119 F.3d 1018 (2nd Cir. 1997), 292, Chaiken v. VV Pub. Corp.
|Docket Nº:||292, Docket 95-9301.|
|Citation:||119 F.3d 1018|
|Party Name:||John CHAIKEN and Marilyn Chaiken, Plaintiffs-Appellants, v. VV PUBLISHING CORP. d/b/a The Village Voice, Robert Friedman, Modiin Publishing House d/b/a Maariv, and Ron Dagoni, Defendants-Appellees.|
|Case Date:||July 21, 1997|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued Nov. 26, 1996.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Louis Kerlinsky, Springfield, MA, for Plaintiffs-Appellants.
Elizabeth A. McNamara, New York City (Sharon L. Schneier, Lankenau Kovner & Krutz, LLP, New York City, on the brief), for Defendants-Appellees VV Publishing Corporation d/b/a The Village Voice and Robert Friedman.
Mark H. Jackson, New York City (Yuval H. Marcus, Squadron, Ellenoff, Plesent & Scheinfeld, LLP, New York City, on the brief), for Defendants-Appellees Modiin Publishing House, Ltd. and Ron Dagoni.
Before: WALKER and LEVAL, Circuit Judges, and STANTON, [*] Senior District Judge.
LEVAL, Circuit Judge:
In November of 1985, two articles written by defendant Robert I. Friedman appeared in the Village Voice (the "Voice "), a weekly newspaper published by defendant VV Publishing Corporation d/b/a The Village Voice ("VV"). These articles discussed the activities of Jewish terrorist groups operating in Israel's West Bank. In the lead article, entitled "In the Realm of Perfect Faith: Israel's Jewish Terrorists," Friedman described an afternoon he spent with plaintiffs John and Marilyn Chaiken who had emigrated from Massachusetts to Israel. This article quoted extensively remarks the Chaikens made to Friedman.
When Friedman's articles appeared in the Voice, defendant Ron Dagoni was the New York correspondent for Maariv, a Hebrew-language daily newspaper published in Israel by defendant Modiin Publishing House d/b/a Maariv ("Modiin"). Dagoni wrote an article that appeared in the November 7, 1985 edition
of Maariv, summarizing Friedman's articles.
In 1988, the Chaikens brought suit in Massachusetts state court, alleging that Friedman, VV, Modiin, and Dagoni had defamed them and intentionally inflicted emotional distress on them by publishing the articles. Defendants removed the case to the United States District Court for the District of Massachusetts, which dismissed for lack of personal jurisdiction the claims against Modiin and Dagoni and transferred the claims against VV and Friedman to the United States District Court for the Southern District of New York. Judge John F. Keenan thereafter dismissed the claims against Friedman, deeming them untimely under the New York statute of limitations. Following extensive discovery, Judge Shira A. Scheindlein granted VV's motion for summary judgment.
The Chaikens appeal. They argue that (1) the Massachusetts district court had personal jurisdiction over Modiin and Dagoni; (2) Judge Keenan erred in applying New York's statute of limitations instead of the Massachusetts statute; and (3) Judge Scheindlin made legal and factual errors in granting VV's motion for summary judgment.
The Parties and Facts
VV, a New York corporation, publishes the Voice, a weekly newspaper founded in 1955. The Voice features a variety of articles and columns covering such topics as politics, culture, and lifestyle. Over the years, the Voice and its writers have won a number of awards, including the Pulitzer Prize. The Voice has a weekly U.S. circulation of approximately 147,000 copies. Most of its stories, articles, and advertising concern topics relevant to New York City, where it makes the bulk of its sales. 1
In November of 1985, over 81% of the Voice 's total circulation was within the New York City metropolitan area. At that time, sales and subscriptions in Massachusetts made up only 2% of its U.S. circulation, and the average paid circulation outside the United States and Canada was 256 copies.
Friedman, a New York resident, has been a journalist since June of 1980. He has never lived or worked in Massachusetts and has no property or financial dealings there. In 1983, David Schneiderman, then Editor-in-Chief of the Voice, interviewed Friedman and reviewed his work, including six articles published between 1979 and 1982 in leading newspapers such as the Los Angeles Times, the New York Times, and the International Herald Tribune. Satisfied with Friedman's qualifications, Schneiderman commissioned him to write for the Voice. Between 1983 and 1985, Friedman wrote eight articles for the Voice, whose editors found his work thorough and impressive. As of 1985, none of Friedman's articles--in the Voice or elsewhere--had been the subject of a lawsuit.
