Organization Serving Disabled People Claims Newspaper Discriminatorily Targeted It for Criticism

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In Arc Mercer, Inc. v. MediaNews Group, decided Wednesday by N.J. trial court judge Brian McLaughlin, Arc Mercer—”a non-profit organization serving the needs of the persons with developmental and intellectual disabilities”—sued the newspaper The Trentonian and one of its journalists under the N.J. Law Against Discrimination. To quote the court, the journalist, “alerted to the planned attendance of several prominent elected officials at a charity event held at a venue co-owned by an allegedly controversial figure, wrote a series of opinion articles critical of said elected officials” and likewise criticizing “Arc Mercer for hosting the gala at the venue.”

Arc Mercer argued that this violated the LAD, because “Defendants unlawfully discriminated against Plaintiff by targeting Plaintiff on the basis of the disabilities of its consumers in order to incite others, and attempt to incite others, to refuse to do business with Plaintiff”:

In 2022, Plaintiff, like multiple other businesses and politicians, chose to host its annual fundraising gala at [the restaurant and catering venue] the Stone Terrace…. [T]he Arc [believes it] is the only organization that has held an event at the Stone Terrace since June 2020 that had a client base of persons with developmental and intellectual disabilities….

On June 11, 2020, Joseph Russo, the head chef and partial owner of the Stone Terrace at the time, published statements on social media that were racially offensive. These statements included slurs towards Black Lives Matter, as well as calling George Floyd protesters “evil.”

The Stone Terrace experienced a considerable backlash from the local community including protests and boycotting of the venue. John Henry and Catherine Henry, owners of the Stone Terrace, released a statement referring to Russo as their “former executive chef” and apologized for the offensive statements by Russo, and confirming that Russo’s views did not reflect the Stone Terrace’s views or policies, and that the Stone Terrace supports the Black Lives Matter Movement.

Since June of 2020, numerous significant other organization, business and political official/candidates have had events there with no comment or objection by Defendants. These parties include, but are not limited to, the Hamilton Area YMCA, the Hamilton Township Economic Development Advisory Commission, and the Princeton Mercer Regional Chamber….

While remaining silent with respect to these other organizations, businesses and political officials/candidates, Defendants singled out Plaintiff with a series of articles designed to incite or induce members of the public to refuse to do business with Plaintiff, make charitable contributions to Plaintiff, attend Plaintiff’s gala, and/or detrimentally impact the Plaintiff’s reputation and marketability, purportedly because of Plaintiff’s decision to host its gala at Stone Terrace.

On November 11, 2022, Parker and the Trentonian published an article titled, “Arc Mercer stone-cold wrong about gala venue,” quoting Dr. Martin Luther King and accusing Plaintiff of “pos{ing} a significantly different perspective on justice, equality and tolerance” by hosting its upcoming annual fundraising gala on November 18, 2022, at the Stone Terrace, an allegation not asserted against any other of the significant number of organization, business or political officials/candidates that had hosted events at the Stone Terrace subsequent to June 2020.

The November 11, 2022, article republished the social media comments made by Joseph Russo in June 2020 containing racially offensive material, while accusing Plaintiff of being guilty of racial insensitivity and racism by hosting its gala at the Stone Terrace. No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted.

Four days later, on November 15, 2022, Parker and the Trentonian followed up on its initial article by published a second article, now accusing Plaintiff of “posing Black people” and of being “complicit” in the racially offensive comments that the former head chef had posted over two and one-half years previous to the gala. No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted.

Not content to let matters rest, on November 22, 2022, Parker and the Trentonian published a third article about the Arc gala that labeled the event as an act of “hate” comparable to the “brutal attack on our LGBTQ family in Colorado Springs,” while calling for the public to “speak up and act before hate overwhelms and drowns us all.” No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted. This third article in particular called for the public at large to “act” by refusing to do business with or support the Arc.

On November 26, 2022, Parker and the Trentonian published a fourth article titled, “Liberian outreach fails as smoke screen for abhorrent behavior,” that now accused the Arc of using its Liberian outreach to “distort issues involving racism.” Within the two and one-half years since the publication of the racially offensive material on social media by the Stone Terrace’s former head chef, dozens of other individuals, businesses and organizations have hosted events at the Stone Terrace, but Plaintiff has been the only entity targeted by Defendants in this manner….

The articles written and published by Defendants were intended to, and/or had the effect of, inducing and/or inciting others to not do business with the Arc, not make charitable contributions to the Arc, not attend the Arc’s fundraising galas, and/or detrimentally impact the Arc’s reputation and marketability.

Plaintiff was targeted by Defendants because its customers are persons with developmental and intellectual disabilities. There is no other reason for distinguishing Plaintiff from the many other individuals, businesses and organizations have hosted events at the Stone Terrace since June 2020 and who were not attacked by Defendants in this way….

The defendants moved to dismiss, and the court concluded that plaintiff had sufficiently alleged “intent to discriminate on the basis of disability,” though “any connection between the articles and Plaintiff’s disabled clients is attenuated at best.” (Actual proof of discrimination isn’t required at the motion-to-dismiss stage.) But the court apparently accepted defendants’ arguments that (to quote defendants’ reply brief),

The Columns did not call for any action against the Arc other than urging the three local mayors being honored at the organization’s fundraising gala to not attend. Discouraging people from attending a charity gala is not prohibited by the plain language of the LAD because, as Defendants set forth in their opening brief, [the relevant LAD provisions] encompass only the refusal to engage in commercial transactions.

The court concluded that it therefore didn’t have to reach defendants’ First Amendment defense. (It seems to me that the newspaper ought to have an open and shut First Amendment defense here, though I’m not sure the court would have agreed, given its somewhat cryptic remark that, “To this Court, this expressive speech [in 303 Creative v. Elenis, which involved the web site designer who didn’t want to create web sites for same-sex weddings -EV] is distinguishable from the instant news articles Plaintiff journalist was paid to produce.”)

Elizabeth Seidlin-Bernstein (Ballard Spahr LLP) represents defendants. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

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