April 24, 2001
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BANCO NACIONAL de MÉXICO, S.A.
Index No. 00603429
MARIO RENATO MENÉNDEZ RODRIGUEZ,
AL GIORDANO, and
THE NARCO NEWS BULLETIN,
DEFENDANT AL GIORDANO'S MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS THE COMPLAINT
My name is Al Giordano, and I am a defendant representing myself on three charges made by Banco Nacional de México, S.A. ("Banamex"): libel, slander and intentional interference with its prospective economic advantage. I did not do any of those three things.
There is not a shred of "convincing clarity," when each statement is considered in its context and entirety, that any statement made by me constitutes defamation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 244 (1986).
To the contrary, it is Banamex which is guilty of defamation in this case. Banamex has falsely accused me in its complaint of a criminal act, a "scheme to extort money." It is an outrageous allegation which has absolutely no basis in fact. It never should have been made.
The fact that it was brought in a public lawsuit without a single fact or piece of evidence to support it is an example to me of the lengths to which Banamex appears willing to go in an attempt to silence and restrain my constitutional rights and those of other dedicated journalists. Backed by its enormous financial resources, Banamex has raised the specter to journalists, who might otherwise report negatively on its activities, of being falsely accused of criminal activity in a lawsuit that could easily bankrupt them.
As Justice Colabella ruled in 1992, "Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined [than a lawsuit brought to silence public speech]." Gordon v. Marrone, 590 N.Y.S. 2d 649, 656 (1992).
Although it may be because I am not a lawyer, I simply cannot understand how the law could allow or why it would allow a Mexican bank to bring an action in New York state against defendants living in Mexico when: (a) all the witnesses with regard to the facts underlying the alleged libel live back in Mexico, (b) the evidence is back in Mexico, and (c) the supposed libel had been published well before I came to New York, to a far larger audience in Mexico (as well to a far larger audience in a Massachusetts newspaper).
A trial in New York just doesn't make sense to me. Do I have the right to get Mexican witnesses to trial in New York? How and where will we be able to depose all the witnesses who live in Mexico? How will we agree on accurate translations of the Mexican judicial proceedings and other documentary evidence? How will I ever be able to afford the translations and depositions, let alone the trips to New York?
The plaintiff, Banamex, has a documented history in its own country of attempting to silence journalists who express dissenting views and those that the plaintiff considers to be incorrect. But as the courts in Mexico have ruled in the case of my co-defendant, Mario Menendez, the facts about which it complains here do not libel or slander Banamex. They meet the standards of constitutional protection under the laws of Mexico.
Why should Banamex, which met defeat in Mexico, now be allowed to use the courts of New York City, in the United States, to attempt once again to silence the same discord?
It is my belief that the laws and constitution of New York state and the United States forbid Banamex being allowed to proceed. From the days of New York v. John Peter Zenger (1735) to New York Times v. Sullivan (1964), the island of Manhattan has played an historic role in setting standards to protect our most sacred freedoms: the freedom to speak, to write, to express opinions, to make arguments and to petition our government for a redress of grievances without fear of persecution or repression.
And it is precisely because of this pioneering New York State of Mind that this city achieved greatness, through the free expression of its artists, its journalists, its activists, its politicians and all its citizens. From the theaters of Broadway and 125th Street to the soapboxes in Union Square, from the bootblack stand at City Hall to the colorful dialogue that can be heard on every corner, in every language of the world that has come here in search of this freedom, free speech has made this city strong and vibrant. And New York has, thus, made the entire nation stronger, by lighting the torch that illumined the path to this liberty.
This is a big part of my truth: I was born and raised in New York. Its spirit runs in my blood and in my entire being. And so it is a disturbing paradox that it was, by speaking my opinions here, as a visitor invited to travel from Mexico to this city, on this island, on a downtown radio show from studios on Wall Street, and in an uptown academic university forum in the Henry and June Warren Hall, on this island where the free exchange of ideas has also made New York's universities the envy of the world, that for exercising my local custom, and exercising it responsibly, with dignity, I now have the gun to my head that Judge Colabella warned us all about.
The plaintiff is asking the Court itself to fire that gun, not just against me and the other defendants, but against the very federal and state constitutions that this Court has long preserved. The plaintiff seeks only to chill speech.
Mexico is undergoing rapid and positive changes. I have been an active witness to and chronicler of those changes in recent years. The circus of corruption and impunity that once ruled Mexico is not as able as it was in recent years to silence criticism: the legal proceedings regarding the same essential facts of this case in Mexico broke important ground toward democracy, human rights and press freedom. The legal proceedings in New York City should do no less.
A. My education in the United States.
Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law--the argument of force in its worst form."
-- Justice Louis Brandeis, United States Supreme Court, Whitney v. California, 274 U.S. 357, 375-376
The road to this Court began years before I ever knew the name of Roberto Hernandez Ramirez or that of Banamex.
I have participated in public affairs for almost my entire life: as a teenager I volunteered, with Sister Elizabeth Kelliher, at the Little Star of Broome day care center on the Lower East Side (and I still have childhood memories of having picketed her landlord on E. 5th Street when he turned off the heat in the middle of a winter rent-strike). I marched for Soviet Jewry down Central Park West, and I spoke to construction workers at Fightback of Harlem, on 125th Street to gain their support. I wrote letters to the editor for tenants' rights when I was 15. At the age of 16, I testified before a New York State Legislative Committee against the Indian Point nuclear power plant. I was later arrested at that nuclear plant in a nonviolent act of civil disobedience. I saw opposition to nuclear power evolve from being an unpopular opinion to representing majority opinion. These were formative influences on me. They taught me that it doesn't matter if one's ideas are unpopular: if the force of reason is with us, if we apply that reason through robust speech and struggle, we will eventually prevail.
