July 17, 2001
IN THE SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BANCO NACIONAL de MÉXICO, S.A.
Index No. 00603429
MARIO RENATO MENÉNDEZ RODRIGUEZ,
AL GIORDANO, and
THE NARCO NEWS BULLETIN,
MOTION AND MEMORANDUM TO FILE AS AMICUS
BY REBER BOULT
IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
GENERAL INTEREST OF THIS AMICUS
I have practiced law most of the time since 1964. I have been licensed and had offices in Tennessee, Georgia and New Mexico. I have been admitted to practice before the Supreme Court of the United States, five United States Courts of Appeals, several United States District Courts, the United States Court of Military Appeals, and the Tax Court of the United States. I have had full time jobs with the Southern Regional Office of the American Civil Liberties Union, Federal Public Defender for the District of New Mexico, and with organizations defending the rights of American Indians and people in the U.S. military abroad. My private practice has included a great deal of defense of those accused of crime, most often federal crime. I have for the last 15 years been a volunteer Legal Director for the ACLU of New Mexico. I have worked as a sales clerk, as a mechanic, and in the U.S. Navy.
By professional background I have a strong interest in this case. My association with studying and advocating for enforcement of the Constitution and defending it from infringement started at Vanderbilt Law School almost 40 years ago. More specifically, I am a citizen, living outside of New York, who reads www.narconews.com, and whose words have been published on that international Internet site.
An oft-quoted lodestar is Justice Brandeis' warning that "dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479 (1928)(dissenting opinion). It's used in the hard cases. Less often quoted, because less often needed, is the sentence that precedes it: "Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers." Id. In this case the dangers to liberty are from men of power, ill-meaning and with perfect understanding. That we do not traditionally think of them as "rulers" doesn't lessen the danger.
A journalist, Al Giordano, formerly with the Boston Phoenix and former talk radio host, speaks through a web site named narconews.com. He dispatches from south of the U.S.-México border, from, in words he quotes from Simón Bolívar, "somewhere in a country called América."
Narconews disseminated an investigative piece by Mario Menéndez, the editor of a newspaper in Yucatán. Menéndez' gumshoe work reported that Banamex general director Roberto Hernández-Ramirez was a "narco-trafficker" and a money launderer. Banamex sued Menéndez for defamation. A Mexican court dismissed the suit.
Hernández and his bank (it's now merging with CitiBank) went looking for a court more sympathetic to the rich and powerful and less friendly to free speech. They came to New York and again Banamex (again oddly not nominally joined as a plaintiff by its President, the target of the accusations) sued for defamation, this time adding Giordano and narconews. It seems to claim jurisdiction here because Giordano had repeated some of Menéndez' reportage at a couple of appearances on a trip to New York.
So a person not in the United States puts words written in a newspaper not in the United States about a person and business not in the United States onto a web site emanating from outside the United States. A court in the country where all of the involved entities are (until, that is, a United States bank bought into the deal) says it's all right to publish those words.
When the people uttering those words have to come to the United States to defend those words, free speech suffers.
When those people lack the money to come to the United States to defend those words, free speech fails.
When speech is less free in the United States than in other countries the United States is a hypocrite.
When the United States claims jurisdiction over all words appearing on the internet, wherever uttered, the United States claims to be the world's censor.
So far, the first amendment battles over internet censorship have mostly been over efforts by well-meaning people seeking, sometimes too zealously, laudable ends. But the effort to censor the defendants here has no such redeeming value. These censors are rich and powerful. These censored are broke, bled empty by having to go abroad to defend. These censors are from the dominant elite. They arrogantly complain that Mr. Giordano "has no job or other means of supporting himself." (Plaintiff's Memorandum at 7) These censored are of the less powerful classes, uttering the cries of the less dominant races.
These ill-meaning men are censoring speakers who are more like those Justice Brandeis lauded in Whitney v. California, 274 U.S. 357, 377 (1927)(dissenting opinion):
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty.
