A defamation lawsuit filed July 11 in the Cuyahoga County Common Pleas Court names 15 area Orthodox synagogues and 22 area Orthodox rabbis as defendants. It claims an announcement written by the Vaad Harabonim of Cleveland, the Orthodox rabbinical council, was intended to ruin a Cleveland Heights man’s reputation in the community.
Akiva Meir Hersh sued the rabbis and synagogues because of an announcement dated Aug. 13, 2018 – an announcement that was subsequently read during services at a number of Orthodox synagogues and later reported on by the Cleveland Jewish News and two Jewish blogs. He is requesting punitive damages in excess of $25,000.
The announcement named Hersh and his home address and said he “is alleged to have engaged in inappropriate behavior with young men under the age of thirteen. We have also learned that police reports have been filed detailing his activities. We understand that he is attempting to create a Boy Scout troop. We are concerned that this is a potentially unhealthy and dangerous situation.”
At least one rabbi named as a defendant was asked by the Vaad Harabonim to read the announcement at services. The announcement was reportedly made at all of the defendant synagogues, according to Hersh’s attorney, Joseph J. Triscaro of Joseph J. Triscaro & Associates in Solon.
The complaint alleges the statements made by the defendants “created the impression that Hersh had engaged in unlawful sexual conduct with young boys under the age of thirteen” and “had the tendency to injure Hersh in his occupation, because no one would desire to deal professionally with someone who engages in inappropriate behavior with young men under the age of thirteen.”
Two Cleveland Heights police reports were filed on the same day related to previous incidents with Hersh. He was not charged in either incident.
The first, filed shortly before 2 p.m. on June 15, 2018, was made by a woman who said during a May 21, 2018, trip to the park with her family and Hersh’s family, Hersh had discussed taking a trip to Texas alone with one of her children and showed the child his gun collection. She said she informed her rabbi, one of the defendants, Rabbi Aharon Lebovics of Young Israel of Greater Cleveland, who told the woman he has heard a number of concerns regarding Hersh and urged her to file a police report.
“We’re aware of it and we’re dealing with it, but that’s all I can say about it right now,” said Lebovics when contacted by the CJN about the lawsuit.
The second report, also filed in Cleveland Heights later on June 15, 2018, was made by a father who alleged Hersh attempted to get close to one of his children and that he had received a phone call from a friend saying Hersh was holding his child’s hand in a “way that seemed suspicious.” The father also discovered the child had a secret cell phone, which he believed Hersh had given the child to communicate secretly. However, there was no SIM card in the phone and the call and text logs were empty. According to the report, the father said the incidents had taken place “over the past couple of years.”
Triscaro said Hersh has not lost his job as a result of the incident but is concerned for future employment. He said he could not remember Hersh’s employer and did not want to make any misstatements.
There are also 50 unidentified John Doe defendants in the case, beyond the named rabbis and synagogues. Triscaro said those defendants would be named when they are able to identify them, but indicated they were part of the Vaad Harabonim.
“From our perspective, the statement was made through the Vaad,” Triscaro said. “We’ve identified at least all the rabbis in the synagogues that were related to the Vaad at that point in time. If any other names or entities come to fruition as it relates to when we start engaging in discovery in particular, they may be named at a later point, but those (defendants) are the ones we were able to identify prior to filing the complaint. ... This has had a very traumatic impact on Mr. Hersh’s life, not only upon him but his family as well. Due to that, that kind of was the reason for proceeding in this fashion. It’s unfortunate what occurred and he’s obviously trying to right that wrong through the trial process at this point in time.”
The case was filed and is in the process of being certified by the court. The case was assigned to Judge Joan Synenberg, but as of July 17, no pretrial conference had been set, so an exact court date remained uncertain. The complaint alleges a count of defamation per se against all defendants, a count of defamation per quod against all defendants, a count of false light against all defendants and a count of intentional/negligent infliction of emotional distress against all defendants.
Attorney Aaron Minc of Minc Law in Orange specializes in defamation cases, particularly cases involving internet defamation, but is not involved in the Hersh lawsuit. Minc said the first place his mind went after reading the case was to wonder if any of the statements made could be considered privileged. Minc wonders where the authors of the statement initially learned the information regarding Hersh. Typically, one of the elements of a defamation lawsuit include negligence on the part of those making the statement, but in Ohio, a lot of things are protected by qualified privilege.
“If it is protected by privilege here, they would have to prove more than just negligence,” said Minc, a Moreland Hills resident. “Generally, something is protected by qualified privilege if it’s held to be made in good faith, it’s a limited statement made to a limited audience only for the purpose of conveying something the other party would have a genuine interest about. It’s pretty broad.”
In Ohio, a person is allowed to make minor errors in a statement if a claim qualifies as privileged, Minc said. Police reports, public filings and statements by the government generally qualify as privileged.
“The letter references a police report; I don’t know if everything they’re talking about there (in the letter) is referring to the police report,” Minc said. “If they’re merely reiterating the police report, there’s a big question of whether it’s qualifiedly privileged based on a fair report defense or not. That would make it a much harder case. If it is qualifiedly privileged, you have to show that the rabbis and other people who published and republished it knew, had actual knowledge, that the information wasn’t true. Which is nearly an impossible standard in Ohio, it’s very hard to prove.”
One thing that does not necessarily make the statement privileged is the fact that it was said in a house of worship by a rabbi.
“No, there’s no special privilege in the context of a pastor (or) rabbi standing in front of their congregation saying something,” Minc said. “They’re equally on the hook if something they said was wrong.”
One aspect of the case Minc found interesting was this was a defamation case where the statement was not initially spread via the internet or social media; the statement was initially posted or read out loud.
“It’s extraordinary in this day and age to see something republished so many times without the internet,” he said.
Publisher’s note: Aaron Minc is a member of the Cleveland Jewish Publication Company Board of Directors.