In late 1977, I dropped out of college-after one semester at Georgetown University in Washington, D.C.-and moved to New England, where I dedicated myself to the anti-nuclear struggle. I resided in Massachusetts for the next two decades, with frequent travels to other New England and Eastern states (particularly New Hampshire, Vermont, Maine, Connecticut, Pennsylvania, New Jersey and sometimes New York). I participated in political campaigns for candidates and referendum questions. I directed some of those campaigns, including a successful Massachusetts statewide referendum in 1982 to give voters control over future nuclear facilities in Massachusetts. In 1984, I was deputy political director for the first U.S. Senate campaign of John Kerry, Democrat of Massachusetts. Later that year I traveled to Nicaragua and stood in the rubble of an exploded oil tank in Corinto harbor that, we now know, was blown up by the US Central Intelligence Agency.
The following year, Abbie Hoffman was arrested at the University of Massachusetts, together with Amy Carter, the former president's daughter, and other students, for a protest against the recruitment efforts by the same CIA on that campus. I collaborated on the defense. And I was there on that spring day in Northampton, Massachusetts, as the jury deliberated, and found the defendants "not guilty" under the Massachusetts competing harms statute, because the CIA had committed higher crimes. Unpopular ideas become accepted by the public, but only if citizens of conscience speak out and refuse to remain silent. This is a basic tenet of my view of life on this earth.
In 1988, I began to write newspaper columns for a small daily, the Greenfield Recorder, in Massachusetts, for no pay. I wrote then, as now, not as a desire to "be" a writer or be paid for it, but because I felt, as I feel today, that I have something to contribute, something to say. In 1989 I was offered a job as a staff reporter for a weekly newspaper in that region, the Valley Advocate, and four years later moved to the state capital to work as the political reporter for the Boston Phoenix. I covered the halls where they make the laws and the lobbyists pick at the bones of democracy. I covered the campaigns, and saw the influence of money over politics rise to the level of what I considered legalized bribery (something I saw, later, to a more blatant degree in Mexico). I covered the courts, the jails, and the corrupt actions of some public officials, a number of them no longer in office. Unpopular ideas, if they enjoy the force of reason, I repeat, eventually become accepted.
It was through my reporting on the courts and the legal system that I began to question the drug policies of this country. I found overcrowded prisons, backlogged courts, a justice system under siege, and I developed, story by story, the view that the prohibition on drugs is a root cause of so many of these ills. I began to investigate how the media covered this issue. In 1990, I published the cover story for Washington Journalism Review: "The War on Drugs: Who Drafted the Press?" I found myself as an "old-school" journalist in a newly automated and over-processed industry of the news media.
One day I came to a realization, huddling in the cold wind of the New Hampshire primary of 1996, literally the only cigarette-smoking reporter left to share a drag with the old salt Jack Germond outside of the newly smoke-free pressrooms, that I was metaphorically out in the cold as well; an anachronism at the age of 36, a kind of journalist that writes from his passion and not as a career move. As I looked around me, I felt very out of place. The human touch was gone from the profession. I felt I had lived its last days.
In July 1997, I bought a plane ticket to Mexico. There was a movement down there, in the state of Chiapas, an indigenous rights movement, persecuted by the Mexican government at the time. I spent much of the next year in that state, living in impoverished indigenous communities where they spoke languages like Tzotzil, Tzeltal and Tojolabal. From there, I wrote an Open Letter to U.S. Senator John Kerry and his wife, the environmental leader Teresa Heinz, which was published in the Boston Phoenix. I invited them to come to Chiapas, and spoke about what our government, the U.S. government, was doing to make a bad situation worse in Mexico. Here were people so poor that they didn't have food, they died of curable diseases for lack of basic medicines, they didn't have schools, they were repressed, imprisoned, tortured, jailed on false charges, for simply speaking out in favor of their rights. I interviewed six of them, framed drug war prisoners in prison, and tried to find a periodical in the U.S. that would publish their words. Nobody did. Nobody listened. And yet they kept on struggling.
Last month, representatives of those indigenous rebels were received by the Federal Congress of Mexico and spoke their word from the nation's highest podium. Theirs was another unpopular idea that, through struggle and robust speech, won the hearts and minds of a nation.
What the indigenous of Chiapas told me, when I was their guest, is that they didn't want me to become an indigenous person, to live like they live. They said that all of us serve humanity best by being what we are, by being human beings first. I thought about that for a long time. I thought: Who am I? What am I doing on this earth? And the answer came: I am a human being first. But, as much as I had tried to separate myself from a media industry that has forgotten its noble and original intentions, I am a journalist, too.
I am not the same kind of journalist as most of those who use that title. I come from a different tradition, of the late journalists that did not hide their opinions and ideas, but that investigated and spoke their truths and involved themselves in the world, on the streets, in the jungles, where the people live. Journalists who did not dedicate themselves to the study of power, as Orianna Falacci wrote, but "to the study of anti-power."
I learned that the President of the United States, Bill Clinton, would be coming to the Yucatan Peninsula of Mexico in early 1999 to hold an "anti-drug" summit with Mexican President Ernesto Zedillo. I contacted my former editors at the Boston Phoenix and said I would like to cover it. They gave me the assignment.
That was the first time I had ever heard the name of Roberto Hernandez Ramirez, and the first time that I had ever heard the name of Mario Renato Menendez Rodriguez. And there was a story that was so important that it had to be reported.
That is how I found my way to this courtroom.
The plaintiff's recitation of the facts in its complaint is inaccurate in many respects, as well as incomplete in many other respects. Most importantly, it has misused ellipses and plucked my words out of context, distorting my statements in such a manner as to hide what I actually said or wrote.
