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BSG's lawyer alleges libel

Legal letter delivered to The Stylus' editor demands resignation and retraction

Published: Thursday, February 17, 2011

Updated: Monday, February 21, 2011 21:02

A legal document delivered on behalf of Brockport Student Government (BSG) to The Stylus' editor-in-chief, William Matthias, accuses Matthias of libeling BSG Treasurer Kyle Kirchgraber in a column published  Wednesday, Feb. 2.


The document, prepared by BSG's lawyer William P. Smith Jr., of Woods Oviatt Gilman, LLP ,  demands that Matthias resign, print a retraction, take the article offline and  take other action to "diminish the harm he has caused."


Matthias said he has no intention of taking any of these actions.  


"I will not be intimidated into resigning," Matthias said. "And I will not print a retraction unless it is decided in a court of law that my statement (regarding Kirchgraber) constitutes libel, and I have been advised by a media law expert that it does not."


The letter, which Matthias said BSG President Eric May delivered Friday, Feb. 11, refers to an article entitled "Do the Matth: BSG puts student media in jeopardy."  Matthias states in the article that Kirchgraber committed theft by stealing bundles of The Stylus' newspapers left over from the fall semester.   


Kirchgraber presented the bundles to BSG's appropriations committee during a budget meeting. In the letter, Smith said this does not constitute a crime.


" ... any and all assets owned by <i>The Stylus</i> are in fact owned by BSG," Smith said. "To the extent that an officer of BSG acquires or uses those assets for a purpose that is common to both the organization and BSG, it is simply using its own assets."  


The Stylus is partially funded by BSG, with the rest of its revenue coming from advertising. Page 11 of the Feb. 2 issue states that one copy of the paper is free and each additional copy is 25 cents.


May said the letter was written only to protect the organization and to avoid future legal complications that could arise as a result of the article. The letter stated that should Kirchgraber be denied employment as a result of Matthias' comments, BSG could be held legally accountable for the damages.


"In continued discussions with our legal council, we were advised that the actions of Mr. Matthias could potentially jeopardize Brockport Student Government as a whole," May said. "We were advised to release the letter. We have officially documented our communication to protect the whole organization from the public opinions of the editor-in-chief."


May said he is speaking on behalf of all of the BSG executive officers, including Kirchgraber.        


Smith contends in his letter that The Stylus is an organization that is not capable of owning property according to New York state law. Furthermore, Smith argues that even if this were the case, this statement is false by virtue of the fact that these newspapers are jointly owned by BSG and The Stylus.


"… if <i>The Stylus</i> was a legal entity capable of ownership of property, it and BSG would be joint or common owners of that property," the letter reads.


But Adam Goldstein, an attorney advocate at the  Student Press Law Center, disagrees.


"The people of New York own these things," Goldstein said. "If I own my house, I can turn it into a Taco Bell if I want to. Does the student government own the property in this way? No. The money is to serve a specific purpose, and that is to provide opportunities to the students at Brockport. You would call that a bailment."


Bailment is a legal term referring to the temporary transfer of property for a specified purpose.


Goldstein also said Matthias' statement is not libelous.


"If what BSG's lawyer is saying is that he (Kirchgraber) was acting in the capacity of an elected public official, then actual malice - reckless disregard for the truth - would have to be proved in court," Goldstein said. "The fact that Mr. Matthias consulted a lawyer shows that he did not have a reckless disregard for the truth."    


Matthias said The Stylus consulted Goldstein and he spoke with The Stylus' advisor, Marsha Ducey,  prior to publishing the article to ensure that his statements were accurate. Goldstein's advice appeared in the article.


In addition to the argument that this statement was false, Smith's letter cited Freedom of Information Law (FOI) requests submitted to May by Matthias on Feb. 4.


He said these requests could be used as evidence to bolster a case for libel.


Matthias wrote two letters to BSG requesting information, a BSG account status report (detailing expenses for the current academic year) and a copy "of all expenses related to any and all Brockport Student Government end-of-semester parties/celebrations."


Matthias said he took this action amid rumors that BSG spent thousands of dollars on an end-of-semester party.


 Smith's letter denied these requests partly on the basis that The Stylus is an organization within BSG. The letter stated that there are no laws requiring an organization to transfer documents within itself.

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2 comments Log in to Comment

Tue Mar 8 2011 19:27
Truth is an absolute defense to libel in America. Receiving student activity funds from student government does not make The Stylus the property of the student government. As a legal argument that is laughable and so frivolous it would likely get Mr. Smith sanctioned if he made it before a court of law. I heartily encourage Mr. Mathias to make him do that.

Even if Mr. Kirchgraber did not have the requisite mental state to commit theft, he definitely took property to which he had no right, and he exercised control over that property thereby causing harm to The Stylus' advertisers. That makes Mr. Mathias' comment substantially true, which is the threshold for a truth defense to libel.

It also means that The Stylus appears to have a strong civil case against Mr. Kirchgraber for conversion and/or trespass to chattels, if it chooses to pursue that. In addition, Mr. Matthias should look into whether New York has an anti-SLAPP statute, because if so he can likely get court costs and attorney fees in addition to the slam dunk summary judgment.

Steve Kassirer, JD ESQ. (admitteed in CA only), Grad. Student, Counselor Education, The College at Brockprt
Sun Feb 27 2011 20:58
The debate continues. Initially, I would check Mr. Goldstein's credentials. I am an attorney and a home/landowner. I cannot simply "turn my house into a Taco Bell" because I want to, because there zoning laws exist to keep most commercial and residential spaces separate and distinct. Additionally, Mr. Matthias' statement that through consulting with an attorney, he is excused from actual malice of intent is without merit. It is what happened PRIOR to the allegations that matter, not later deciding to consult an attorney because you are accused of a crime.

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