The Observer Scores One for the First Amendment

Stephanie Wood, Bob Gans, Sunny Leone, Bob Guccione, and Victoria Zdrok at the ribbon cutting ceremony for the grand opening of The  Penthouse Executive Club. (Photo by Patrick McMullan)

Robert Gans, second from left, with Bob Guccione and three representatives of the Penthouse Executive Club. (Photo by Patrick McMullan)

An important legal victory in support of a free press occurred in a Manhattan court on Thursday, made all the more delicious because the victor was the New York Observer.

Here’s what happened.

On December 11, 2012, the New York Post ran a story claiming that “Strip-club honcho Robert Gans is being sued by the Midtown condo board of the city’s ‘sexiest building’ for allegedly allowing an escort service to be run by one of his employees out of an apartment there.” According to the Post, the employee in question was “’girlfriend’ Paula Echevri” and the apartment was the “41st-floor spread at the Atelier Condo at 635 W. 42nd St.”

The next day, the Observer’s Kim Velsey wrote a story headlined “Is New York’s Sexiest Building Too Sexy for Its Own Good?” that summarized the facts, properly cited the Post, and added one of her patented “informed witticisms” as a kicker (“And brokers thought the name Hell’s Kitchen was bad. Soon they’ll be calling it Gomorrah”). The Real Deal did essentially the same, also citing the Post. And so did Curbed.

For some reason, Mr. Gans decided to sue the Observer and The Real Deal (but not the Post, which printed the original article, or Curbed).

His claim was that the Atelier suit did “not allege that he was operating an escort service out of his apartment.” Apparently, the objection was supposed to hinge on the idea that the Post story said that Gans was “allegedly allowing an escort service to be run” whereas the Observer story said that the suit accused Gans of “operating an escort service.”

Didn’t make much of that distinction? Neither did Judge Charles E. Ramos, who granted the motion made jointly by the Observer and The Real Deal to dismiss this ridiculous lawsuit.

In his opinion, Judge Ramos basically said that even if all of the plaintiff’s claims were true, they didn’t amount to “any cognizable legal theory.”

In his lawsuit, Mr. Gans blamed the Observer and Real Deal stories for being “rejected by numerous mortgage lenders on the basis that he was running an escort service.” Oddly, he did not blame the lawsuit itself, or the Post and Curbed articles, not to mention his ownership of establishments such as Scores and the Penthouse Executive Club.

Judge Ramos’s opinion states that “Gans alleges that the Republished Articles constitute defamation per se because they charge Gans with a serious crime, specifically promoting prostitution. This Court disagrees.” Later in the opinion, the judge writes, “The statements are an accurate reporting of the allegations contained [in] the complaint of the Atelier Action that alleges ‘[u]pon information and believe, Echevri is operating an illegal escort service using her unit as her place of business.”

Robert Garson of GS2Law, who defended the Observer, told us after the victory, “This case was important for a number of reasons. This was an example of a litigant abusing the law of defamation and trying to take it to a ridiculous conclusion, in order to bully the media. …The Observer has an unfettered right to report a lawsuit (as long as it’s true) and, in my view, an obligation to be cheeky. The main hallmarks of an oppressive regime are suppression of the press and laughter.”

The judge’s opinion also smacked Mr. Gans, who is a lawyer himself, for lackadaisical preparation.

“Gans failure to provide any additional information beyond his vague and conclusory allegations relating to the special damage he allegedly suffered … is fatal to his cause of action.”

With a long history of success in the pole-dancing business, one would hope that Mr. Gans would value freedom of expression. Either way, he just earned an expensive lap dance courtesy of the First Amendment. Hey now!