Therefore, in this section of the brief, I correct some of these inaccuracies, and also give the Court a full picture of what I said and wrote--in New York during the first week of March 2000, and in Mexico after April 7, 2000, when I began publishing the work titled The Narco News Bulletin or Narco News. In this section, I also discuss, after showing what I actually said, in its entirety, the fact that no reasonable person would find that what I said was defamatory.
There are four forums in New York in which the plaintiff alleges defamation:
A. The Village Voice article.
Since the plaintiff has not alleged any defamatory statement by me in the Village Voice article, there is no need to address those statements here.
B. The WBAI radio broadcast.
In its complaint, Banamex cites three short portions of a transcript of the two-hour WBAI broadcast, which it claims shows defamatory statements attributable to me. The three portions of the broadcast, which occurred at different times, are cut and pasted together in paragraph 18 of the complaint to create a false impression of an attack--although that "attack," at best, was on Roberto Hernandez, not Banamex.
I ask the court to read closely my exact words. First I said:
. . . I read in Mr. Menendez's daily newspaper, Por Esto! that the host of the anti-drug summit between the two presidents, Clinton and Zedillo, was the most powerful banker in Mexico, who himself was a money launderer and a drug trafficker. And Por Esto! went further than just saying that he was a money launderer and drug trafficker, they went and took pictures of the cocaine on his property--a very dangerous job his reporters did; they are very valiant journalists. Pictures of the cocaine containers washed up on his beaches, the 43 kilometers of pristine beaches and Mayan ruins that this man has bought up. His name is Roberto Hernandez; he is the president of the National Bank of Mexico, or Banamex.
Banamex claims this statement is defamatory. But where is the false statement of fact? The statement begins, "I read in Mr. Menendez's newspaper, Por Esto!," and goes on to say what I read. My statement is absolutely accurate as to what I read. How is that defamatory? 1
1 I make no "false assertion of fact" about Roberto Hernandez that he "is a drug trafficker and money launderer," as Banamex claims in its complaint, par. 18. I only state what I read in Por Esto!.
The second allegedly defamatory statement came 40 minutes later in the broadcast. In it, I never mentioned Hernandez or Banamex. I said:
. . . We are here with somebody [Mr. Menendez] who is involved in the front lines of an international battle that has grave consequences, and he needs our support here in New York and here in the United States of America so that the Mexican government and the U.S. government understand that the American people are behind people who tell the truth, like Mario Mendendez.
The suggestion in paragraph 19 of the plaintiff's complaint that this is equivalent to a statement by me that "the drug allegations [made earlier in the broadcast] are the 'truth'" is, to be honest, ludicrous. To praise one person does not defame another. I have found no case in which by praising somebody, as I praised Menendez that night, I can therefore be found to have slandered another. What I said that night is that "the American people are behind people who tell the truth, like Mario Menendez." I believe that is true. The American people are behind people who tell the truth. That is my opinion, as it is my opinion that Mario Menendez has been a truth teller in Mexico for 30 years, since he first accused the government of events which years later it admitted were true.
Between the second and third paragraphs attributed to me in the Plaintiff's complaint, there was almost an hour of other discussion during the radio broadcast, all of it about important public policy issues. Then, I said:
. . . And these things that my favorite philosophy graduate is saying here, that Mario Mendendez is saying, is that these are not invented. He has published the photos. He has published the eyewitnesses. He has published the testimony. In this three-part series, there were 40 different photos proving this. And the photos don't lie.
Complaint at par. 18. 2
2 My third and last paragraph cited in the Plaintiff's complaint was immediately followed by these words about Menendez: "He has broken ground in the field of drug policy and United States correspondents don't touch it."
Again, this was not defamatory. I did not state any fact about Banamex or Roberto Hernandez. My words are that my favorite philosophy graduate, Mr. Menendez, "is saying" that his allegations "are not invented," that he has photos and that the photos do not lie.
What I said was true. This is exactly what Mr. Menendez said.
C. The Columbia University Law School Conference
At Columbia Law School, I was on a panel, discussing drug legislation. I was the moderator. Banamex claims I committed slander at this academic forum five times. In its complaint, it lists five short "snippets" of my words. Each "snippet" is taken totally out of context. None are defamatory.
The actual words spoken by me show that they are not actionable:
I had traveled to Merida in the Yucatan peninsula of Mexico to cover the anti-drug summit between President Bill Clinton and President Ernesto Zedillo. This was a completely manufactured event . . .
A newspaper which I had never heard of called Por Esto!, a daily, tabloid-size with color photos, very interesting paper. And Por Esto! had done a three-part series that week on the host of the Clinton-Zedillo anti-drug summit, a banker by the name of Roberto Hernandez. And actually, this was nothing new. Por Esto! had been writing about Hernandez, president of Banamex, the National Bank of Mexico, since December 1996, and his role as a key drug trafficker and importer of hundreds of tons of Colombian cocaine by boat onto his properties. We're going to see the documentation in a few minutes, and then by airplane towards the United States from Mr. Hernandez's private airfield. Mr. Hernandez is one of the most politically powerful people in Mexico. (Emphasis added.)
Again, there was nothing defamatory about what I said. I made no factual allegations about Hernandez or Banamex. My words are that Por Esto! has been writing about Roberto Hernandez and his "role as a key drug trafficker," etc. It was true. Mr. Menendez had done exactly that.
I would also note that at the Columbia University conference, Mario Menendez did show his documentation, the photos, maps and the facts upon which his news stories were based, on a wide screen, large enough for everyone to see and form their own opinions of the facts.
