In February 2012, the New York Court of Appeals — New York State’s court of last resort — held that where individuals, with an intent to blackmail or extort from a wrongdoer, truthfully report, to governmental officials, wrongdoing that is of public interest, no absolute privilege shields those individuals from liability to the wrongdoer for prima facie tort and tortious interference with prospective contractual rights. Posner v. Lewis, 2012 N.Y. Slip Op. 01323 (N.Y. Feb. 21, 2012) (Graffeo, J.) (7-0 decision, with three Justices concurring only in result).
In Posner, the plaintiff individual alleged as follows. The plaintiff was employed as a nontenured, public elementary school teacher. The defendant individuals, who were the plaintiff’s father-in-law and brother-in-law, wrote letters to the State Department of Education, to the superintendent of the local board of education, and to each member of the local board of education truthfully stating, and attaching materials documenting, that the plaintiff engaged in a sexual relationship with the parent of one of his students, and that the plaintiff recommended this paramour to be a substitute teacher in the plaintiff’s class. In their letters, the defendants (also referred to in this post as “the defendant in-laws”) demanded that school officials severely discipline the plaintiff and revoke his teaching license.
Further, after the defendants dispatched these letters, the plaintiff teacher’s brother-in-law, who was a lawyer, purportedly telephoned the school district superintendent ” ‘demanding to know what was going on in the investigation [of the plaintiff] and what disciplinary actions were being taken.’ ” Because of the defendant in-laws’ actions, the local department of education informed the plaintiff that it intended to deny his application for tenure. As a result, before the final vote on his application for tenure, the plaintiff resigned from his employment.
The plaintiff in Posner alleged that the defendant in-laws made the above-mentioned (truthful) communications to school officials, “designed to effectuate the denial of [the plaintiff teacher’s] tenure and the revocation of his teaching license,” as part of a coercive scheme to compel the plaintiff to relinquish all parental rights to the newborn daughter of the plaintiff and his estranged wife. The plaintiff’s estranged wife was one defendant’s daughter and the other defendant’s sister. The plaintiff’s wife had sued the plaintiff for a divorce.
Specifically, the plaintiff teacher in Posner charged that, when he refused to accede to the defendant in-laws’ demand that he give up his parental rights to his and his estranged wife’s infant daughter, the defendants made good on their threat to reveal the plaintiff’s adulterous relationship with a co-worker to school authorities to ensure that he was denied tenure.
In Posner, the New York Court of Appeals affirmed the Appellate Division’s order affirming the Supreme Court’s order denying the defendants’ motion to dismiss, for failure to state a claim, the plaintiff’s complaint’s causes of action for prima facie tort and tortious interference with prospective contractual rights. The Posner Court found that the matters the defendants truthfully disclosed to school officials — that the plaintiff engaged in an adulterous affair with the mother of one of his students, and that the plaintiff recommended this paramour to be a substitute teacher in the plaintiff’s class — were “matter[s] of public interest.”
Moreover, the Posner Court acknowledged its holding, in Brandt v. Winchell, 3 N.Y. 628 (N.Y. 1958), that people “are immune from civil liability for instigating official action . . . , regardless of whether they possessed a malicious intent.” See Brandt, 3 N.Y.2d at 634-636.
The Posner Court, however, distinguished its Brandt decision on the ground that here, “[the plaintiff teacher’s] complaint does not merely allege a malicious motive; rather, it asserts what is essence a blackmail scheme.” The New York Court of Appeals observed, “To the extent defendants claim that [their truthful disclosures to governmental officials are] entitled to immunity under the First Amendment [to the U.S. Constitution], we note that it has been consistently held that blackmail and extortion are not protected speech.”
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