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CHAIKEN v. VV PUBL. CORP.

October 18, 1995

JOHN CHAIKEN AND MARILYN CHAIKEN, Plaintiffs, against VV PUBLISHING CORPORATION d/b/a THE VILLAGE VOICE, Defendant.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiffs John and Marilyn Chaiken sue Defendant VV Publishing Corporation d/b/a The Village Voice ("Voice") for libel and intentional infliction of emotional distress arising from a 1985 article published in the Voice, a weekly New York newspaper. The case was originally filed by the Chaikens in Massachusetts state court in 1988 against four defendants: the Voice, Robert I. Friedman -- the author of the article -- Modiin Publishing House d/b/a Maariv ("Maariv"), and Ron Dagony. Maariv, an Israeli newspaper, had also published an article written by Dagony which included excerpts from the Voice article. After the Defendants removed the case to Massachusetts federal court, the court granted Maariv's and Dagony's motions to dismiss for lack of personal jurisdiction. In March, 1991, the case was transferred to the Southern District of New York. Judge John F. Keenan subsequently dismissed the Complaint against Friedman because New York's one year limitations period for defamation claims had expired. See Chaiken v. VV Publishing Corp., 1991 U.S. Dist. LEXIS 12159, 1991 WL 177269, *2-3 (S.D.N.Y. Sept. 4, 1991) (Keenan, J.). After an extensive and often bitter discovery period before three District Judges and two Magistrate Judges, the Voice now moves for summary judgment on Plaintiffs' remaining libel and intentional infliction of emotional distress claims.

 Many of the relevant facts are not disputed. *fn1" The Chaikens are American emigres who relocated to Israel from Boston in 1984. After a brief stay at an absorption center, the Chaikens moved to Hebron. Hebron is located on the West Bank and is a hotbed of Arab-Israeli conflict. *fn2" The Chaikens decided to live in Hebron "because it is a very spiritual thing to be able to live a five minute walk from the second holiest place in the world to the Jewish people." Deposition of Marilyn Chaiken, September 6, 1993 ("M. Chaiken Dep."), at pp. 54-55. In 1990, John Chaiken was diagnosed with a brain tumor, and he passed away in 1991. Marilyn Chaiken remains in Hebron, where she lives with their eight children.

 The Voice is a weekly newspaper published by VV Publishing Corporation, a New York corporation. The Voice publishes articles on a broad spectrum of topics, including politics, culture, and lifestyle. In 1985, over 81% of its total U.S. circulation of 147,000 was in the New York metropolitan area, while 2% was in Massachusetts. See Affidavit of David A. Schneiderman, President and Publisher of the Voice, dated December 23, 1994 ("Schneiderman Aff."), at PP 6,8,10.

 A. Friedman's Relationship With The Voice

 In 1983, Friedman met with David Schneiderman, who was then Editor-in Chief and Publisher of the Voice. Friedman provided Schneiderman with information about his professional background and accomplishments, which included six articles published in a number of leading newspapers. See id. at Exs. 1-6. Friedman's work impressed Schneiderman, who commissioned Friedman to write articles for the Voice. Between 1983 and 1985 Friedman wrote eight articles for the Voice. Schneiderman found this work, which included Friedman's "coup" in obtaining an exclusive interview with Yassir Arafat, to be thorough and impressive. See id. at P 14. At the time the article at issue in this case was published, no article written by Friedman -- at the Voice or elsewhere -- had been the subject of a lawsuit. See Friedman Aff. at P 19.

 Although Friedman's status at the Voice is the subject of great dispute between the parties, the evidence submitted by the Voice is almost wholly uncontradicted. Friedman did not have a written contract with the Voice and was only paid for assigned articles on submission. In addition, he was not assigned specific topics by the Voice; rather, he would propose an idea to a senior editor, who would either approve or disapprove Friedman's choices. If the Voice decided not to publish an article, Friedman would receive a "kill-fee," which was typically between 25% and 50% of the full fee. See Schneiderman Aff. at P 17. Friedman was free to propose articles or ideas to publications other than the Voice, and he did receive income from other literary sources between 1983 and 1985. *fn3" See Friedman Aff. at P 15. In addition, Friedman received no fringe benefits from the Voice, had no taxes withheld, was not provided with an office, and was not listed on the masthead of the Voice as a "staff writer." See Schneiderman Aff. at PP 17-22.