The last two statements at the Columbia University conference claimed by the plaintiff to be defamatory are: (a) that I made a factual statement that Roberto Hernandez was a "narco-banker," and (b) that after personally investigating Mario Menendez's allegations, I found them "pretty convincing." Again, Banamex plucks words out of context. That is not what I said. What I actually said was:
When I began investigating the story of Clinton holding his anti-drug summit on the property of a narco-banker . . . I received a telephone call at my house in Mexico from Sam Dillon, who I had never met . . . First he picked my brain for information. He wanted to know what I had, what I was going to publish. I said, "Sam, I'm still in the middle of my investigation to see whether these allegations on the part of Por Esto! are true. But it seems pretty convincing." Sam Dillon lost his cool and began screaming at me. (Emphasis added.)
These words certainly do not defame anyone, let alone Banamex. I was recounting for the audience at Columbia a conversation in which I was a direct party and participant. I began by telling the audience that the conversation in question took place when I was beginning to investigate a story (by Por Esto!) that Clinton was holding his drug summit on the property of a narco-banker. 3 This is what journalists are supposed to do--investigate.
3 My words cannot be read to mean that I told the Columbia University audience as a matter of fact that Roberto Hernandez was a "narco-trafficker."
I then stated to the audience that I told Sam Dillon that I was "still in the middle of my investigation to see whether these allegations on the part of Por Esto! [not me] are true. But it seems pretty convincing." Again, I was investigating the allegations to see if they were true. I told Sam Dillon that I was in the middle of the investigation, but at that point, to me, they seemed "pretty convincing." Not that they were true. Not that I had finished my investigation. Not that I had reached a conclusion as to their truth or falsity. Just that, at that point of my investigation, the allegations (e.g., that Roberto Hernandez was a "narco-banker") seemed "pretty convincing" to me.
And that is the entire sum and substance of Banamex's slander claim against me.
With respect to the libel claim, first, I would adopt the arguments of Narco News Bulletin. There is no jurisdiction with regard to the statements, and if there were, Mexican law would control.
But I want to emphasize that the libel claim is no more valid than the plaintiff's accusations of slander at the New York forums. The plaintiff again uses the same misleading tactic of providing "snippets" of words, divorced from their context, with ellipses to hide their true meaning from the court. The full text appears in the exhibits and I urge the court to read the articles in their entirety. The court will find that any reasonable person would conclude that Banamex was not defamed. I can and will show, point by point, that this is so, just as I have done now with the three New York forums.
However, right now, there is a larger, more immediate threat to press freedom on a wider scale--the potential chilling effect on free speech on the Internet. I urge the court to make a clear and careful ruling on this issue.
A. I did no business in New York and therefore there is no personal jurisdiction over me in New York.
Banamex has not met its burden of setting forth the statutory basis upon which it asserts jurisdiction over me in its complaint. Sipa Press, Inc. v. Star-Telegram Operating, Ltd., 181 Misc.2d 550, 694 N.Y.S.2d 850 (Sup. Ct. N.Y. Co. 1999). It should be obligated to do so.
Without it, it is hard for me as a non-lawyer to respond. Therefore, I first adopt the arguments made by defendant The Narco News Bulletin, and the arguments made by defendant Mario Menendez, both of whom have lawyers and whose arguments also apply to me.
Second, I would like to say that the Banamex complaint, with regard to jurisdiction, suffers from the same problem as its "facts." It stretches too far. It has gone to the level of inventing falsehoods out of thin air to promote jurisdiction. For example, it alleges that "the purpose of their [the defendants'] appearance on the [WBAI] broadcast included promoting Menendez's newspaper Por Esto!; promoting Giordano's publication The Narco News Bulletin; seeking financial support for their business endeavors, including Por Esto! and The Narco News Bulletin."
I have listened to the audiotape. I did not "promote" Narco News during the WBAI radio program in New York (Narco News did not exist in March 2000 when I appeared on that program). The claim is just made to try to save jurisdiction. Similarly, the conclusory claim by the plaintiff in its complaint that I sought to solicit or raise money for "business ventures" in the March 2000 forums in New York is false, as the exhibits that I have given to the court document.
Finally, the lack of jurisdiction is also why the plaintiff invented the fiction that I am an somehow an "agent" of Narco News (The Narco News Bulletin is a name. It has no agents anywhere on earth and certainly not in New York. I am not its agent. It can have no agent.)
1. New York's Long Arm Statute.
New York has recognized, with its more restrictive long arm statute, particularly regarding defamation law, that being the media capital of the world carries with it a responsibility. The policy of New York State, which "did not wish New York to force newspapers published in other states to defend themselves in states where they had no substantial interests," is a wise policy for all types of media. Many international media organizations, like the Committee for Protection of Journalists, hold their annual dinners in New York. It would be very difficult for a serious international journalist to avoid traveling to New York. Columbia University, where I spoke in March 2000, has the most important journalism school in the nation.
If the Court declares jurisdiction over me in this case because of my visit to New York, pursuant to an invitation to speak to a group at Columbia University Law School, it will chill not only my speech, but that of other journalists. It would not only discourage me from ever wanting to speak publicly in this city again on any topic, but it will also chill academic speech, and discourage speakers and scholars from around the world from accepting invitations to Columbia, NYU, Cornell, Syracuse, SUNY, CUNY and the many other institutions of learning in this City and State. It will have a particularly harsh impact on Mexican citizens, discouraging them from coming to New York to speak, at the very time when that country is evolving on press freedom issues.
In the 24 months between September 1998 and August 2000, when this complaint was filed, I visited New York City just two times, and each time for a week or less. Are those visits sufficient to confer jurisdiction? I suggest the answer is no. The New York long arm statute specifically excludes from the definition of tortious acts committed within defamation.