Friedman did not have a contract with the Voice and was paid "on submission." The Voice did not assign him topics; rather, he proposed ideas to a senior editor, who approved or rejected his choices, with Friedman retaining the copyright for any articles published in the Voice. If the Voice declined to publish an article, Friedman received a "kill-fee," typically between 25% and 50% of the full fee. Friedman was free to propose articles or ideas to other publications, and received most of his income between 1983 and 1985 from other literary sources. The Voice did not provide Friedman with fringe benefits or an office, did not withhold taxes, and did not list him on its masthead as a "staff writer."
In the spring of 1985, the Voice approved Friedman's proposal to write an article about an upcoming trial of members of the "Jewish underground" who had committed acts of violence against West Bank Arabs, and about the ideological and financial support they received from the American Jewish community. With funding from The Fund for Investigative Journalism, Friedman researched the article in Israel and the West Bank. In Hebron and a nearby Jewish settlement
called Kiryat Arba, yeshiva students suggested that he interview the Chaikens because they spoke English. After introducing himself as a Voice reporter researching an article on Jewish settlers on the West Bank, Friedman spent an afternoon interviewing the Chaikens. Friedman took notes, but did not tape-record the interview. He had no telephone or mail contact with Massachusetts during preparation of the article, and none of his sources for the article reside there.
Friedman submitted a draft of his article to the Voice in the fall of 1985. A senior editor and the Editor of the Voice reviewed the article and suggested changes in structure and organization, but not in substance. Schneiderman then reviewed the article and questioned some technical facts, which were verified before publication. After copy-editing to verify spellings, dates, and sources of information, the Voice 's outside counsel reviewed the article. As was its practice, the Voice did not confirm quotations attributed to persons featured in the article.
The final version, entitled "In the Realm of Perfect Faith: Israel's Jewish Terrorists," was the cover story of the November 12, 1985 edition of the Voice. The front cover of the issue reads "INSIDE THE JEWISH TERRORIST UNDERGROUND: How Fanatic Nationalists Are Tearing Israel Apart." The article begins by describing Hebron, Kiryat Arba, and the settlers who live there. It says that about 65% of the settlers are "of American origin" and that "[m]ost are fervent supporters of the major right-wing religious-nationalist organizations" like Rabbi Meir Kahane's "avowedly anti-Arab Kach Party."
The article then introduces the Chaikens, referring to them by the names they use in Israel, Yona and Malka Khaykin. It explains that Yona is a "computer programmer with a master's in physics from MIT," that the Chaikens came to Hebron from Boston, Massachusetts, and that they live with their five children in the Casbah, "inside a heavily fortified compound, surrounded by wrought-iron gates and guarded by teenage yeshiva students who tote Uzi submachine guns."
The article then presents, through quotations and paraphrases, the Chaikens' views on the settlers' right to live on the land and to exclude Arabs. Friedman quotes Yona stating that Hebron is historically significant to the Jewish people and responding to those who deem it unethical to expel the Arabs: "Western European values are bullshit. The messiah will come. There will be a Jewish kingdom. Jews will be the spiritual bosses of the world.... You can't create a messianic Jewish state with 1.9 million Arabs!" Yona then "boasts" of deliberately provoking the Arabs into violence in the hope that the Israeli army will respond by driving the Arabs off the West Bank. Yona and Malka together recount that he and 50 armed settlers once burst into a Mosque during prayers, gave their son a ritual haircut, and then ate watermelon and spit the seeds all over the floor.
In the next paragraph, Malka says that "you have to live in the realm of perfect faith" and suggests that Jews massacred by Arabs in Hebron in 1929 brought it upon themselves because their "faith was imperfect, and because they had sex with Arabs." Friedman then describes a walk with Malka through Hebron's Casbah, where she slaps an Arab child selling combs in front of a place where a Jewish settler was murdered. Friedman then quotes Malka and Yona vilifying Arabs.
The next paragraph begins with the article's last mention of the Chaikens: "Settlers like the Khaykins have turned the more than 114 settlements that now dot the West Bank into hothouses for the growth of terrorism." It then reports that Israeli authorities have recently uncovered six different Jewish undergrounds responsible for terrorist bombings and murders of Arabs across the West Bank and that the two largest of these groups are affiliated with the Gush Emunim...
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