The Brooklyn Machine vs. the First Amendment

A nursing home operator who says he was defamed in ProPublica is ignoring the publisher with deep pockets and instead taking aim at two freelance investigative reporters.

Donald Trump memorably threatened to “open up” libel laws as president, yet such an attack on the First Amendment would need to happen in the courts. And given a recent ruling in his favor in a defamation suit aimed at him, Trump knows full well that most judges maintain a very high bar for libel cases.

Even so, a libel suit can provide powerful interests with a potent weapon against intrepid reporters. Such a conflict is currently playing out in Brooklyn, and the drama features a notable cast of characters.

In October 2015, ProPublica published an investigative report on nursing home licensing in New York, which focused on the state’s largest for-profit network of such facilities, SentosaCare. The story questioned why, despite “a record of repeat fines, violations and complaints for deficient care,” SentosaCare continued to receive state approval when purchasing new nursing homes.

In March 2016, Jennifer Lehman, one of the two freelance reporters who wrote the piece, sent a letter to SentosaCare’s attorney, Howard Fensterman, requesting information for a follow-up story focused on the company’s Medicare billing. Six days later, Fensterman filed a defamation suit in response to the October 2015 story.

Rather than target ProPublica, the complaint names Lehman and her fellow freelancer, Allegra Abramo. If the suit was intended to win damages, it would have made sense to target an established publisher with a sizable libel-insurance policy. Instead, the goal here appears to be stopping the reporters in their tracks.

Fensterman, a leading player in Nassau County Democratic politics, gained notoriety in 2014 for his aggressive defense of a nursing home on the Island after it brought in a male stripper to entertain the seniors. He is also counsel for (and a business partner of) SentosaCare, which is owned by Brooklyn resident Benjamin Landa, a central figure in Clifford Levy’s Pulitzer Prize-winning 2002 series in the New York Times exposing the harsh conditions faced by mentally ill residents in New York nursing homes.

Fensterman has been assisted in the case by his law partner Frank Seddio, the Brooklyn Democratic boss and president of the borough’s Bar Association. In New York City, the county machine typically hand-picks most of the State Supreme Court judges, but the one presiding in this case, Paul Wooten, was transferred from Manhattan, and is not a Seddio ally. Moreover, he has a strong track record of ruling in favor of defendants in defamation cases.

Such a cast made for lively theater at a late April appearance in Wooten’s courtroom, with the two sides debating the defendants’ motion to dismiss the case. Other than enter his name into the record, Seddio said nothing during the proceeding. According to one spectator (who’s not involved in the case), the party boss appeared to be “leering” at Judge Wooten.

The crux of Fensterman’s complaint concerns not what’s in Lehman and Abramo’s ProPublica story, but what they left out (or what’s known as libel by omission). When the story mentions investigations by New York State agencies into incidents of neglect at SentosaCare facilities, it does not include the fact that those same facilities had “self-reported” the incidents to the relevant agencies.

In advance of the first story, Fensterman had provided that information to the reporters, so he contends that the omission shows that the reporters intended to create reputational harm for SentosaCare. To drive home the point, he mentioned “self-reporting” five times in his short presentation at the dismissal hearing.

Laura Handman, retained by ProPublica to defend Lehman and Abramo, stressed to Judge Wooten that the piece is not a “cover-up” story. Instead, she explained, the reporters examined how nursing homes with track records of harmful incidents continue to gain new licensing, thus negating the importance of the self-reporting. According to defamation case law, Handman argued, unless omitted information “changes the gist, or the meaning, or makes it false, then the decision of what to include or not to include are left to the wisdom of the journalist and publisher.”

Trevor Timm of the Freedom of the Press Foundation tells the Beast that in general, “The First Amendment allows for broad editorial discretion on what is and isn’t reported on stories of public importance. And if public figures and institutions were allowed to sue every time they thought one ancillary alleged fact or another was left out of an article, it would grind journalism on any subject to a halt.”

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In order to deter such a flood of retaliatory lawsuits, many states—including New York—have enacted anti-SLAPP (strategic lawsuits against public participation) legislation, which allows for judges to award damages to defendants and force plaintiffs to pay for their legal costs. As Handman stated at the April hearing, “This suit is a classic example of a well-financed company using a defamation suit to basically censor their critics. In short, a classic SLAPP action.”

Wooten’s ruling on whether the case will go to trial—or if not, whether he will impose anti-SLAPP penalties on the plaintiffs—is expected sometime in the next few months. Rest assured that the stakes are high for everyone involved, from the lowly freelance investigative reporters to the mighty Brooklyn Democratic Party boss.