Nassau County, New York, Acting Supreme Court Justice John Galasso no doubt meant well. But somebody, a law clerk, a colleague, someone, should have warned him that he was about to open up a huge can of whup ass.
Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school.
The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner.
In fairness, there is nothing in Justice Galasso’s background to suggest he’s ever worked with the First Amendment’s right to a free speech and free press.
- Law Firm of John Michael Galasso, 1978 to 1991
- Hearing Officer, Town of Oyster Bay Environmental Review Board, 1978 to 1991
- Assistant District Attorney, Nassau County, 1969 to 1978
State court judges don’t get a lot of call for deciding constitutional issues; their work is much more banal, nuts and bolts law. Sure, his time as a prosecutor no doubt involved constitutional issues, but other Amendments than the First. So when he issued an order to the Daily News, he may well not have been thinking it through.
Then again, he should have considered a few things that he apparently didn’t.
The decision by state Supreme Court Justice John Galasso came as part of a countersuit filed by Eric Lerner against his former co-worker Jessica Pelletier. The Daily News is not a party to either lawsuit.
Lack of familiarity with the First Amendment is one thing. But jurisdiction? The Daily News wasn’t subject to his jurisdiction. While some judges seem to have a general impression that their powers extend wherever they want them to extend, they have certain fairly obvious limits. Foremost among them is they can’t issue orders requiring non-parties to do anything. Not good things. Not bad things. Nothing. They are not within the ambit of their jurisdiction just because the judge says so.
In a cute bit of meta-journalism, the Daily News interviews itself about this peculiar state of affairs.
The Daily News plans to immediately appeal the decision and seek a stay of his temporary restraining order pending a scheduled May 16 hearing on the matter, said Daily News Deputy General Counsel Matthew Leish.
“It is surprising and disturbing that a court would order a non-party newspaper to take down information about a publicly filed lawsuit. We are optimistic that the ruling will be reversed on appeal,” Leish said.
How this might work procedurally isn’t nearly so clear. The flip side of a judge issuing an order to a non-party to do something is that they’re a non-party when they want to challenge the judge’s order. The News would first need standing to intervene, which means they would have to obtain the court’s approval for sticking their nose into somebody else’s litigation.
But the judge ordered them to do something, so how could that be possible? Darn good question, and that’s the sort of questions that arise when a judge does something beyond his authority, outside the law and for which there are no procedures.
For the judge, blowing it is easy. Write words into an order directing the Daily News to print on pink paper with comic sans font and, boom, it’s an order. Justice Galaso signs it and, given the majesty of the law, it’s for real. Will the cops get called in to enforce it? Will the judge now order a daily fine of ten gazillion dollars a day until done? Who knows?
And then there’s the question of whether a judge can order a newspaper to take down a story that it published that comes fully, unquestionably, undeniably within the parameters of its First Amendment protections. This was a story about a lawsuit, which is inherently of public interest, and was kinda weird and interesting story/social commentary regardless.
Pelletier, 23, of Rocky Hill, Conn., charged she was demoted and then fired after complaining to her bosses about alleged raunchy treatment from her colleagues.
Her suit charged she was sexually harassed, taunted about her fight with breast cancer — and ridiculed for her Catholic faith.
She was let go after 20 months with the company. According to her lawsuit, Tikun Olam management charged that she had “an attitude” by reacting badly to the inappropriate comments of her bosses.
Lerner, in his filing, insisted the Pelletier filing was an aggregation of lies intended to ruin his reputation. A Tikun Olam attorney said six months ago that the Pelletier lawsuit was “frivolous.”
Sounds interesting, right? And for reasons that are, at least at the moment, unclear, Lerner wanted to cleanse his name from the internet and Justice Galasso said “Well, okay then. Daily News, make it happen.”
Did Justice Galasso consider the First Amendment, not to mention jurisdictional, issues when issuing this “improvident”* order? If not, then there’s a very serious problem with his wearing a robe and being allowed to make decisions about law stuff. If so, then there’s a similarly serious, but very different, issue arising from a Republican political boss appointing him as judge, voters electing the incumbent to the position twice, and a liberal former Chief Judge of the Court of Appeals designating this elected District Court Judge to be an Acting Supreme.
Eric Lerner doesn’t like his name associated with this sordid story of a 23-year-old woman claiming sexual harassment? Who would? Win the case and the problem is solved, but the one thing you can’t accomplish is forcing a newspaper to remove your name because, hey, it’s unpleasant.
The Daily News isn’t going to do it. If anything, this will Streisand Lerner’s name across the internet. And Justice John Galasso’s too, which is going to make it really hard when he has to get a new job after everyone knows how badly he sucked at his current one.
Update: Eugene Volokh gives a decent, if labored, discussion of the case background and law.
Update 2: Here’s the Daily News’ notice of appeal and the transcript of the order appealed from.
Even on other aspects, Facebook, something gets published on Facebook or Twitter or something like that, even if it’s false, people are harassed out of their houses, they are chanted in stores. This is not what America is about, and it has to be decided by a higher authority, all of this set aside. Nobody wants to limit the First Amendment rights from freedom of speech, but you don’t want chaos either.
The “chaos” exception to the First Amendment? Who knew? H/T Tim Cushing.
*”Improvident” is an appellate term of art in the law, meaning “how could you have done something so totally boneheaded, you dumbass?”
H/T Brad Heath