EMMA SETS TWO thick file folders on the conference table. “Goodness,” Catherine says, “that’s a lot of research in a short period of time. Walter wasn’t wrong when he sang your praises.”
Emma blushes a little and waves it off. “I logged some late hours, that’s all. It felt like I was back in law school at finals time.”
“Excellent. Our goal is to file a motion to dismiss all or part of Henryks’s lawsuit. Let’s start with a general overview. Is Henryks’s complaint legally sufficient? Did Sparks set forth the basic elements of a claim for defamation?”
“Without a doubt,” Emma says, and she proceeds to count out the elements on her fingers. “The complaint alleges that Britta made a series of false statements about Henryks, that these false statements were communicated to a third person or persons, in our case to the general public, and that the publication caused damage to Henryks’s reputation. Given that she accused him of being a ‘Nazi collaborator,’ a ‘Nazi agent’ and a ‘traitor,’ the statements are considered defamatory per se, and Henryks’s injury is presumed.”
Catherine is impressed with Emma’s presentation. She nods her approval. “Your grandmother and I are very lucky to have you, Emma. And I can see the close relationship when the two of you are together.”
“We’ve been together almost all my life,” Emma says. “My father was out of the picture when I was very young, I don’t even remember him. My mother worked every day, long shifts in the hospital. Bubbe would stay with me. When my grandfather died, she moved in with Mom and me. She practically raised me. You could say she became my primary caretaker. Now, I guess the shoe’s on the other foot, but the time I spend with her is precious to me.” Catherine smiles with the suspicion that there is an interesting story about the two of them that may or may not come out in the course of the representation.
“Getting back to Henryks’s complaint,” Emma says, “since my grandmother doesn’t deny she made the statements, Sparks achieves a prima facie case without calling a single witness. The case will rise or fall on the strength of our affirmative defense.”
Catherine nods. “I understand that ‘traitor,’ ‘Nazi agent’ and ‘Nazi collaborator’ are defamatory on their face. But what about ‘liar,’ ‘informer’ and ‘betrayer’? Can’t they constitute mere name-calling? Is it possible to eliminate those statements? Shouldn’t we move to strike them from the complaint?”
Emma spreads her hands. “What’s the point? Nazi collaborator, Nazi agent and traitor are enough to get the case to the jury without any other words. Judge Wilson is not going to dismiss the case because a few of the words might happen to be name-calling. Why does it matter if he strikes some of the words? It doesn’t make the case go away and we don’t really achieve anything. And, by the way, I’m not so sure that informer and betrayer are merely name-calling.”
“Meaning?”
“Taken in context, they can refer to criminal activity. Why don’t we just get our affirmative defense on file, allege that the statements are all true, and proceed to defend the case?”
“Three reasons,” Catherine says. “First, any of the statements that are stricken lessens our evidentiary burden at trial. For example, we won’t have to prove Henryks is a betrayer or a liar. Secondly, if Wilson strikes a portion of the complaint, it will be a victory, albeit small, in the court of public opinion. For at least a portion of the morning, we will have gone on the offensive and succeeded in obtaining a ruling in our favor. Thirdly, and most importantly, filing and briefing a motion to strike buys us time, and we need every minute we can get. So, do we have grounds to strike any of the words?”
“Maybe liar. I think all the others would survive.”
Catherine is not convinced. “Emma, when we talk about traitor, informer and betrayer, aren’t those really statements of Britta’s opinion? Aren’t they protected by the First Amendment? When we comment about someone in the public spotlight, aren’t we allowed to state our opinion without liability? Isn’t that a recognized privilege? Can’t I express my opinion that the president is a failure or that he’s lying or that he is incompetent?”
“You can because he is the president. He is a public official. The Supreme Court has held that a public official cannot recover for a false and defamatory statement unless he can show that the person who made the statement did so with actual malice, which means that the person knew that the statement was false before he made it. Sorry, Henryks is not a public official. He’s a tavern owner.”
“But didn’t the Supreme Court expand the doctrine to include people who were public figures as well as public officials? Isn’t Henryks at least a public figure?”
Emma shakes her head. “Henryks wouldn’t qualify as a public figure either. A public figure is someone who voluntarily thrusts himself into a particular public controversy, and as such, he invites comments and opinions about himself.”
“What could be more controversial than what’s going on right now?”
“Henryks didn’t exactly thrust himself into this controversy, did he? My grandmother was the one who thrust him by spray-painting those derogatory statements.”
“Hmm,” Catherine says, “but I would like to include traitor, informer and betrayer in our motion anyway. What do we have to lose? If Wilson denies it, we’re no worse off. We’ll move to strike them, notwithstanding. Let’s draft our motion. We can file it in two days. What would you think about—”
Their conversation is abruptly halted by the crashing sound of broken glass and the squeal of automobile tires. Catherine rushes to the reception room to find the front window shattered and an angry Gladys pointing to a dark red brick on the floor. On the brick is a painted message: “Death to the Jew-bitch.”
BY THE TIME Liam arrives at the office, there are two CPD patrol cars, lights flashing, blocking off the northbound lanes of Clark Street. Liam jumps out of his car at the end of the block and darts for the door but is stopped by a uniformed officer. “Hold on, fellow. Nobody’s going in right now.”
