April 24, 2001
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BANCO NACIONAL de MÉXICO, S.A.
Plaintiff,
v.
Index No. 00603429
MARIO RENATO MENÉNDEZ RODRIGUEZ,
AL GIORDANO, and
THE NARCO NEWS BULLETIN,
Defendants.
____________________________________________
DEFENDANT AL GIORDANO'S MEMORANDUM
IN SUPPORT OF HIS MOTION TO DISMISS THE COMPLAINT
I. INTRODUCTION
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.
II. BACKGROUND
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.
III. FACTS
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.
IV. ARGUMENT
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, agiordano99@hotmail.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"
-- "NARCOTRAFICANTE"
-- "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).
V. CONCLUSION
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."
Respectfully submitted,
April 24, 2001
________________________________________
Al Giordano
Mailing address for purpose of this case:
c/o Lesser, Newman, Souweine & Nasser
39 Main Street
Northampton, MA 01060
413-584-7331
e-mail: narconews@hotmail.com
This memorandum and accompanying
exhibits and affidavits are offered to the Court in support of:
Motion to Dismiss by Al Giordano
And are filed together
with:
We have gone into
debt to file these important motions
Please lend a
hand with our defense fund
Make checks payable to "Drug
War on Trial"
Drug War on Trial
c/o Attorney Tom Lesser
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