Without that, and without the false claims of soliciting money and promoting Narco News Bulletin, there is no basis for personal jurisdiction in New York against me.
B. Forum non conveniens requires that the case in New York be dismissed and that Banamex proceed, if it wishes, in Mexico where all parties live.
I adopt the arguments set forth by Defendant Menendez and by Defendant The Narco News Bulletin that this action should be dismissed on forum non conveniens grounds.
The four factors that New York Courts use to determine whether this is the correct forum for a case all apply to me.
1. Potential hardship to defendant.
The hardship for me is more than potential, it is actual. I now have had to borrow and beg for money to come twice from my home in Mexico to New York just to prepare this motion. The other night I found myself in New York without a place to stay nor the money for a hotel room. I took a $36 bus to Massachusetts where I had a place to stay. I do not know how I will be able to be in New York for these proceedings. I have no living family in this city. The city is incredibly expensive. Given that the plaintiff and I both reside in Mexico, this is "oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience." Scottish Air International v. British Caledonian Group, PLC, 81 F.3d 1224 (2d Cir. 1996).
The difficulty of getting witnesses to trial and deposing them is certainly another potential hardship for me. My ability to subpoena witnesses to trial or in Mexico for depositions seems questionable. And even if they can be subpoenaed, the cost of transporting witnesses to New York, of housing them in New York, not to mention court-approved translators, will be astronomical and way beyond my means.
2. Whether there is an alternative forum where plaintiff can bring suit.
Clearly, that is Mexico, where plaintiff and all defendants currently reside, and from where I made the majority of allegedly libelous statements in plaintiff's complaint.
3. Whether both parties to the action are non-residents.
All parties to the action are non-residents. For Banamex to claim that, because it has an "agency" in New York, it was somehow harmed here by my words at an academic forum, a late night radio show on an activist station, and a politically radical Internet site from Mexico is absurd. Banamex has offered no proof that it has been harmed. That makes sense. Of the perhaps 200 attendees at Columbia University, the 1:30 A.M. to 3:30 A.M. listeners of New York's radical radio station, and those readers of Narco News who may reside in New York, were any of them likely to avail themselves of banking at Banamex's "agency"? I doubt it very much. You can't even open up a bank account at this agency, which exists on the eighth floor of the GM building.
Banamex will not be able to prove any harm to it in New York. My words 4 were said much louder and to a much wider audience in Mexico for more than three years prior to the time the events of this case took place.
4 Furthermore, Banamex claims that my words are "so silly no one pays attention to them" (complaint at par. 5). It shouldn't be able to have it both ways.
4. Whether the transaction out of which the cause arose primarily occurred in a foreign jurisdiction.
As I have stated elsewhere in my brief, all my words that the plaintiff claims are defamatory concerned events which occurred exclusively in Mexico. None of my statements concerned anything that happened in New York. In fact, nothing new was said in New York that was not said previously in Mexico.
Defendant Menendez has stated in his brief that the Court and the parties will further have great difficulty accessing sources of proof. That is an understatement. I cannot see how the defendants will be able to access the proof--including witnesses in Mexico, some of whom are too poor to receive visas to the United States, which require certain minimum economic resources to be allowed to cross the border. In any case, the economic costs of bringing them here are prohibitive.
C. My actions had nothing to do with extorting money from Banamex. My actions had to do with reporting on drug policy in Latin America and nothing else.
Although I am disappointed by how Banamex distorted my statements on WBAI and at Columbia University Law School by extracting words out of context, I cannot say I am surprised. I have covered the courts long enough as a reporter to know that the system is "adversarial." People with money can hire big law firms. Their job is to make people look bad.
But I never thought that a defendant could be falsely accused of a crime. That is outrageous. I was very happy to learn in my research that New York feels the same way and requires a plaintiff to allege the tort of interference with economic relations with specificity. Schuckman Realty, Inc. v. Marine Midland Bank, N.A., 244 A.D.2d 400, 664 N.Y.S.2d 73 (2d Dept. 1997) (dismissing complaint because the allegations in support of a claim for tortious interference were "devoid of factual basis and vague and conclusory"); Chemical Bank v. Etinger, 196 A.D.2d 711, 602 N.Y.S.2d 332 (1st Dept. 1993) ("the conclusory allegations of conspiracy and improper interference were insufficient to meet the requirements for establishing liability"); Riddell Sports, Inc. v. Brooks, 872 F.Supp. 73, 78-79 (S.D.N.Y. 1995) (the allegations were too vague to support liability).
Banamex's claims in Count III are undocumented and undocumentable. The claims completely fail to comply with the requirements of New York law. Entertainment Partners Group, Inc. v. Davis, 198 A.D.2d 63, 603 N.Y.S.2d 439, 440 (1st Dept. 1993) (the plaintiff must show that the defendant was "motivated solely by malice or to inflict injury by unlawful means, rather than by self-interest or other economic considerations").
Nothing was further from my mind, when I came to New York by invitation or when I wrote articles in Mexico made available on www.narconews.com, than a scheme with Mr. Menendez to extort money from Banamex. I spoke in New York and on the website because I wanted to address important social policy issues, not Roberto Hernandez or Banamex. Therefore, Count III of the complaint should be dismissed immediately.
D. The statements I made in New York were not "of and concerning" Banamex. They concerned Roberto Hernandez.
Banamex has brought this lawsuit. Yet, virtually all of the statements it claims are defamatory are directed not at Banamex, but at an individual, Roberto Hernandez Ramirez.
First, let us look at what I said on the New York trip. Even according to the plaintiff's complaint, I only mentioned Banamex in the context of identifying Hernandez: "the President of the Bank of Mexico, or Banamex." Again, according to its complaint, this happened on only two occasions: (a) once during the two-hour WBAI broadcast, and (b) once during the Columbia Law School panel discussion. Is this type of identification defamatory? If someone libelled a Senator, could his or her state sue? If Bill Gates was libelled, could Microsoft sue? Of course not.