 B. The Article

 In the Spring of 1985, the Voice approved Friedman's proposal to write an article about an upcoming trial of members of the "Jewish underground" who had committed acts of violence against West Bank Arabs, and the ideological and financial support provided to them by the American Jewish community. The defendants in that trial included Jews who had settled on the West Bank, army officers, and government officials. *fn4" Friedman then travelled to Israel to research the article. In Hebron and Kiryat Arba -- the home of several suspected "underground" members -- Friedman was directed to the Chaikens because they spoke English. See Friedman Aff. at P 38. After stating that he was a Voice reporter researching an article on Jewish settlers on the West Bank, Friedman spent an afternoon interviewing the Chaikens. Although Friedman took notes during the interview, he did not tape-record his conversations with the Chaikens.

 Friedman completed a draft of his article and submitted it to the Voice in the fall of 1985. A senior editor and the Editor of the Voice reviewed the article. Certain changes in structure and organization were discussed with Friedman, but no substantive changes were made. See id. at P 42. Schneiderman then reviewed the article and made certain queries regarding some of the technical facts, which were verified prior to publication. See Schneiderman Aff. at P 24. Finally, the article was copy edited to verify spellings, dates, and sources of information and underwent a legal review by the Voice's outside counsel. *fn5" See id. at PP 25-26.

 The resulting article was published in the November 12, 1985 edition of the Voice and is entitled "In the Realm of Perfect Faith: Israel's Jewish Terrorists." The front cover of the Voice reads "INSIDE THE JEWISH TERRORIST UNDERGROUND: How Fanatic Nationalists Are Tearing Israel Apart."6 The article begins with a description of Hebron and a neighboring Jewish settlement, Kiryat Arba, and the settlers who live in those heavily fortified enclaves. The article states that about 65% of the settlers are of American origin and that "most are fervent supporters of the major right-wing religious-nationalist organizations that dominate life on the West Bank -- Gush Emunim (Bloc of the Faithful) and Rabbi Meir Kahane's avowedly anti-Arab Kach Party." These organizations "have vowed to secure and defend the West Bank at any cost."

 The article then turns to the Chaikens: after providing a brief biographical sketch, it discusses their views on the settlers' right to own and live on the land to the exclusion of the Arabs. Friedman first recounts his conversation with John Chaiken. John states that Hebron is historically significant to the Jewish people and then gives a response to those who say it is unethical to force the Arabs to leave: "Western European values are bullshit. The messiah will come. There will be a Jewish kingdom. Jews will be the spiritual bosses of the world. . .You can't create a messianic Jewish state with 1.9 million Arabs." John then boasts of deliberately provoking the Arabs into violence in the hope that the Israeli army would respond by driving the Arabs out of the West Bank. John tells of an incident where he and 50 other armed settlers gave John's son a ritual haircut in a Mosque during Arab prayers, and then ate watermelon and spit the seeds all over the floor.

 In the next paragraph, Marilyn Chaiken states that "you have to live in the realm of perfect faith." To Marilyn, the Arab massacre of Jews in Hebron in 1929 was brought about because the Jews' "faith was imperfect, and because they had sex with Arabs." Marilyn then takes Friedman on a tour of Hebron, where she yells at and slaps an Arab child who is selling combs in front of a spot where a Jewish settler was murdered. Marilyn states "the Arabs are worse than the niggers -- but not by much." Friedman then quotes John as stating that it is an "outrage" that the Arabs are still in Hebron.

 The next paragraph is a transition to the rest of the article and states: "Settlers like the Chaikens have turned the more than 114 settlements that now dot the West Bank into hothouses for the growth of terrorism." Friedman writes that the Israeli authorities have recently uncovered six different Jewish undergrounds responsible for terrorist bombings and murders of Arabs across the West Bank. Most of these terrorist groups are affiliated with the Gush Emunim settlers movement and the Kach Party and continue to enjoy widespread support from Israeli society. Towards the end of the paragraph, an expert on West Bank affairs states "one day the settlers who support Gush Emunim or Kahane will commit an atrocity so grave that it will imperil Jews everywhere."

 The article then goes on to describe various Israeli terrorist groups and profiles West Bank settlers who are involved in terrorist activities. The settlers' attempts to bomb and kill Arab residents and officials are recounted in detail. In addition, a separate article ("The American Connection"), also written by Friedman, details ...


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