“That’s my wife in there,” Liam frantically declares. “That’s her office. Is anybody hurt?”
The officer shakes his head and steps aside. Inside, a plainclothes detective is taking a statement from Gladys while an evidence technician is examining the brick.
“Mrs. Stein told me she has received threatening phone calls that caused her to shut off her landline,” Catherine says to the detective. “She now uses her cell phone exclusively.”
“What do these, uh … so-called threatening callers say?” The detective’s tone and expression convey a decided lack of interest in Catherine’s response, as though the question was required, and he couldn’t care less about the answer. His attitude peeves Catherine.
“Excuse me,” Catherine says. “The so-called callers spew anti-Semitic threats. They say that the Nazis should have killed her, that the wall should be painted with her blood. They call her a Jew-bitch. I wouldn’t refer to them as ‘so-called’ threatening callers. Do you understand this is all about The Melancholy Dane and the lawsuit?”
The detective looks up from his notepad. “Look ma’am, she didn’t report any of those alleged calls, did she? I mean, we have no record. It doesn’t sound to me like she felt too threatened.” He shrugs. “As to whether or not this has anything to do with her dispute with The Melancholy Dane, do either of you have any reason to believe that Mr. Henryks is involved in any way with either the prank phone calls or this mischievous window breakage?”
Catherine’s anger intensifies. She places her hands on her hips. Her face is red. Her voice gets louder. “Prank calls? You call them prank calls? Mischievous breakage? Is that how the Chicago Police Department now chooses to refer to hate crimes, Officer Martin? Are they mischievous?”
Martin tries to hide a smirk rising in the corners of his mouth. “Hate crimes? Really? This was nothing but a brick. Given what your client wrote on Mr. Henryks’s restaurant, I think the message on the brick was pretty tame.”
Liam realizes that the matter is rapidly getting out of hand. He steps in front of Catherine, holds her back and says, “Death to the Jew-bitch? That’s tame to you? Don’t you dare minimize this act. You and I both know it’s directly tied to the signs on the walls of The Melancholy Dane. It’s retaliation and you should be concerned that it could escalate to more serious acts than threatening phone calls and criminal damage to property. You just asked Ms. Lockhart if there might be any reason to suspect Ole Henryks of being involved. Well, I can think of six graphic reasons.”
“Sir, I asked her a fair question. Does she have any evidence that ties the phone calls or the brick to Mr. Henryks? I doubt that she does. I know Mr. Henryks. I’ve been in his restaurant many times, and he’s just not the type to go around threatening old women or throwing bricks. I’d say that your client is much more threatening than old man Henryks.”
“Given your mindset, detective, you have no business being assigned to this case.”
“Tell that to my captain; he’s the one who sent me over here. If he wants to consider it a hate crime and pull me from this case, well, that’s up to him.” The detective closes his notepad, turns to Catherine, touches the bill of his cap and says, “Have a nice day, ma’am.”
Catherine sits down hard, her face in her hands. “Can you believe it, Liam? The officer thinks it’s a prank. ‘Death to the Jew-bitch.’ And he asks me whether this has anything to do with Henryks.”
Liam shakes his head. “That’s not exactly what he said. He asked if you thought Henryks was involved with the threats.”
“Pranks, Liam, he said pranks.”
“I know. But I’m sure that Henryks didn’t drive over and throw that brick.”
“There are plenty of people who would. He has followers. He’s a popular man, especially among the cops.”
“Where’s Britta?”
“She’s not here, thankfully. She’s at home.” Catherine tips her head toward the rear of the office. “Emma’s in the conference room.”
“How is she?”
“More angry than upset. What are we going to do now?”
Liam places his arm around her. “You made the report. From now on we’re going to be extra careful. You’re going to keep your door locked. I will join you and Britta here at the office whenever you do your interviews.”
Emma walks out to join them. “I have a thought,” she says. “Why don’t we call the media, have them come out and take pictures, and report what’s happened. So far, the press reports have been one-sided: favorable for Henryks and very harsh to my grandmother. Everyone pities poor Mr. Henryks. Maybe the public should see the other side. With a court case coming up, we’ll need jurors with open minds, won’t we?”
Liam looks at Catherine and smiles. “You have a very bright assistant here. I think she’s right on the money.”
But Catherine shakes her head. “I don’t try my cases in the media. Besides, Sparks would counter with a barrage of interviews. He’s much better at manipulating the media than I am.”
“Cat, there’s nothing to manipulate, you have two clear episodes of criminal intimidation and hate crimes. The public should know. Emma’s right; let them keep an open mind.”
Catherine is resolute; she won’t consider it. “I can’t prove that Henryks was behind any of this; not the phone calls or the brick. If we call in the media, give them an interview, put it all out there, with the obvious implication that Henryks is somehow behind it, it’ll backfire. We have no evidence who did this. The public might see it as a distraction, a ploy to divert attention away from Britta’s spray-painting escapades, for which there is ample evidence, including her admissions. Certainly Sparks would see it that way.”