To be defamatory, a statement must be "of and concerning" the plaintiff. (It is for the court to determine in the first instance, as a matter of law, whether a publication is "of and concerning" the plaintiff.) Dalbec v. Gentleman's Companion Magazine, 828 F.2d 921, 925 (2nd Cir. 1987); Fulani v. New York Times Co., 260 A.D.2d 215, 686 N.Y.S.2d 703 (1st Dept. 1999). I would ask the court to make that determination at this stage of the proceedings. Please read, one by one, the statements that I made in New York set forth in the Facts section. I think it is clear from my statements that no defamation is directed toward the Bank of Mexico.
With regard to the Narco News Bulletin articles 5, again, Roberto Hernandez is identified by his title. This is appropriate. Second, I talk about Banamex in terms of money laundering. I report that Banamex was involved in an operation known as Operation Casablanca, a joint investigation of the United States Customs Service, the DEA and other agencies cooperating with the Federal Reserve Board. But it was the United States government that charged Banamex, as an entity, with laundering $3.8 million, not me. It was the United States government that charged two Banamex executives with criminal money laundering charges, not me. And all of that happened before I spoke in New York in March 2000.
5 As argued in the Narco News Bulletin brief, there is no jurisdiction in New York with regard to those articles and the choice-of-law rule also dictates dismissal.
We have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-help--using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.
-- Justice Lewis F. Powell, U.S. Supreme Court, Gertz v. Robert Welch, Inc., 418 U.S. 323,1 Med. L. Rptr. 1633 (1974).
A cause of action for libel and slander must be commenced within one year of accrual.
-- Under New York CPLR Section 215(3).
The accrual of a defamation cause of action occurs upon the original publication of the offending material. . . Publication occurs when the defamatory work first becomes generally available to the public or is placed on sale.
-- New York Court of Claims, Firth v. State of New York, Claim N. 97999, March 8, 2000.
My statements about Roberto Hernandez and Banamex were first published in the Boston Phoenix on or about May 13, 1999, in its print edition, and the next day on its world wide web site, in English and in Spanish.
That May 1999 publication included my email address, email@example.com. This May 1999 story contains the same essential facts and information, as well as my opinions about those facts, that the plaintiff today claims are defamatory. The May 1999 Boston Phoenix story, had as its first three paragraphs:
If the facts of the story were made of cocaine powder, the entire White House press corps would have sneezed; the news was right under their noses. Any one of them could have written:
MÉRIDA, MEXICO, FEBRUARY 15, 1999: U.S. President William Clinton met today with Mexican President Ernesto Zedillo to negotiate better cooperation between their nations in the fight against drugs. Incredibly, the anti-narcotics summit was hosted by powerful Mexican banker Roberto Hernández Ramírez, a man publicly accused of trafficking cocaine and laundering illicit drug money. . . .
But that story wasn't reported in the States, despite a controversy over Hernández's alleged involvement in the drug trade that's raged on the Yucatán peninsula for two years.
The May 1999 story continued:
The two presidents would be flown by helicopter the next morning, February 15, a short distance to the Temozon Sur plantation--the luxurious refurbished ranch owned by Roberto Hernández Ramírez, president-owner of BANAMEX (the National Bank of Mexico before Hernández bought it from the government a decade ago). Forbes magazine lists Hernández as number 289 among the wealthiest men on earth.
And it stated:
Even a reporter who did not read Spanish might have comprehended the banner headline in the Merida daily Por Esto!: ROBERTO HERNANDEZ RAMIREZ: NARCOTRAFICANTE.
That same Valentine's Day, Por Esto! published the first installment of a three-part series about the banker, his rise to wealth and power, his political clout, and his alleged involvement with drugs and drug money. The series--including 350 column-inches of text documented by 45 photographs (31 in color), plus three maps tracing the route of Colombian cocaine through the banker's properties--ran over three consecutive days.
According to the newspaper and its sources, coastal marshlands purchased by Hernández in the late '80s and early '90s were the port of entry for massive volumes of cocaine delivered in small Colombian speedboats. From there, tons of the drug were loaded onto small planes and flown north from Hernández's private airfield. Hernández, the newspaper charged, was hiding behind empty "eco-tourism" resorts to wash drug profits.
The series was a journalistic tour de force, the culmination of a 26-month investigation into the 43 kilometers of beachfront property owned by Hernández-- a region known by the locals as the "Coca Triangle."
The newspaper went even further: it filed federal criminal complaints against Hernández for drug trafficking, for the robbery of national archeological treasures (his properties include the ancient Mayan ruins of Chac Mool and others), and for the environmental destruction caused by the cocaine-trafficking operations to the Sian Ka'an nature preserve.
Not a word about this controversy would appear in the U.S. news media before or after the Clinton-Zedillo summit. One could search the Internet, Lexis-Nexis, the major dailies, the wire services, the entire English-speaking world; the story was neither published, promoted, criticized, nor rebutted.
And yet the story has raged in Yucatán and the eastern Yucatán coastal state of Quintana Roo, where the property in question is located, since December 16, 1996, when a fishermen's cooperative blew the whistle on Hernández's cocaine port and airfield to Por Esto! and pointed the newspaper to the evidence. Por Esto! published the fishermen's accounts of threats and harassment by Hernández, who, they said, wanted to drive them off their lands to eliminate witnesses to his drug-smuggling operation. Hernández returned fire in 1997, filing charges of trespassing and defamation against reporter Renán Castro Madera, regional editor Santos Gabriel Us Aké, and editor and publisher Mario Menéndez Rodríguez. Public opinion has not favored Hernández's complaints. Since 1996, more than 100 town councils, unions, and civic organizations throughout the Yucatán Peninsula have passed resolutions supporting the newspaper in its fight to expose the man they call a narco-banker.