Are we still today "courageous, self-reliant [people], with confidence in the power of free and fearless reasoning applied through the processes of popular government . . ." id.?
In 1776 one of the "repeated Injuries and Usurpations . . . having in direct Object the Establishment of an absolute Tyranny" and impelling us to declare independence was "transporting us beyond Seas to be tried for pretended Offenses." The Declaration of Independence.
SPECIFIC INTERESTS OF THIS AMICUS
In the spring of 2001, Al Giordano published a daily series of commentaries and translations from Spanish to English about a historic indigenous rights caravan through 12 Mexican states, from Chiapas to Mexico City. My wife, who is from México, and I had a personal interest in following the news about the caravan because her brother was participating in the two-week motorcade. There was very little information available in the English-language press about this historic current event. The Narco News Bulletin offered more than two dozen reports from the caravan route, as well as web pages exploring the historic roots and progress of the Mexican indigenous rights movement and their relation to the site's theme of drug policy.
I did not know Mr. Giordano, but I contacted him by email at firstname.lastname@example.org and asked if he could get a message to my brother-in-law along the caravan route, which he did. My wife and I then traveled to Mexico to join the final days of the caravan. We looked for Mr. Giordano in his neighborhood (a working class section of a town that is majority indigenous) and spoke to his neighbors (who regard him highly). They informed us that he was off covering the caravan.
Later Mr. Giordano published my observations about the caravan.
I finally met Mr. Giordano two months later, in May 2001, when he spoke at an international drug policy conference in my city of Albuquerque and at a meeting of the New Mexico Green Party in Santa Fe.
It's entirely obvious to me that Mr. Giordano has no assets of appreciable value. Conventional legal advice would tell him not to respond to any purported legal process because service would not be valid and even if a court ruled otherwise he is judgment proof. He told me, when we met in Albuquerque, that he was actively defending the case because he felt that the plaintiff was seeking to make bad law that would harm all Internet speech as well as independent projects of citizen-journalism like his own. I share his concern.
Free speech law evolves from the judiciary. I have a deep concern that the plaintiff is trying to provoke to establish dangerous precedents that strike at the heart of the protections given by out state and federal constitutions to address grievances and seek redress.
Banamex asks the Court for the kind of holding that could subject me to expensive litigation far from home on account of the article I wrote that was published at www.narconews.com. And I confess that an element of my interest here is personal indignation (I prefer to characterize it as professional indignation) that a big law firm could allow itself to be hired to so transparently offend basic principles of fair play and justice (as well as trifle with the Canons of Ethics). The firm makes legally absurd claims, resulting in factually absurd claims of damage to a billionaire and his bank, all in order to silence voices the client and/or the firm wish would go away. The client and/or the firm certainly are announcing that they perceive these voices credible and important, enough so to fight dirty. The billionaire who claims to be defamed doesn't even join the suit, apparently thinking he can protect himself from discovery with his corporate veil. 1 By being the plaintiff, Banamex seems to be piercing its own corporate veils perhaps inviting proof that its new parent launders money.
1 Or perhaps his lawyers foresee that the coming inquiry under New York Times Co. v. Sullivan, 376 U.S. 254 (1964) will reveal that he is a sufficiently public figure that the statements, clearly made without malice, are protected by the first amendment. But this same analysis should also apply to and through his bank.
It's especially odious to me that the plaintiff and its law firm 2 mount their attack based on what was said at a university. In the ACLU there is a rule of thumb often suggested on the university context: "The remedy for bad speech is good speech." Plaintiff here offers no good speech (again suggesting that defendants are telling the truth); instead, it sues for silence.
2 I am aware that ad hominem observation is usually poor rhetorical technique in legal advocacy. But at some point the quality of the opposition's presentation betrays an impermissible agenda or abysmal analysis. After all, courts instruct juries that untruth in one part of a witness' testimony affects the overall believability of that witness, as does bias. It may be more so when analysis and reasoning are at issue.
