2004-03-19 / Front Page

Judge Dismisses Libel Suit Against Clark, The Wave

Judge Dismisses Libel Suit Against Clark, The Wave

A Manhattan State Supreme Court Justice has dismissed a lawsuit brought by the Duane Reade Corporation against local Artist Patrick Clark and The Wave.

The giant pharmaceutical company filed suit when The Wave ran a paid advertisement denouncing a large billboard that was to be placed on its Rockaway Park Store, calling for a boycott of the store if the sign were not removed.

Clark had recently been chosen from a number of artists to build a glass cupola that would become the centerpiece of the new "Tribute Park" to be built on a triangle of land abutting the Duane Reade parking lot.

Clark believed that the 400-square-foot sign would overshadow the tribute to those who died at the World Trade Center on September 11, 2001.

In the ad, Clark labeled the sign as "an esthetic nightmare" and called for a boycott of the store.

Duane Reade sued Clark and The Wave, stating in its complaint that the ad contained "purposefully or reckless untrue assertions" and that the ad "damaged the store’s most valuable asset, that being it’s reputation as a good neighbor to the communities it serves."

The suit also claimed that The Wave ad caused "tortuous interference with ongoing and prospective business relations."

Supreme Court Justice Debra James disagreed.

She ruled that the company’s suit was "without basis in fact or law" and ordered Duane Reade to pay both Clark and The Wave all court costs and attorney fees. In addition, she ordered a separate hearing to ascertain what compensatory and punitive damages might be paid to Clark and The Wave.

James ruled that the suit falls under the purview of the Strategic Lawsuit Against Public Participation (SLAPP), passed by the state legislature to insure that developers and large corporations did not use law suits to silence public opposition to controversial projects.

"The laws of the state must provide the utmost protection to the free exercise of speech, petition and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern," the SLAPP Suit statute reads.

In her decision, James wrote, "The court85finds it beyond peradventure that Duane Reade’s lawsuit is one materially related to efforts by Clark to oppose Duane Reade’s application for a permit. 85 No reasonable interpretation of the facts supports the conclusion that Clark’s advertisement did not constitute his effort to report on, comment on, challenge or oppose DOB’s issuance of a permit or Duane Reade’s application for permission to erect a sign."

Wave Managing Editor Howard Schwach said that the dismissal was a victory for the First Amendment.

"One of the main roles of a community newspaper is to provide a voice to those who otherwise would not have a place to speak out," Schwach said. "We fulfilled that role that the First Amendment provides to us by allowing Patrick Clark to speak out on the proposed Duane Reade sign. This is a victory for Clark and for free expression."

Christopher Dunn, a spokesperson for the American Civil Liberties Union, the organization that represented Clark, told New York Times reporter Robert Worth, "For us, this case was important because, ultimately, the First Amendment is about protecting the right of everyday people to criticize the powerful, and that was exactly what Patrick Clark was doing."

While officials at Duane Reade would not comment to The Wave, they told other reporters, "When the case is reviewed on appeal, the company’s position will be vindicated."

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