In other words, the same statements that Banamex claims were libelous in New York and on Narco News, were made here in the Boston Phoenix a year before I was invited to New York:
-- "A man publicly accused of trafficking cocaine and laundering illicit drug money"
-- "alleged involvement with drugs and drug money"
-- "text documented by 45 photographs"
-- "the route of Colombian cocaine through the banker's properties"
-- "marshlands purchased by Hernandez . . . were the port of entry for massive volumes of cocaine delivered in small Colombian speedboats"
-- "tons of the drug were loaded onto small planes and flown north from Hernandez's private airfield. Hernandez, the newspaper charged, was hiding behind empty eco-tourism' resorts to wash drug profits"
-- "a fisherman's cooperative blew the whistle on Hernandez's cocaine port and airfield . . ."
-- "the man they call a narco-banker"
The May 1999 Boston Phoenix story made additional statements about Banamex as a company and other former Banamex officials that were not made by any of the defendants in New York in March 2000 (nor made available at www.narconews.com). I share them here to demonstrate that the May 1999 article went even farther in examining the corporate behavior of the plaintiff-"the power relations of BANAMEX"-than any statement that is subject of this lawsuit. App. pp. 41-42.
On April 12, Por Esto! resumed publishing the results of its investigations into Hernández's affairs, vowing: "Loyal to the truth, Por Esto! will not fold in the fight. . . . The federal executive branch is the major accomplice of the drug barons in Mexico."
The accompanying story linked a BANAMEX legal-department director--the Republic's former first assistant attorney general, who was fired, according to Por Esto!, for his illegal activities related to drug trafficking--to three known drug traffickers, one a witness under the protection of U.S. anti-drug prosecutors, and charged that the U.S. government has "wide and deep knowledge" of Hernández's drug-trafficking activities. The newspaper also identified the state delegate of the Mexican federal prosecutor's office as a former BANAMEX employee and reported that the Mexican armed forces responsible for drug enforcement on the peninsula have received orders not to enter Hernández's coastal properties, which, according to Por Esto!, are still being used as a major cocaine-trafficking port.
That Menéndez continues with the investigation is no surprise. What is new is that, for the first time, other journalists are taking on the story.
Carlos Ramírez, editor of the feisty national political magazine La Crisis, publishes a daily column in both El Universal and Por Esto! In an April 6 column analyzing the Villanueva case, he blamed the ex-governor's fall from grace on his antagonism with Hernández, "the all-powerful owner of BANAMEX," over tourist-development sites in and around Cancún.
"Villanueva lost due to the weight of the power relations of BANAMEX," Ramírez wrote, going on to describe a strong personal and social relationship between BANAMEX's Hernández and Mexican president Ernesto Zedillo, who, Ramírez reported, has vacationed at the banker's Cancún haciendas and at a Hernández-owned Caribbean island that's been linked to the late Colombian narco-trafficker Pablo Escobar Gaviria.
From May 1999 to August 2000, neither Banamex nor Hernandez made any attempt to correct me or to offer a differing view.
So, when I went to New York City in March of 2000, I was repeating statements that had been ratified and confirmed by Banamex's silence. 6
6 In addition, the Village Voice column, published on February 23, 2000, which raised the same facts, invited the plaintiff to comment on the allegations but "Hernandez did not return calls for comment," reported the Voice.
E. The alleged defamatory statements were my opinions and I made known the facts underlying those opinions.
The statements set forth in the plaintiff's complaint do not rise to the level of defamation. They are either true statements about Por Esto!'s allegations or opinions.
In all defamation cases, the threshold issue which must be determined, as a matter of law, is whether the complained of statements constitute fact or opinion. If they fall within the ambit of "pure opinion," then even if false and libelous, and no matter how pejorative or pernicious they may be, such statements are safeguarded and may not serve as the basis for an action in defamation. (Steinhilber v. Alphonse, 68 N.Y.2d 283, 289, 508 N.Y.S.2d 901, 501 N.E.2d 550; Rinaldi v. Holt, Rinehart & Winston, Inc., 42 N.Y.2d 369, 380-381, 397 N.Y.S.2d 943, 366 N.E.3d 1299, cert. denied, 434 U.S. 969, 98 S.Ct. 514, 54 L.Ed.2d 546.) A non-actionable "pure opinion" is defined as a statement of opinion which either is accompanied by a recitation of the facts upon which it is based, or, if not so accompanied, does not imply that it is based upon undisclosed facts. . . .
Determining whether particular statements, or particular words, express fact or opinion is ofttimes an exercise beset by the uncertainties engendered by the imprecision and varying nuances inherent in language. While mechanistic rules and rigid sets of criteria have been eschewed as inappropriate vehicles for the sensitive process of separating fact from opinion, reference to various general criteria has been found helpful in resolving the issue. Predominant among these is that the determination is to be made on the basis of what the average person hearing or reading the communication would take it to mean, and that significance is to be accorded the purpose of the words, the circumstances surrounding their use and the manner, tone and style with which they are used. (Steinhilber v. Alphonse, supra, 68 N.Y.2d at 290-291, 508 N.Y.S.2d 901, 501 N.E.2d 550.) An approach which was favorably commended upon in the Steinhilber case is that set forth by Judge Starr in his plurality opinion in (Ollman v. Evans, 750 F.2d 970 [D.C. Cir.] cert. denied, 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278) which enunciates four factors which should generally be considered in differentiating between fact and opinion. They are as summarized in Steinhilber, 68 N.Y.2d at 292, 508 N.Y.S.2d 901, 501 N.E.2d 550, as follows:
(1) an assessment of whether the specific language in issue has a precise meaning which is readily understood or whether it is indefinite and ambiguous; (2) a determination of whether the statement is capable of being objectively characterized as true or false; (3) an examination of the full context of the communication in which the statement appears; and (4) a consideration of the broader social context or setting surrounding the communication including the existence of any applicable customs or conventions which might 'signal to readers or listeners that what is being read or heard is likely to be opinion, not fact' (Ollman v. Evans, supra at p. 983).