Obviously the case is not about what Mr. Giordano said at Columbia Law School and on a non-profit radio station. Rather, these are plaintiffs' bootstraps to punish a Mexican journalist and close a web site.
It's troubling to see forum shopping go worldwide 3, and so escaping from concepts like res judicata.
3 "According to Tamsin Allen, a specialist in media law at City law firm Bindman and Partners, Banamex is practising a form of 'forum shopping'. 'It happens quite often,' says Allen. 'What it means in effect is that the bank is looking around for a forum which is going to give it the best result."' Sean Dodson, Hacks Hit In Drugs War The Guardian (London)(June 25, 2001), http://media.guardian.co.uk/mediaguardian/story/0,7558,512177,00.html
I infer from press reports I've seen and heard about that the lawyers are assiduously avoiding repeating their more scurrilous allegations, extortion and illegal presence in México for example, in places unprotected by the defamation privilege accorded to pleadings.
Banamex shamelessly injects its newly acquired parent into the mix. (Plaintiff's Memorandum n.6) The world's largest financial institution is paying $12.5 billion for a bank that is cobbling a Kafkaesque attack on Mr. Giordano that launches with the charge that he "apparently has no job or other means of supporting himself" (Plaintiff's Memorandum at 7) 4. The law firm has tipped its client's hand (or its hand). This is of course what the case is about-the moneyed believe their money entitles them to silence the unmoneyed.
4 One of the Memorandum's bizarre twists invests Mr. Giordano with the capability to get the United States government to freeze Banamex' assets.
Does Banamex' law firm think Citigroup is its after-acquired ticket into New York's courts (a fitting parallel with the illogic of its claim that Mr. Giordano's coming to New York to defend affects the jurisdictional calculus)? Has it been toiling so long and so deep in the moneypits it thinks others, like it, measure justice by the thickness of its clients' purses? Is it blinded by Citigroup's CEO getting paid $150,000,000 last year? 5 Is it emboldened by its knowledge of Citigroup's massive contributions to politicians? 6 Is it too arrogant to care that maintaining this case adds credence to the widespread charge that Citibank particularly exploits the poor? 7 Is it disdainful of press accounts that keep finding Citibank's fingerprints on decades of laundering the money of dictators and drug dealers? 8
5 As reported in Carol J. Loomis, 'This Stuff Is Wrong' FORTUNE 73, 78 (June 25, 2001)(highest CEO pay in the nation).
6 As in, for example, being the largest campaign contributor to a South Dakota Senator, All things Considered, NATIONAL PUBLIC RADIO (June 21, 1901).
7 See, e.g., Andrew Clark, Fed Clears Citigroup Buy of Banacci, REUTERS (July 16, 2001), http://dailynews.yahoo.com/h/nm/20010716/bs/financial_banacci_dc_3.html.
8 See, e.g., Tim Golden, Citibank Criticized for Slow Response to Money Laundering Scheme, NEW YORK TIMES (February 27, 2001), http://www.globalpolicy.org/nations/corrupt/laundering/2001/0227cb.htm; US Banks Lax on Dirty Money, BRITISH BROADCASTING COMPANY (February 5, 2001), http://www.globalpolicy.org/nations/corrupt/laundering/2001/0205us.htm; Marcy Gordon, Offshore Banks Rife With Laundering, ASSOCIATED PRESS (February 5, 2001), http://www.transnationale.org/anglais/sources/finance/paradis__offshore_laundering.htm; Ken Silverstein, Million Dollar Hideaway, MOTHER JONES (Nov. 2000), http://www.motherjones.com/mother_jones/ND00/offshore.html (featuring Citibank and saying "Financial institutions have plenty of names for the places where the wealthy now hide their money from the IRS. They just don't call it cheating.")
