Philly Mag: Publishing LaBan's Picture Was a Mis-Steak

Philadelphia Magazine made some very tasteful choices in its September 2007 issue. For example, they hired Steve Volk (former senior writer for Philadelphia Weekly whose writing I’ve enjoyed since he worked for Pittsburgh Weekly back in the day), who wrote an engrossing feature about Alex Plotkin’s defamation lawsuit against Craig LaBan. In addition, to fill in for the departing Maria Gallagher they brought in Jason Wilson (spirits columnist for the Washington Post), who wrote two engaging restaurant reviews: Beyond Sushi and Mussel-ing In. Let’s hope they keep him on.

However, there was one decision in this issue that was in bad taste: publishing a picture of Craig LaBan’s face alongside Volk’s article.

To justify this decision, Larry Platt, the editor of Philly Mag, claims that LaBan’s anonymity is a gimmick and that everyone in the restaurant community already knows what he looks like. But the main reason for running the photo, according to Platt, is because he believes the debate about LaBan’s identity smacks of self-importance. “Listen, the guy eats meals and writes about them,” Platt says. “He’s not Valerie Plame, OK?”

Let’s assume for the sake of argument that all of Platt’s assertions are true. Why out LaBan now? Platt admits that he had a long history of extending the Inquirer the courtesy of protecting LaBan’s identity. But Platt’s reasons for outing LaBan didn’t just recently become true; people have been making those same claims for years. In other words, those reasons weren’t enough to out LaBan back then. Why switch gears and end the courtesy now? What changed?

One theory is that the videotaped deposition LaBan was compelled to give in the lawsuit may have created the perception that his days of anonymity were all but over. But, in truth, LaBan’s identity was as protected as ever.

First, the videotaped deposition did not create a threat to LaBan’s anonymity that did not already exist the minute the lawsuit was filed. Plotkin’s lawyer has repeatedly said that he plans to use the video at trial, suggesting that the video is the only way the jury would ever get to see LaBan’s face. But the fact is that if the case were to go to trial, LaBan would be compelled to testify in person. Plotkin’s lawyer meant that he would use the video to impeach LaBan at trial if he says something inconsistent with his deposition. The video deposition was taken far too early in the case for it to be used as a substitute for direct or cross examination at trial.

Second, the judge ordered the videotaped deposition to be kept confidential until trial. When Plotkin noticed LaBan to appear for a videotaped deposition, LaBan moved for a protective order. Although the judge allowed the videotaped deposition to take place, he granted the most important part of LaBan’s motion: the judge ordered Plotkin to keep the videotaped deposition confidential to protect LaBan’s identity. In other words, the judge agreed that LaBan’s identity was worth protecting, despite the fact that Plotkin made arguments similar to the ones Platt is making.

Third, there is little chance that LaBan or that video will ever see the inside of a courtroom. Almost all of the defamation cases brought against restaurant critics were dismissed before trial. Of the few I know of that went to trial, they were either dismissed halfway through or the plaintiffs lost on appeal. Given those stats, if Plotkin’s case isn’t booted on summary judgment (and I predict it will be), it likely will settle before its March 2009 trial date. And if it were to go to trial a year and a half from now, LaBan’s lawyers likely would move to have the courtroom cleared the day LaBan testifies.

When you add it all up, there was no legitimate reason to out LaBan now. All of the reasons Platt gave in his editorial for publishing the picture certainly were true all the while Platt had been extending the courtesy of keeping LaBan’s identity secret. And although LaBan was compelled to give a videotaped deposition, it was clear that LaBan’s identity was as protected as ever and would remain so for the foreseeable future.

All told, though, the damage to LaBan may be minimal. Word on the street is that LaBan lost weight since that pic was taken, so it may not be much of a tell after all. Worst case scenario for LaBan is that he has to wear a disguise when he dines out a la Ruth Reichl.

And in a strange twist of fate, Platt’s transgression may actually help LaBan. In litigation, you identify your opponent’s vulnerabilities and apply pressure. LaBan’s was his anonymity. The videotaped deposition of LaBan was Plotkin’s leverage for settlement. Now that LaBan’s been outed, that leverage is gone.

LaBan knew anonymity wouldn’t last forever. But I’m sure he never thought he might lose it like this—being outed by a peer publication while in the middle of a lawsuit. Here’s hoping LaBan doesn’t hold a grudge.