Parks v. Steinbrenner, 520 N.Y.S.2d 374 (A.D. 1 Dept. 1987).
In Steinbrenner, the court went on to say:
The reverence which the First Amendment accords to ideas has properly resulted in the determination that, "however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 78.)
Those competing ideas will undoubtedly continue in Mexico. There is no need for them to continue here.
F. My statements about the Mexican proceedings are privileged.
No man, whatever his position, should be allowed to suppress publication of his wrongs!
-- Alexander Hamilton, Esq., New York v. Zenger, New York City, 1735.
All statements that I made about the Mexican proceedings are privileged. They were directly about and in response to a court case and judicial decision in September 1999, prior to my visit to New York (see Menendez motions).
The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."
-- United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y. 1943)
From 1988 to the present, which constitutes my life as a journalist, I have published, countless stories in newspapers and magazines. People have disagreed, even been angered by my comments or by information that I have reported. Some of those people have been very wealthy and powerful. But none had sued me.
I have logged thousands of hours as a combative, but I think more thoughtful than most, AM talk radio host, and many scores of hours as a television host, including as a guest host in prime time for the ABC affiliate in Springfield, Massachusetts. Yet, I had never been sued.
I believe that I have always been fair to everyone that I have reported on. When, last December, Roberto Hernandez's lawyers wrote a letter disagreeing with words published on The Narco News Bulletin, I published their letter uncensored, and responded to each of their points, even though I knew that the letter by attorney McLish made false and malicious claims about me. But, for me, it is more important to let all voices be heard, especially dissenting voices, and let the people decide. This is the vigor and variety of public debate the Justice Brennan and the Supreme Court preserved in New York Times v. Sullivan.
I am a pluralist like Justice Brennan. I argue forcefully for the truth as I see it but I accept that others have "their truths," and it is when all voices are heard that we can "make a bigger truth."
The best resolution of this lawsuit would be if Roberto Hernandez and I grabbed a couple of soapboxes, went down to Union Square, or up to Central Park, invited the press and public, and debated the facts in question, point by point. We could do it in Spanish or in English, to his liking. That would be a utopian way to solve this dispute.
The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.
-- Bose Corp. v. Consumers Union, 466 U.S. 485, 511 (1984).
Reading my words fairly, in their entirety, and not as pulled out of context by Banamex, none of my words are defamatory.
One year ago this week, I made an invitation to all readers, and that includes Banamex, to contribute "their truth" and to have it published on Narco News. It remains a living invitation. I would publish whatever Banamex wrote in response to my stories and statements. No order of the court is needed for that to happen. And I would publish it uncensored. And I would respond to any points that deserved response. That's an offer I have always made. That doesn't imply that I would agree with them. It just means that even people I disagree with have the right to be heard. Banamex has that right. I repeat that offer to them to speak their truths gratis. Free Speech means that it's free. It means you don't have to pay.
Two hundred and sixty-six years ago, on this island of Manhattan, Alexander Hamilton appeared to represent the printer John Peter Zenger. Hamilton said:
The question before the Court . . . is not of small nor private concern, it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may in its consequences affect every freeman that lives under a British government on the main of America. . . I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens; but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny; and by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right--and liberty--both of exposing and opposing arbitrary power . . . by speaking and writing truth. . . .
Alexander Hamilton was speaking about this case, in this courtroom today, because this case will decide the fate of "every freeman"--and freewoman--"on the main of America."
At great risk to his own life and fortune, John Peter Zenger put his case directly to the jury, the representative of the people, and the people refused to condone the imposed silence of censorship upon him, a poor man, a hard working man, a young man of 35, who published articles calling the governor of New York an "idiot" and a "Nero." The jury dismissed the charge against that New York printer.
I am certain that Zenger, like myself, had not the slightest mental state of culpability in speaking his truth, and that the jury plainly saw that truth. If this case goes to trial, I will see the plaintiff in front of the jury of my peers, and I will speak as freely as I have written my words today. And the facts and the truths, all of them, will come out as it pertains to my state of mind and as it pertains to the plaintiff, and the other parties in this case, both inside and outside of the courtroom. And I have total faith that the jury will be as outraged as I am, that in the year 2001, we would have to fight for the rights established in the 1735 case of New York v. Zenger all over again.
But to allow this case to go forward will announce to the nation and to the world that it is no longer safe to travel to New York City and speak one's mind. Once more it will be a crime to criticize the King.
This case provides the Court with a unique and timely opportunity to make good law by dismissing this complaint now.
A dismissal of this case now by this honorable court will say, "Do not be silent, America; especially do not be silent when you visit New York. This City, this State, was built upon free speech. Your speech is still welcome here."
April 24, 2001
Mailing address for purpose of this case:
c/o Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
This memorandum and accompanying exhibits and affidavits are offered to the Court in support of:
Motion to Dismiss by The Narco News Bulletin
Motion to Dismiss by Al Giordano
And are filed together with:
Affidavit by Al Giordano
Affidavit by Al Giordano With Respect to Narco News Bulletin
Affidavit by Karen Thatcher concerning Banamex "Agency" in New York
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