The attack dances further into the absurd with the proposition that if a person can afford one lawyer or find one to work free or cheap, he can afford or find two. (See Plaintiff's Memorandum at 1, 11, 26-27) Lest the reader misunderstand, the writers assert a corollary: when they've further depleted Mr. Giordano's resources by his having to come to New York to defend, it shows he can dig deeper and spend more. (Plaintiff's Memorandum at 26) They buttress their house of illogical cards by attacking him for trying to raise money for defense. (Id.)
Banamex Raises Irrelevant Issues To Smear Defendants
The Alleged "Illegality" Of Giordano's Presence In Mexico
Because my wife is from México and we have family on both sides of the border, and because I have practiced law in this border state of New Mexico, I am generally familiar with Mexico's immigration laws.
I also have some knowledge of Mr. Giordano's perfectly legal presence in Mexico because when he arrived in Albuquerque in May of this year, invited to speak at various forums, he had his Mexican visa-an official Mexican government document granting him permission to be in that country-with him. Apropos of Banamex' schizophrenic alternating claims of either poverty or wealth by Giordano, it's interesting that he arrived in Albuquerque by Greyhound bus, after crossing the border into El Paso by foot, because he couldn't afford to fly to Albuquerque for the speaking engagement (plaintiffs' law firm will undoubtedly have trouble with the fact that people who speak on the side of issues that oppose their own seldom get paid for their speeches and usually don't even get their expenses reimbursed). I picked him up at the bus station. It was the first time I had met him face to face.
"Giordano declines to divulge his address or telephone number, even to the Court. Instead, he insists that all communications with him be by e-mail, or through the Massachusetts attorney he has retained to represent the Narco News Bulletin. Giordano does not explain on what basis he is residing in Mexico, or whether he has Mexico's permission to reside there. Indeed, given that he apparently has no job or other means of supporting himself in Mexico, there is ample reason to suspect that he cannot reside there legally" (Plaintiff's Memorandum at 7 n.7)
"If he does live in Mexico, he may very well be doing so illegally . . . ." (Id.)
This relevant only in that is signifies of Banamex' agenda: use the courts to harass, malign and, above all, silence.
Banamex' law firm's claim that "Giordano declines to divulge his address or phone number, even to the Court." is demonstrably wrong and, apparently, knowingly false. I understand Mr. Giordano has told the court what he has told me-he gave Judge Harold Baer's office his telephone number and it used that number to call him. 9
9 This is not to say that plaintiff or the public can be given Mr. Giordano's physical address without his life being jeopardized. I say that as someone with an understanding of Mexico; others can infer the same from a statistic-during its last President's watch 29 journalists were assassinated. Mr. Giordano has exposed criminals, paramilitaries, and corrupt officials.
2. Banamex' Using After-the-Fact Events to Establish Jurisdiction.
It is simply outrageous that Banamex' law firm tries to use of events after it filed the lawsuit in a desperate stab at establishing jurisdiction in New York. Lawyers know that's not right. It looks like the litigation technique of "just say anything to keep the ball, and the enemies' expenses, in the air." This is another self-revealing admission of defeat. More devils are in the details:
· New York's courts are notoriously backlogged. Litigants aren't expected to feel sorry for the courts' predicament. Nor should they use the severe backlog to harass the opposition because justice delayed is justice denied to those who must spend time and money to get rid of a case their opponent knows it will not win it a judgment.
· New York's liberal allowance of interlocutory appeals keeps forum shoppers' unmeritorious claims in court longer and at greater expense to the hapless defendants.
· New York City is expensive. The cost of its rent, its food, its lodging can break visitors of modest means. Banamex uses a Frank Sinatra approach: If they can break you there, they can break you anywhere, it's up to you, New York, New York.
Plaintiff, a large corporation in México, sues impecunious Mexican entities in New York. The defendants seek donations (inevitably mostly from prospective donors with limited donable income) to help defend in New York. In other words, seeking charity makes one not a charity case.
