(CN) - Former New York Times CEO Russell Lewis and his son must face a lawsuit alleging blackmail because the First Amendment does not protect such speech, New York's highest court ruled.
Ronald Posner claims that he did not get tenure at Siwanoy Elementary School in Westchester County because of interference from his former in-laws.
In 2008 his wife of three years, Erin Lewis Posner, accused him of misconduct having an affair with a student's mother, who was also a substitute teacher at Siwanoy.
Posner and Erin had just had a child, Sydney, days before the couple began divorce proceedings.
Erin's father, Russell Lewis, and brother, David Lewis, told Posner to leave the marital home, which Russell Lewis owned.
Russell, who served as president and CEO of the New York Times from 1997 until his retirement in 2004, threatened to "make trouble" for Posner if he did not "go quietly," according to the complaint.
David, an attorney who resigned from Proskauer Rose in August 2010, allegedly helped represent his sister, Erin, in the divorce action.
Posner says Russell offered him money to relinquish his parental rights and make a "clean break" from Erin. When Posner refused, Russell and David Lewis complained to the school board about Posner's alleged misconduct, according to the complaint.
David allegedly demanded that the school board revoke Posner's teaching license, citing emails between Posner and his alleged mistress, who was the parent of one of Posner's students as well as a substitute teacher.
Posner resigned after he learned that he would not have enough votes on the school board to gain tenure.
Posner's lawsuit against Russell and David claims that the pair interfered with his tenure track.
In a motion to block dismiss, the Lewises claimed their alleged comments were protected speech in the public interest. The trial court ruled in Posner's favor, and a divided panel of appellate judges upheld that decision in December.
The Court of Appeals, New York's highest court, also affirmed.
"According to Posner, Russell attempted to coerce him into relinquishing his parental rights by offering him money and threatening to reveal certain information to school authorities to ensure that he was denied tenure," Judge Victoria Graffeo wrote for the court. "And when Posner refused to accede to the demand, defendants made good on the threat."
"Posner's complaint therefore does not merely allege a malicious motive; rather it asserts what is in essence a blackmail scheme," she added.
"Contrary to their position, their complaints to school officials cannot be isolated from this coercive scheme, which constituted a single and integrated course of conduct," the Feb. 21 decision continues.
This alleged conduct is not privileged, so Posner can pursue claims of tortious interference with prospective contractual rights.
In a concurring opinion, Judge Robert Smith said that the Lewises' communications did not merit immunity, aside from the alleged "blackmail" motivation, because "they did not involve either a matter of public concern or an accusation of criminal conduct."
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