The Hoboken Horse That Roared


Few people might care about the rough and tumble politics of a little town in Hudson County, but bloggers across the country celebrate Roman Brice and Nancy Pincus as First Amendment superstars and protectors of cyber-speech.

Judge Patrick J. Arre awarded $280,000 in fees and sanctions after a contentious legal dispute between the two bloggers, who post under the names Hoboken Horse and Grafix Avenger, and plaintiffs Lane and Kim Cardinal Bajardi, who were active in Hoboken politics and the subjects of their blog posts.

In February, a Hudson County Superior Court judge dismissed the Bajardis’ defamation lawsuit against Brice and Pincus. The suit alleged that several bloggers damaged the Bajardis’ reputations through a series of posts that accused Lane Bajardi of being a political operative of Hoboken Second Ward Councilwoman Beth Mason and suggested he was involved in the theft of emails from Mayor Dawn Zimmer’s office.

Judge Arre ruled that the Bajardis failed to satisfy the heightened legal standard required when a defamation claim involves public figures. “The suit needs to sufficiently support the finding of actual malice or reputational injury,” Judge Arre held. “Therefore, the plaintiffs’ complaint is dismissed.” The Court also found that the blog postings were protected by the First Amendment.

After the suit was dismissed, Brice and Pincus sought reimbursement of their attorney’s fees. On July 8, the Court granted the request, ordering the Bajardis to pay more than $280,000 in fees and sanctions. “The Court finds the Bajardis claims were frivolous, were pursued in bad faith, and with the purpose of harassment, delay and malicious injury in violation of N.J.S.A. 2A:15:15-59.1,” his ruling stated.

Pursuant to N.J.S.A. 2A:15-59.1, frivolous litigation sanctions may be awarded by a New Jersey court when a legal claim is “commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury [,]” or with knowledge that it “was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law”.

In a strongly worded opinion, The Court chastised the Bajardis for “suing first and thinking later”. The Court’s opinion states that the plaintiffs “continually pursued claims with no basis in fact, while misrepresenting the facts to their counsel and to the Court”. It goes so far to find that the Bajardis’ conduct “approaches a fraud upon the Court.”

The Court’s decision sends a strong message to public figures who may seek to use a defamation claim to silence their political foes. It also signals that courts are beginning to consistently apply First Amendment Protections to new media, such as blogs, message boards, and social media.

“Plaintiffs were limited public figures who manipulated their attorney to perpetrate and perpetuate a SLAPP-suit disguised as a defamation case involving weighty issues of constitutionally First Amendment political speech,” Judge Arre stated.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

The Hoboken Horse That Roared