Without enough to establish jurisdiction over events that took place in Mexico regarding the commentaries on www.narconews.com, Banamex repeatedly refers to Giordano's efforts to fight back in New York. It refers five times in its Memorandum to post-filing activity in New York, specifically, a publicity event for the site, fundraising for this case, and preparation of the defense. (Plaintiff's Memorandum at 8, 16. 26, 27) It adds a circumstance that it admits is irrelevant-readers live in New York. (Id. at 8)
The implicit argument is that New York's pre-eminence as a media, financing, and intellectual center burdens its courts with jurisdiction over people from elsewhere who got sued here.
Some fallacies are so fallacious that it's unproductive to try to argue against them. One of these is that when poor people try to raise money to defend lawsuits they become poor no more. (See Id. at 27, presenting the idea hand in hand with saying money spent for a trip to publicize the site and raise money to defend should have been spent on defense and would have been more than a drop in that bucket)
Big law firms with billionaire clients are not the most reliable judges of who is "too poor to defend himself." This firm knows, though, what it would charge to defend a case like this; Mr. Giordano says he has been quoted retainers of $50,000 to $250,000 (a lot more than plane tickets, already hard to afford). This firm knows, too, that every day Mr. Giordano spends asking for funds is a day he is not reporting from Latin America on the drug war. It knows that last month he suspended journalism to work on defending this case.
The International Internet Context,
or What They're Saying About Us
The European Commission is considering adopting a country-of-origin rule to govern internet speech. This would harmonize internet governance with other European laws and regulations. 10 "Publishers, merchants and others have complained that [applying the laws of the country where the consumer is situated] would smother e-commerce under legal obligations and be so burdensome for small businesses as to make Internet sales impractical for them." 11
10 Paul Meller, Europe Panel Is Rethinking How It Views E-Commerce, NEW YORK TIMES (June 27, 2001), http://www.nytimes.com/2001/06/27/technology/27CROS.html?todaysheadlines=&pagewanted=print.
The country-of-origin here is México. México has protected this speech. 12
12 Banamex chides Mr. Giordano for citing New York law. This seems to obliterate the distinction in conflict of laws between substantive laws and laws pertaining to getting into court or not.
An internet business magazine warns "the Internet stands a good chance of becoming hopelessly entangled in every country's laws." 13 Members of Congress are "squawking" about the "extraterritorial impact" of European directives. 14 Will we listen when México squawks about our interference with its journalism and web sites? Most of the article sees other countries' regulation as a threat to "American tenets of free speech." 15
13 Alan Charles Raul, World to America: Zip It! ECOMPANY NOW 26 (July 2001), http://www.business2.com/articles/mag/0,1640,12157,FF.htm
15 Id. at 28.
Banamex is not playing fair. It has sued Mr. Giordano twice for the same charges-once as Al Giordano and another as Narco News Bulletin.
As I have worked on this document I couldn't find the point to stop stating my interest in the matter and shift to arguing the issues. My interest is the issues. I will leave the concepts together.
This case seems to have progressed well beyond the traditional pleadings-bound concept of motions to dismiss. I have stated some facts, too. Accordingly, I am verifying this pleading. I point out also that I have referred to a number of assertions by others of matters beyond my personal knowledge; these are stated for the purpose of showing that they have been asserted rather than for personal knowledge of the truth of the assertions. That assertions have been published can be judicially noticeable.
3005 Carlota Rd. N.W.
Albuquerque, N.M. 87104
This memorandum and accompanying exhibits and affidavits are offered to the Court in support of:
Motion to Dismiss by The Narco News Bulletin
Motion to Dismiss by Al Giordano
And are filed together with:
Affidavit by Al Giordano
Affidavit by Al Giordano With Respect to Narco News Bulletin
Affidavit by Karen Thatcher concerning Banamex "Agency" in New York
Key Words for Search Engines: Banamex, Citigroup,
Akin, Gump, Strauss, Hauer and Feld, Thomas McLish,
Michael Madigan, Sandy Weill, Robert Rubin