking persons.
[3] Headnote Citing References KeyCite Citing References for this Headnote
Key Number Symbol237 Libel and Slander
Key Number Symbol237I Words and Acts Actionable, and Liability Therefor
Key Number Symbol237k19 k. Construction of language used. Most Cited Cases
To test for defamation under New York Law, courts construe the words as they would be read and understood by the public to which they are addressed.
*551 Shemtov Michtavi, White Deer, PA, pro se, for Appellant.
Marion Bachrach, Dana Moskowitz, DePetris & Bachrach, LLP, New York, NY; Laura R. Handman, Davis Wright Tremaine LLP, Washington, DC; Anne B. Carroll, Deputy General Counsel, Daily News, L.P., New York, NY, for Appellees.
Before: JACOBS, Chief Judge, KEARSE, Circuit Judge, and GARDEPHE, FN* District Judge.
FN* Paul G. Gardephe, of the United States District Court for the Southern District of New York, sitting by designation.
DENNIS JACOBS, Chief Judge:
Shemtov Michtavi, pro se, alleges defamation and intentional infliction of emotional distress based on news reports, published by the New York Daily News and the Polish Daily News, that Michtavi, who is incarcerated, planned to cooperate with prosecutors. Michtavi appeals from the judgment of the United States District Court for the Southern District of New York (Sand, J.) dismissing the complaint for failure to state a claim on which relief could be granted, under Fed.R.Civ.P. 12(b)(6). Michtavi v. New York Daily News, No. 06-Civ-8260, 2008 WL 754694, at **1-2, 2008 U.S. Dist. LEXIS 24997, *2-5 (S.D.N.Y. Mar. 12, 2008). The district court held that the reports could not be defamatory under New York law, and we agree.
*552 I
Michtavi is serving a twenty-year prison sentence for narcotics offenses. In March 2006, the defendant newspapers reported [i] that he was a ?key lieutenant? of Ze'ev Rosenstein, an organized crime figure, and [ii] that Michtavi planned to cooperate with prosecutors and testify against Rosenstein. Id. at *1, 2008 U.S. Dist. LEXIS 24997, at *1-2.
Michtavi, a citizen of Israel, invoked diversity jurisdiction. This matter is governed by New York law.
Michtavi does not contest on appeal the dismissal of any claim stemming from the statement that he was a ?key lieutenant? of Rosenstein. Any such claim is waived. Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir.1998). Michtavi's remaining claim, stemming from the report that he planned to cooperate with the authorities, fails on the ground that the statement is, as a matter of law, not defamatory.
II
[1] Headnote Citing References[2] Headnote Citing References ?Whether particular words are defamatory presents a legal question to be resolved by the court in the first instance.? See Aronson v. Wiersma, 65 N.Y.2d 592, 594, 493 N.Y.S.2d 1006, 483 N.E.2d 1138 (N.Y.1985). Under New York law, a statement is defamatory only if it would expose an individual to shame ?in the minds of right-thinking persons.? Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217, 218 (1933); see also Celle v. Filipino Reporter Enters., 209 F.3d 163, 177 (2d Cir.2000). It is becoming increasingly hard to ascertain as a matter of law what a right-thinking person would think, and the line of cases has drawn some scholarly criticism. See, e.g., Lyrissa Barnett Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L.Rev. 1, 20-28 (1996).
[3] Headnote Citing References To test for defamation, courts construe the words ?as they would be read and understood by the public to which they are addressed.? November v. Time, Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126, 128 (1963). The newspapers may not have been addressed specifically to the prison population, but that is clearly the group whose good opinion matters to Michtavi. However, ?[t]he fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough [to make the statement defamatory] if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.? Restatement (Second) of Torts § 559, cmt. e (1977).
The population of right-thinking persons unambiguously excludes ?those who would think ill of one who legitimately cooperates with law enforcement.? Agnant v. Shakur, 30 F.Supp.2d 420, 424 (S.D.N.Y.1998) (Mukasey, J.) (noting that every American court surveyed has held that identifying someone as a government informant is not defamatory as a matter of law); see also Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327, 329-30 (1941) (?At most the language claimed to have been used accuses the plaintiff of giving information of violations of the law to the proper authorities. Are such acts reprehensible? Is such language defamatory? This court thinks not.?).
We therefore agree with the district court that as a matter of law the defendants' reports were not defamatory. Michtavi's other arguments are likewise without merit. For the foregoing reasons, we affirm.
C.A.2 (N.Y.),2009.
Michtavi v. New York Daily News
587 F.3d 551, 37 Media L. Rep. 2591
Briefs and Other Related Documents (Back to top)
? 2009 WL 1996165 (Appellate Brief) Brief (Jan. 15, 2009) View and print document in PDF format exactly like the original filing Original Image of this Document with Appendix (PDF)
? 2008 WL 6543447 (Appellate Brief) Joint Brief of Defendants-Appellees (Nov. 24, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document (PDF)
? 2008 WL 6543446 (Appellate Brief) Brief (Oct. 21, 2008) View and print document in PDF format exactly like the original filing Original Image of this Document with Appendix (PDF)
? 08-2111 (Docket) (Apr. 30, 2008)
Judges and Attorneys (Back to top)
Judges | Attorneys
Judges
# Jacobs, Hon. Dennis
United States Court of Appeals, Second Circuit
New York
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
# Kearse, Hon. Amalya L.
United States Court of Appeals, Second Circuit
New York
Litigation History Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
# Sand, Hon. Leonard B.
United States District Court, Southern New York
New York
Litigation History Report | Judicial Motion Report | Judicial Reversal Report | Judicial Expert Challenge Report | Profiler
Attorneys
Attorneys for Appellee
# Bachrach, Marion J.
New York, New York
Litigation History Report | Profiler
# Carroll, Anne Berrill
New York, New York
Litigation History Report | Profiler
# Handman, Laura R.
Washington, District of Columbia
Litigation History Report | Profiler
END OF DOCUMENT
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