In a victory for free speech, a Manhattan judge has dismissed a $3 million lawsuit against Upper East Site brought by The Comic Strip, the iconic Upper East Side comedy venue whose antisemitic and anti-vaccination social media post last year embroiled the venue in controversy. The judge even went as far to say that allowing the suit to continue would be unconstitutional.
“This Court upholds the importance of the First Amendment in protecting the right to free speech by the press,” wrote the Honorable Lisa S. Headley, in her decision filed Tuesday morning in Manhattan Supreme Court.
“The plaintiff [The Comic Strip] fails to demonstrate actual malice, and thus, it would be a violation of the First Amendment to permit the plaintiff to proceed with this action against the defendants [Upper East Site],” Judge Headley explained.
After receiving a tip from a Jewish Upper East Side resident concerned about what they saw, Upper East Site first reported about The Comic Strip’s offensive Instagram post on January 9, 2022, which included video of the American flag hanging above the club and featured antisemitic and anti-vaccination hashtags.
“#Nurenberg [sic],” is a misspelled reference typically made by anti-vaxxers drawing false equivalency between Covid-19 vaccination mandates and the human experimentation done on Jews by Nazi Germany and the subsequent establishment of the Nuremberg Code— a set of ethical principles for medical research— during war crimes trials held following the Holocaust.
The Comic Strip’s post even went further to declare “f(uck) mandates” and declare “freedom of choice,” at a time when New York City was still mandating employees of all private businesses to be vaccinated against Covid-19 and establishments were required to check that their customers were vaccinated.
“I am disappointed in Comic Strip Live’s decision to condone hatred and division in our community and call on you to issue a formal apology condemning the toxic comparisons between COVID-19 mandates and the atrocities of the Holocaust,” wrote Council Member Menin to The Comic Strip last year.
One week after publishing a second article about The Comic Strip’s post, which focused on that letter, The Comic Strip sued Upper East Site and Council Member Julie Menin, as well as a second news organization that covered the club’s offensive post and Menin’s remarks.
In a rambling complaint, The Comic Strip’s lawyer — who was actually employed by the City’s Department of Consumer and Worker Protection at the time he filed the suit — sought $3 million in damages from Upper East Site, in addition to a declaration from the court that the business is not antisemitic, claiming “the defamatory statements made and published by the Defendants were intentional, willful, wanton, malicious and oppressive, [and] were motivated by the greed of the Defendant. [sic]”
The Comic Strip’s lawyer, who repeatedly confused Upper East Site with a second news organization in filings and mistakenly referred to Council Member Menin as a “congresswoman” at one point, even went as far as to say that “Julie Menin should be apologizing for acting outside the scope of her employment in attempting to destroy a revered comedy institution.”
Last November, a judge dismissed the lawsuit against Council Member Menin, noting that not only was she acting in her official capacity, but that her description of the club’s post as being antisemitic was protected free speech. Furthermore, the judge’s opinion found that The Comic Strip did not even show any actual damages to its business through the reporting of the club’s antisemitic post.
Upper East Site, represented by litigation specialist Judith Swartz from Emmet, Marvin and Martin, LLP, answered The Comic Strip’s complaint by arguing to the court that the terms “antisemitic” and “anti-vaccination” were not only protected free speech, but also true.
“First, it can objectively be considered true that a business that does not believe its customers must receive the Covid-19 vaccine to enter is anti-vaccination,” Swartz wrote in filings.
“Second, it can objectively be considered true that a business that compares Covid-19 vaccinations to the atrocities of the Holocaust is antisemitic because it falsely equates two diametrically different events and trivializes the real suffering of millions of Jews under the Nazi regime.”
To wit: the owner of The Comic Strip, Jean Tienken — who took control of the Upper East Side venue following her husband’s death, which she notes was not from Covid, but does not provide any further details — appeared on a right-wing podcast called ‘Conservatish,’ which was filmed within the comedy club.
“When this whole vaccine thing started, I knew I was never gonna [sic],” Jean Tienken admits in the episode titled ‘The Comic Strip vs Mandates.’
“Like with the people on the phone, they were taught from the very beginning, if anybody calls asking about vaccine cards you say, ‘We don’t segregate at the Comic Strip, we don’t discriminate’ and that was that – that’s their answer. And when the Health Department comes in, they’re told that ‘this is my first day here, I don’t know where anything is,’” said Tienken, explaining how she instructed her own employees to mislead Health Department inspectors as hundreds of New Yorkers were still dying of the virus each month.
In that same podcast, Jean Tienken also admits that she was told by a friend that the Instagram post was, in fact, antisemitic.
“I took it down immediately because you know what, I’m not Jewish. I can’t… I and it was Sunday morning. I had no one to ask,” Tienken explained, then added “I did ask Victoria. Victoria said no, she didn’t find it to be antisemitic, but that some Jews did.”
Tienken also bragged about the harassment Upper East Site had received following its reports, saying that the site being forced to turn off the comment option on their Instagram post as a result of being “destroy[ed], is something to be proud of.”
At the end of the day, the judge agreed with Upper East Site.
“The court finds that the plaintiff failed to submit persuasive evidence that defendant has acted with actual malice, and any evidence set forth by plaintiff merely illustrates, at most, journalistic freedom,” added Judge Headley.
“Tuesday’s decision was the right one — in line with the law and the freedoms of this nation to which we hold dear,” attorney Judith Swartz explained in a statement on behalf of The Upper East Side’s News Leader.
“Let this ruling serve as a reminder, Upper East Site will confront antisemitism in all its forms,” Swartz continued, “Even the financial burden of frivolous litigation will never be enough to stifle the freedom of the press.”