Republicans’ challenge of defamation case tests new state law targeting frivolous lawsuits

By: - January 25, 2024 6:54 am

A Bergen County defamation lawsuit against Republican leaders of Englewood Cliffs could be the first test of New Jersey's new law intended to crack down on lawsuits filed to stifle critics. (Getty Images)

Republican officials in Englewood Cliffs have asked a state judge to dismiss a lawsuit accusing them of defaming a borough attorney in campaign material, the latest volley in a legal fight regarded as the first test of a new state law intended to crack down on lawsuits meant to silence critics.

Attorneys for Mark Park, Zhi Liang, and Rivka Biegacz — Republicans elected in November as mayor and borough council members, respectively — say the complaint Albert H. Wunsch III filed against them in October stifles constitutionally protected political speech and should have been tossed under a new law targeting civil lawsuits known as SLAPPs, short for strategic lawsuits against public participation.

A hearing is scheduled Friday afternoon in state Superior Court in Bergen County.

The fight started after the Committee to Elect Republicans for Englewood Cliffs sent out mailers and emails supporting Park, Liang, and Biegacz that pictured Wunsch and described him as “EC Democrats Leader and Defacto Mayor.”

The materials also pictured Democratic mayoral candidate Kris Kim as “Wunsch’s ‘Yes’ Man’” and accused Wunsch of orchestrating a “corrupt scheme” in an affordable housing dispute that ended in a costly settlement. Wunsch serves as the borough’s special counsel.

“Paid $800K + TAXPAYER MONEY TO SELL US OUT. Wunsch gets paid to run the Democrat Party. IS THIS ILLEGAL BEHAVIOR?” one email stated. “END FURTHER CORRUPTION IN OUR TOWN.”

Wednesday, Wunsch told the New Jersey Monitor that the only thing true about the GOP messaging is that he is a Democrat.

“There’s never been a question as to my integrity, and yet they felt the need to come after a private resident and use me as a springboard for a political campaign,” he said. “If I’m running for office, I’m fair game. I wasn’t running for office. Why wouldn’t they have attacked the two candidates that were running for council?”

Besides Park, Liang, Biegacz, and the committee, Wunsch also named committee treasurer Penny Rousouli and former councilman Timothy Koutroubas in the complaint, saying both were involved in the mailers.

In November, Judge Mary F. Thurber agreed the mailers were defamatory and ordered the defendants to send out new mailers and emails retracting their claims, publish a public apology, and say nothing further about Wunsch.

She noted in her order that no defendants appeared in court or secured attorneys. The defendants later said that’s because they were busy trying to get elected, and one said they were never served the complaint.

They now have attorneys who have since urged Thurber to vacate her November order and dismiss Wunsch’s complaint under New Jersey’s anti-SLAPP law, which Gov. Phil Murphy signed in September and took effect in early October. Thurber did stay her order until she is done hearing arguments.

The attorneys say Wunsch’s lawsuit suppresses legitimate speech on matters of public concern, and Thurber’s order violates the First Amendment, which generally bars the government from prohibiting future speech and compelling people to say things they don’t want to say, like an apology.

“This should be deeply troubling to all people who value freedom of speech because the speech the court declared to be defamatory was campaign speech on matters of public concern and, to the extent they were about Wunsch, he is a public official and a public figure who must establish by clear and convincing evidence the statements were false and made with malice, something he has not come close to establishing,” said attorney Donald F. Burke, who represents Park.

Bruce Rosen, a media law attorney who helped craft New Jersey’s anti-SLAPP law and testified in support of its passage, called the Englewood Cliffs case “patently frivolous” and “the perfect application of the new anti-SLAPP law.”

“The prior restraint — when you’re told you can no longer say something — is the most outrageous part of it. It’s a First Amendment violation,” Rosen said. “This is government speaking about government. It’s at the core of free speech. So it’s going to get the highest protection from all courts, or it should.”

In Englewood Cliffs, a Bergen County borough just north of the George Washington Bridge, politics has long been divisive, with a councilwoman resigning in 2021 after complaining of personal attacks and bullying by a previous mayor. The council is split, with four Democrats and two Republicans, and the mayor, Park, is Republican.

An earlier version of this story should have said Kris Kim was a candidate for Englewood Cliffs mayor.

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Dana DiFilippo
Dana DiFilippo

Dana DiFilippo comes to the New Jersey Monitor from WHYY, Philadelphia’s NPR station, and the Philadelphia Daily News, a paper known for exposing corruption and holding public officials accountable. Prior to that, she worked at newspapers in Cincinnati, Pittsburgh, and suburban Philadelphia and has freelanced for various local and national magazines, newspapers and websites. She lives in Central Jersey with her husband, a photojournalist, and their two children.