The Volokh Conspiracy
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From Huang v. Guo, 2019 WL 3206146 (N.Y. trial. ct.), handed down Tuesday by N.Y. Judge Shlomo S. Hagler:
Around May 11, 2017, defendant uploaded a YouTube video to his YouTube channel in which he alleged that plaintiff, is "a negative example of corrupt Chinese government officials." … The video accuses plaintiff of avarice, promiscuity—in particular, of sexual relations with other government officials—cronyism, and graft. The 25-page transcript which plaintiff submitted has a number of underlined paragraphs highlighting the alleged defamation. The complaint alleges "[s]ome of Guo's false and defamatory statements." For example, defendant states:
"In [then-vice-mayor Liu Azhihua's] bedroom, we found a secret. Mr. Liu likes taking naps at noontime…. Who regularly and most frequently appeared in Mr. Liu's bedroom half an hour before his nap? This person is … Ms. Huang Yan, from the Beijing Municipal Planning and Land Resources Management Committee…. After that, Mr. Liu would usually have sexual behavior with Ms. Huang. This occurred basically every time she visited. Accurately, each instance lasted 17 to 19 minutes, with changes in position."
Defendant also noted plaintiff's expensive taste, her love of Hermes bags, scarves, and accessories, and her valuable calligraphy and painting collections). The video asserts that defendant possessed tapes of these encounters and that he submitted them to Director Ling Jihua ("Ling") of the Central Commission for Discipline Inspection ("CCDI"), but that Ling told defendant to hand over all copies of the video to him and never mention their substance again. [Further factual details omitted. -EV]
The court concluded that plaintiff's libel claim could go forward:
[M]any of the allegedly defamatory statements appear not to be expressions of opinion or speculations as to plaintiff's future conduct. On the contrary, defendant went to great lengths to suggest that he was setting forth facts. With respect to plaintiff's activities generally, for example, defendant asserted that [t]here is only one person who would know the truth, and that person is me, Wengui." In addition, defendant asserted that he knew about plaintiff's affair with Mr. Liu because he once possessed videotapes which proved that the two were having sex….
Plaintiff acknowledges that she is a high-ranking official in China. [The defendant accused her of misconduct when she was director of the Beijing Municipal Commission of Urban Planning, and now she's Vice Minister of Housing and Urban-Rural Development. Thus, through her public office she has become a limited purpose public figure within the world of Chinese government. Plaintiff's lack of fame in the United States is not critical here, where (1) defendant posted the videos on YouTube, thus making them available to people worldwide, and (2) defendant posted his videos in Chinese and focuses on the alleged corruption in Beijing among officials, thus directing the videos to Chinese-speaking people concerned with that country's politics.
[T]he plaintiff alleges in the complaint that defendant "knew the statements made by him on above said video were false and misleading" and that defendant posted the video on his popular YouTube channel "maliciously for the sole purpose of impugning [plaintiff's] reputation and standing and casting aspersions upon [her]." … Plaintiff repeatedly states in the complaint that, at the very least, defendant recklessly disregarded both the truth and the substantial probability that plaintiff would be harmed by his statements. This showing is sufficient to withstand the pre-answer motion to dismiss the complaint [under the standards applicable to libel lawsuits by public figures, including as to punitive damages].
But the court held that an injunction was unavailable:
"Prior restraints on speech are the most serious and the least tolerable infringement on First Amendment rights, and any imposition of prior restraint, whatever the form, bears a heavy presumption against its constitutional validity" (Brummer v Wey, 166 AD3d 475, 476 [1st Dept 2018] [internal quotation marks and citations omitted]). Even "highly offensive, repulsive and inflammatory" speech cannot be restrained unless it "communicate[s] a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" (id. [internal quotation marks and citations omitted]). Applying this principle, courts have found that "[p]rior restraints are not permissible … merely to enjoin the publication of libel." Plaintiff's complaint does not assert facts sufficient to justify such relief.